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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/40/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The Scottish and Northern Irish Human Rights Commissions have issued a joint statement responding to the Conservative Party’s plans to repeal the Human Rights Act and introduce a British Bill of Rights.
Professor Alan Miller, Chair of the Scottish Human Rights Commission (SHRC), is quoted on their website. Interestingly, he makes the link between the HRA and devolution for Scotland: “The Human Rights Act in combination with the Scotland Act is an important pillar of devolution for Scotland. Rather than needing to be repealed it needs to be progressively built upon in Scotland.” Justice, a Human Rights organisation, made the same point on devolution in a recent report.
Professor Monica McWilliams, Chief Commissioner of the Northern Ireland Human Rights Commission said: “Nowhere in the world has the repeal of existing human rights protections been a starting point for discussing a proposed Bill of Rights.”
Read more:
The Joint Statement (also reproduced after the page break below)
RightsInfo (www.rightsinfo.org) has just had its first full week and I wanted to update you on how things are going.
Have you seen our brand new launch film,This is RightsInfo? It has just been released, and we love it – it explains what RightsInfo is about and how we are going to change the way we communicate about human rights. If you were at the launch party, you may even spot yourself on the film.
What week it has been. We launched seven days ago. The party at the Free Word Centre was packed out. After seven days we have already had over 40,000 page views on the site. The reaction has been amazing – you can read a sample it in this post: “Wow… just wow”, People Really Like RightsInfo And That Makes Us Very Happy.
Fagan, R (on the application of) v Times Newspapers Ltd and others [2013] EWCA Civ 1275 – read judgment
Only “clear and cogent evidence” that it was strictly necessary to keep an offender’s identity confidential would lead a court to derogate from the principle of open justice. The possibility of a media campaign that might affect the offender’s resettlement could not work as a justification for banning reporting about that offender, even though a prominent and inaccurate report about him had already led to harassment of his family.
This was an appeal by a serving prisoner, SF, against the dismissal of his application for anonymity and reporting restrictions in judicial review proceedings. Continue reading →
I argued last week that the Commission should open up more, but leaked internal emails were not exactly what I had in mind.
The resignation is hardly a surprise. Pinto-Duschinsky’s relationship with the other Commissioners has been rocky from the start, and he has been unabashed about complaining publicly when he has felt his views were being ignored. When the Commission published its initial consultation document he instantly told the Daily Mail that he ”strongly regret[ed] the terms in which it has been presented.” He was concerned that the document ignored the extent to which the European Convention had undermined Parliamentary Sovereignty. However strong Pinto-Duschinsky’s views, this public airing of Commission laundry must have made very difficult to hold reasoned debates behind closed doors.
“No negligence where the doctors disagree” – used to be the approach of the courts to expert evidence in medical cases. That deference has eroded in recent years.
Rosalind English talks to James Badenoch QC, who acted for the claimant Montgomery in the most recent Supreme Court case on informed consent in medical cases.
Law Pod UK will be following up the debate on Bolam expert evidence in future episodes.
Law Pod UK is available for free and without ads on Audioboom, iTunes, PodBean, The Podcast App or wherever you get your podcasts.
The claim for over £1 million taken by a father against an IVF clinic for failing to notice that his signature on the consent form had been forged has been widely reported in the press. In the latest Law Pod UK podcast Rosalind English discusses the case with David Prest. Whilst the McFarlane principle defeated the financial claim, Jay J had some stern words to say about the actions of the mother and the procedures of the clinic.
Episode 12 of Law Pod UK is available for free download from iTunes.
R (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin) 4 October 2013, judgment behind Lawtel paywall UPDATED x 2
An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.
Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.
On Tuesday the government published its response to the public inquiry into Brook House Immigration Removal Centre. The inquiry was a response to a 2017 investigative documentary, which included footage of staff abusing detained people. The inquiry’s report was published on 19 September 2023. In its response the government described the documentary footage as “utterly shocking”, but emphasised the fact that “[d]etention is and will remain a fundamental element of the immigration system”. The government rejected the report’s key recommendation that it should set a time limit on detention. The response sought to highlight changes that have been made across the immigration detention estate since the events of 2017, such as the improved ratio of custodial staff to detained persons and the introduction of accredited training and a code of conduct for staff. The government stated that a “comprehensive review” into complaints and whistle blowing processes is being undertaken.
In other news, a memorandum disclosed to the Afghanistan Inquiry shows that in 2011 a UK Special Forces commander raised concerns that “there is in effect an unofficial policy… to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained… and the subsequent fabrication of evidence to suggest a lawful killing in self-defence”. The inquiry is investigating alleged unlawful conduct by UK Special Forces in Afghanistan between 2010 and 2013 and the adequacy of the Ministry of Defence’s response to concerns that were raised at the time. Johnny Mercer MP, the Minister for Defence People and Veterans, has stated in his witness statement that he was shown a copy of the memorandum but not allowed to keep it. Mercer been ordered to disclose the names of those who told him about alleged war crimes to the inquiry.
