Search Results for: puberty blockers consent/page/44/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
13 March 2012 by Rosalind English
Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) – read judgment
Jean-Dominique Bauby’s eyelid-blinking account of Locked-in Syndrome had us all quivering at the thought of being blindsided, as he was, at the peak of his career, on some banal afternoon outing. One moment you’re in charge, the next, you’re a living, conscious cadaver, entirely at the mercy of your family (if you’re lucky), the state (inevitably), and, you’re very unlucky, the police.
This is humanity at its most pinched and wretched, one might have thought more in need of the arsenal of human rights than any other situation. But all the big guns are elsewhere, it seems. We have the political stand-off in the Bill of Rights Commission, and all the other noisy controversial products of the human rights industry, welfare, asylum, crime, deportation, prisoner rights and press freedom. In the meanwhile, a much quieter, but much starker drama unfolds in the wake of Pretty , Purdy et al. Now we have Tony Nicklinson, whose case takes human rights ideology back to its roots: a person with his back against a wall.
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16 June 2013 by David Hart KC
The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council (Interested Party) [2013] EWCA Civ 673, 276, 14 June 2013 read judgment
This case came before the Court of Appeal earlier this year (read judgment of April 2013, and Rosalind English’s earlier post giving the background), when the landowner Port’s attempts to exclude members of the public from West Beach, Newhaven were unsuccessful. They were defeated by the beach being registered as a “village green” – improbable though that description may sound to those not versed in this arcane bit of the law. The lawfulness of this registration in turn depended on it being established that members of the public had used the beach for at least 20 years “as of right” – i.e. “without force, without stealth and without permission” – an age-old lawyers’ mantra that has mercifully been translated from the original Latin in recent times.
But the earlier hearing before the CA left over for determination one issue, the Port’s contention that they had been deprived of property rights in breach of Article 1 of Protocol 1 (A1P1) of ECHR, because of a retrospective change of the law adverse to them. This is what last week’s decision is about.
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9 December 2010 by Rosalind English
The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions(Appellant) [2010] UKSC 54 – Read judgment / press release
The Supreme Court has ruled that where benefits are overpaid as a result of a mistaken calculation, the department responsible cannot claim these amounts back via the common law route of restitution; the Secretary of State’s only recourse is via Section 71 of the Social Security Administration Act.
The following summary is taken from the Supreme Court site’s Press Release, with my comment below:
This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Administration Act 1992 (the “1992 Act”) provides the only route to recovery (nb. the Supreme Court press summary wrongly refers to the Social Security Benefits Act 1992).
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8 November 2013 by Rosalind English
AB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – read judgment
Here unfolds a story of sophisticated abuse of the asylum system in this country by an individual skilfully shamming persecution. Nor did the security agents who escorted the claimant on his departure come up smelling of roses: it emerged during the course of these proceedings that they had falsified a room clearance certificate to boost the defence case.
The judgment also points up the potentially far-reaching effect of the Charter of Fundamental Rights of the European Union and how this might render all the handwringing about the European Convention on Human Rights irrelevant, and a home grown Bill of Rights otiose.
Factual background
The claimant, whom Mostyn J describes as “a highly intelligent, manipulative, unscrupulous and deceitful person”, arrived in this country in 2005, was refused asylum and was deported in 2010. He sought judicial review of the Home Secretary’s decision to refuse his claim and return him to his state of embarkation, “Country A” (so designated because there was a reporting restriction order made in the original proceedings anonymising both the claimant, his country of origin, and the political organisation of which he claimed to be a member. Mostyn J “reluctantly” went along with that order in this proceedings, since neither of the parties applied to have it reviewed.)
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14 August 2023 by Ruby Peacock
In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
The first part explored whether coroners should have jurisdiction to investigate stillbirths.
This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?
For a brief introduction to Aisha Cleary’s case, please see Part 1.
Article 2 ECHR rights in utero
Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]
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31 January 2016 by Adam Wagner
Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin) – Read judgment
The High Court has ruled in the case of Steinfeld and Keidan v Secretary of State for Education, a human rights challenge to the law of Civil Partnerships. Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.
The case arises from the odd state the law was left in after same-sex couples were given the legal right to marry in 2014. Since 2005, same-sex couples had been allowed to form “Civil Partnerships” which give them essentially the same legal rights and protections as marriage without being able to actually marry. Only same-sex couples can have a civil partnership. Civil Partnerships were a kind of half-way house; the message they sent was that the (New Labour) government wanted to give same-sex couples legal protection akin to marriage but didn’t feel that society was quite ready for full marriage equality.
Once same-sex couples were given the right to marry in 2014, the law was left in a bit of a mess. Same-sex couples have dual means of recognising their partnerships (Civil Partnerships and Marriage) whereas opposite-sex couples could only marry. This is clearly an unintended consequence of the winding route to marriage equality rather than any well-thought out plan.
In 2014, it would have been open to the government to abolish civil partnerships altogether or permit everyone to enter into them. Instead, a “wait and see” approach was adopted.
Rebecca Steinfeld and Charles Keiden (full disclosure: they are friends of mine) wanted to enter into a civil partnership but were prevented because they were not of the same sex. They brought a human rights case against the government saying they were being discriminated against by the current law.
Mrs Justice Andrews rejected their case in strong terms. You can read the full judgment here. I recommend doing so – it is tightly argued and very clear.
In cases involving the right to family and private life, there are two basic stages a judge needs to consider. First, is there an interference with the right – in other words, does the thing that is being complained about interfere with family or private life as it is defined in the European Convention and court judgments. Let’s call that Gate 1. If you get through Gate 1, you then have to get through Gate 2, which is to show that the interference was not justified with reference to proportionality (did the end justify the means?) and other balancing factors which are the text of the right itself.
The claimants here didn’t get through the first gate. Mrs Justice Andrews accepted the government’s argument that Article 8 of the European Convention on Human Rights (the right to family and private life) was not even engaged, let alone breached. Here’s a key bit of the judgment explaining why:
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The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience. That was the case both before and after the enactment of the 2013 Act. Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same- sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 [Same-Sex Marriage] Act. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one.
See the powerful argument on UK Human Rights Blog (written before the judgment) about why this might be problematic.
As judges usually do, Mrs Justice Andrews went on to consider “Gate 2″ anyway, in case she was wrong about Gate 1. She accepted the government’s argument that their approach to the issue (“wait and see”) had been perfectly reasonable.
Where next? Potentially an appeal. The BBC reports the couple were given permission to appeal which means they can appeal to the Court of Appeal if they choose to do so. If they do appeal, they will have to convince the Court of Appeal that there has been an interference with the right to family life (Gate 1 – certainly arguable) but also that the interference was not justified. Gate 2 will be harder.
As things stand, the law is in a mess. Even if it is not a breach of human rights to refuse opposite sex couples the right to have civil partnerships, that doesn’t mean it is fair or right.
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20 January 2013 by David Hart KC
Inuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it
The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.
But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.
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27 July 2011 by David Hart KC
Update | Thomas v. Bridgend County Borough Council [2011] EWCA Civ 862, Court of Appeal. Read judgment
Conventional wisdom has it that an Article 1 Protocol 1 (the human right to peaceful enjoyment of property) environmental claim faces all sorts of difficulties. The claimants may have a right to the peaceful possession of property, but that right is immediately counter-balanced by the public interest of the scheme under challenge. Furthermore, the court does not look too closely at the detail when applying the proportionality test, as long as the scheme is lawful. Or does it?
Our case is a refreshing example of where manifest injustice was avoided by a successful claim under Article 1 of the First Protocol of the ECHR. It also shows off the muscles of the duty to interpret legislation, under section 3 of the Human Rights Act 1998, in accordance with the ECHR.To find what it was about, we need to go to the Hendre Relief Road in Pencoed, Bridgend and those who live nearby.
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24 May 2010 by Adam Wagner
Under threat?
The Coalition Government has pledged to “protect” the right to trial by jury. It is often assumed that the a jury is needed to ensure a fair trial, but Sir Louis Blom-Cooper argues in an interesting article in the Guardian that juries may not always be essential, particularly in cases involving serious organised crime.