In international news
The Hong Kong government passed new national security legislation known as ‘Article 23’. The new law increases prison sentences for national security related offences, including a maximum jail sentence of 10 years for sedition where an ‘external force’ is involved. Any speech which is critical of the government could potentially come under the scope of sedition, and Hong Kong’s justice minister has since stated that a person might commit an offence if they share criticism of the legislation online. The legislation gives the police the power to detain someone for 16 days without charge and to prohibit the person from consulting with a lawyer for 48 hours. UK Foreign Secretary David Cameron previously stated that the legislative proposals would “have a negative impact on the people of Hong Kong in the exercise of their rights and freedoms”. The EU has expressed concerns over the legislation’s ‘sweeping provisions and broad defintions’ and described the increased penalties, which have extraterritorial reach, as “deeply worrying”.
In the courts
The Court of Appeal ruled that an individual’s views on climate change do not form part of the ‘circumstances’ of criminal damage which is committed as part of a protest. Previously, climate protesters had successfully relied on the defence that they honestly believed the owner of the property would have consented to the damage if they had known of the damage “and its circumstances”. The Court emphasised that the “circumstances must belong to the damage, not to the defendant”, and that there “must be a sufficient connection between the damage and its circumstances”. The case under consideration involved a climate protester (“C”) who had caused damage to the offices of various charities and political parties. The court held that “what C had to say about the facts of or effects of climate change could not amount to the circumstances of the damage” and that such evidence would be inadmissible in relation to the consent defence.
Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site. The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity to deal with his concerns.
So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.
“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.
Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:
A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.
A clinic in Newcastle upon Tyne has been granted the UK’s first licence to carry out a trial of “three person IVF” (Mitochondrial Replacement Therapy, or MRT). The fertility technique is intended to be used by couples who want to prevent genetic diseases being passed on to their children, due to faulty mitochondrial DNA. The process uses genetic material from the mother, father and a female donor, and replaces faulty genetic material in the mother’s DNA with the female donor’s genetic material.
There have already been a small number of three parent IVF pregnancies elsewhere in the world, resulting in reportedly healthy babies.
However the technique is not without its controversies and critics. Continue reading →
As invidual consumers we are constantly exhorted to separate the goods and substances we want to get rid of into “rubbish” destined for landfill or items for recycling. Clearly we have to pay attention to this to avoid material going into landfill that could be recycled or turned into energy, but not only that; we need to be aware of the cost of goods being manufactured that never see the light of day at all, because by virtue of being mixed by less pristine goods, they count as waste, with all the consequences that entails.
In a recent ruling the CJEU considered the question of retail goods that have been returned by consumers or become redundant in the seller’s product range: Openbaar Ministerie v Tronex BV C-624/17.
The case should raise alarm bells. When we return an item against a refund of the purchase price we do not think we are discarding it. The CJEU ruling turned on the application of Article 3(1) of the Waste Directive 2008/98/EC, which provides that
‘“waste” means any substance or object which the holder discards or intends or is required to discard’.
Individual consumers are clearly not liable under waste legislation for returning goods. But the concept of waste forms the basis of a criminal penalty for possession in EU member states. So once those items reach the retailer the situation changes, because it may or may not become “waste” in their hands.
For those looking to keep on top of their CPD over the summer, in Episode 204 Emma-Louise Fenelon interviews John Whitting KC and Robert Mills about recent developments in clinical negligence.
Robert Mills takes listeners through three recent cases on material contribution:
CNZ v Royal Bath Hospitals NHSFT & The Secretary of State for Health and Social Care [2023] EWHC 19 (KB)
CDE v Surrey and Sussex Healthcare NHS Trust [2023] EWCA Civ 1330
Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377
John Whitting KC outlines developments in the law of informed consent:
Bilal and Malik v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605
McCulloch and others v Forth Valley Health Board [2023] UKSC 26
And the episode concludes on a discussion of expert evidence:
Woods v Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB)
CE (Cameroon) [2023] UKAITUR PA011122020
The podcast has previously covered expert evidence in the following episodes:
Disaster Avoidance for Experts with Margaret Bowron KC here
Disaster Avoidance for Experts with Neil Sheldon KC here
The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.
This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.
An NHS Trust v Child B and Mr and Mrs B [2014] EWHC 3486 (Fam) – read judgment
I posted earlier this year a discussion of Ian McEwan’s pellucid and moving account of the difficulties encountered by judges when steering between the rock of parental faith and the hard place of children’s best interests (The Children Act, 2014).
This judgment, although handed down four months ago, has just been published, and confirms that judges may be resolute, however politely, in the face of parents’ insistence that they know what is best for their children.
Background Facts
The application concerned a very young child (B) who sustained burn injuries in an accident. The clinical team responsible for his care advised that the best practice treatment for his injuries was skin grafting and that there was a significant risk that he would require a blood transfusion . To avoid infection and for the best possible result, skin grafts should be carried out no later than 7 to 10 days from the initial burn. The Court was also told that in the event of a skin graft taking place without the ability to give a blood transfusion, there would be a risk of death as a result of sepsis developing. Continue reading →
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The Scottish and Northern Irish Human Rights Commissions have issued a joint statement responding to the Conservative Party’s plans to repeal the Human Rights Act and introduce a British Bill of Rights.
“Marriage of same sex couples is lawful”, begins the Government’s new 
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