Blom-Cooper, an academic and barrister, argues that jury-less trials need not always be illiberal. He says “The experience in Northern Ireland over three decades suggests that serious organised crimes can effectively and efficiently be tried before a professional court ‑ a single judge or perhaps three judges.” He also suggests that defendants ought to be able to waive their right to trial by jury as is the case in many other jurisdictions.
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2 November 2020 by Samuel March
R v A [2020] EWCA Crim 1408
On 29/10/2020, the Court of Appeal dismissed an appeal against an aggravated burglary conviction brought by a teenage victim of human trafficking.
The applicant’s personal circumstances, including as a victim of trafficking, were properly reflected by way of mitigation of sentence. But his culpability and criminality were not extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted.
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7 November 2011 by Melina Padron
Sir Nicolas Bratza
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
Family Justice Review
Last week the final report of the Family Justice Review (on Family Law) was published. The Family Lore blog has provided us with a summary of the key findings and a few comments on the review (so did Adam Wagner). See also the Pink Tape blog’s post on the topic.
Tackling the problem of delay seems to be the heart of the Family Justice Review’s proposals, evidenced by this piece, written by David Norgrove, who chaired the Family Justice Review, about the need to tackle the problem of delay in the family justice system when it comes to child protection cases. Norgrove says such delays are damaging to children and suggests, amongst other things, that children’s welfare should not be trumped by parents’ rights in these circumstances.
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12 February 2012 by Sam Murrant
Welcome back to the human rights roundup, your recommended weekly intake of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Abu Qatada released on bail
Abu Qatada was released on “very restrictive” bail conditions this Monday in a decision by the Special Immigration Appeals Commission on the basis of both British legal precedent and Strasbourg human rights case-law. This also follows from the recent ruling by the European Court of Human Rights that he should not be returned to his native Jordan, where torture-derived evidence may be used against him in trial.
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20 October 2011 by Melina Padron
Welcome back to the human rights roundup, a regular bulletin of everything we have not managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The UK Supreme Court under the spotlight
Last week the UKSC’s constitutional status, message, work and composition were the focus of various articles.
Roger Masterman and Jo Murkens tried to establish what kind of court is the UK Supreme Court, with particular reference to its constitutional status. Amongst many interesting points, Masterman and Murkens believe that as a result of some of its own features, the Court has begun cementing its place as a constitutional actor of its own right.
Richard Cornes, for the Guardian, believes that the most interesting message the Supreme Court is sending has gone almost unheard. Cornes argues this is the result of a combination of the obstacles to the efforts to make the Court more transparent, and the quality of coverage of the Court’s work. In particular, Cornes believes readers of mainstream media (he cites the Daily Mail, the Times and the Guardian as examples) will not have the same impression of the Supreme Court as the person who follows the UK Human Rights blog’s Twitter feed or checks the Guardian Law or Times Law pages online.
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28 May 2010 by Adam Wagner
General Dental Council v Rimmer [2010] EWHC 1049 (Admin) (15 April 2010) – Read judgment
A dentist has been ordered to hand over his patients’ medical records to a court in order to help his regulator prosecute him for misconduct. The case raises interesting questions of when the courts can override patient confidentiality which would otherwise be protected by the Human Rights Act.
When health professionals are being prosecuted for misconduct,their patients’ confidential records will almost invariably be disclosed to the court if requested, even without the patients’ consent. Some may find this surprising, given the fact that medical records almost invariably contain highly private and potentially embarrassing information which a person would justifiably not want disclosed in a public court. However, the situation is not as simple as it first appears, as demonstrated by the recent case of an allegedly dodgy dentist.
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1 February 2013 by Guest Contributor
AI v MT [2013] EWHC 100 (Fam) – Read judgment
The Times (amongst others) today deserves a spell on the legal naughty step. Its headline announces that a judge’s decision “opens way to divorces by Sharia“. One might expect therefore to find that the judgment giving rise to the headline – the decision of Baker J in the Family Court in AI v MT – was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):
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