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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/50/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
In these conjoined appeals the Court of Appeal (Sir Terence Etherton MR, Irwin and Coulson LJJ.) have taken the opportunity to deal with a number of issues relating to the reasonableness and proportionality of costs in PI and Clinical negligence cases and the proper approach to the assessment of those costs.
The case is important because it considers and explains the unique position of ATE insurance premiums in clinical negligence cases. In clinical negligence it is almost always necessary for an ATE insurance policy to be obtained by a Claimant to insure against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation. Specifically, the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (no.2) Regulations SI 2013/739, provide (by way of exception to the general rule in s.46 LASPO 2012) that such premium (insofar as it relates to the risk of incurring liability to pay of expert reports relating to liability or causation in respect of clinical negligence in connection with the proceedings) may be recovered. Brooke LJ had stressed in Rogers v. Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134 the availability of such ATE insurance and the recoverability of the relevant premium, is an important means by which access to justice continues to be provided in clinical negligence cases. It was perhaps therefore unsurprising that the present Court of Appeal began their analysis of the issues in the instant case by saying:
Access to Justice must therefore be the starting point for any debate about the recoverability of ATE insurance premiums in any dispute about costs.
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.
Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.
The UK government is letting companies “off the hook” for human rights abuses, according to Amnesty International. In an 80-page report, Obstacle course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises, Amnesty claims that the National Contact Point (NCP) within the Department for Business Innovation and Skills – who is charged with handling complaints that private contracts may conflict with human rights commitments – is “unqualified to make complex human rights judgments”. The NCP is a non-judicial mechanism tasked with holding companies to account over breaches of the international standards set by the Organisation of Economic Cooperation and Development (OECD) – but has, it seems, rejected 60% of human rights complaints in the past five years without full investigation.
Amnesty describes the NCP as “totally failing in numerous ways”, with its complaint handling procedure being “inconsistent, unreliable and biased towards businesses” resulting in companies being let “off the hook”. The failures to investigate include allegations of serious abuse, such as claims that Vodafone, BT and others allowed GCHQ to access its networks for the mass interception of phone calls, emails and Facebook posts, which it shared with the US authorities under the Tempora program.
The all-party foreign affairs select committee is currently investigating whether the Foreign Office has downgraded its commitment to defending human rights in favour of trade. MPs on the committee decided to hold an enquiry after the permanent secretary at the Foreign Office, Sir Simon McDonald, commented that human rights no longer had the same profile within his department that they had in the past.
A BIS spokesperson has said in response that their review process meets all the obligations under the OECD guidelines for trading and that there should be no suggestion the government is not committed to human rights.
Last week also saw David Cameron describe UK arms exports to Saudi Arabia as “brilliant” – on the same day that the European Parliament voted for an arms embargo on the country for its aerial bombings on Yemen.
Other news
Last week a seven-judge Supreme Court heard a case on whether the minimum-income visa requirements for UK nationals to bring over a non-EU spouse are in contravention of the right to respect for private and family life under Article 8, the Guardian reports. Under the Family Migration Rules, which changed in July 2012, UK nationals must have available funds equivalent to a minimum gross income of £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child of non-British citizenship. Two of the appellants, Abdul Majid and Shabana Javed, are British and married to Pakistani nationals; another, MM, is a Lebanese refugee; and the fourth, AF (also MM’s nephew) is a refugee from the Democratic Republic of Congo. The appellant counsel described the threshold as “completely unachievable” for many. Judgment is expected within six months.
Proposals to replace the Human Rights Act with a British Bill of Rights have been “put on ice”. Though it is claimed that the legislation is finished and “sitting on a desk inside No.10”, Downing Street is refusing to publish it, allegedly due to Gove’s decision to “defect to the Out camp” in the referendum. An unsurprised David Allen Green comments that the Human Rights Act is not likely to be repealed in this Parliament, saying that the hurdles to doing so still remain (such as the Good Friday Agreement), and suggests that the Conservatives may have begun to realise that its repeal and replacement “is not worth the time and effort”.
In the Courts
Civek v Turkey – The Court held unanimously that the Turkish authorities had violated Article 2 (right to life) by failing to protect the life of a woman who had been seriously threatened by her husband, HC. Ms Civek had made continued complaints of harassment to the Turkish authorities yet they had failed to take measures reasonably available to them to avoid her murder. Ms Civek had been subjected to sustained abuse from her husband culminating in 2010 in his remand in custody and a court order to refrain from being violent towards his wife. After his release in November 2010 (under judicial supervision), Ms Civek had complained that he was threatening to kill her. Again in December 2010 Ms Civek lodged a complaint, which led to HC being charged with threatening to kill her – but the State Prosecutor took no practical action, even though the husband could have been legitimately arrested for non-compliance with court orders. The Court found the authorities should have acted to protect Ms Civek’s life, and through their failure, her husband had been able to murder her on a street in January 2011, stabbing her 22 times.
Société de Conception de Presse et d’Édition v. France – An order by the French domestic courts that an unauthorised photograph published by Choc magazine be blacked out was not a violation of freedom of expression under article 10. Choc magazine, published by the applicant company, had published photos of a young man, IH, taken whilst he was in captivity, wearing shackles, and showing visible signs of torture. He had later died from his injuries. The Court found that the photograph had never been intended for public viewing, permission had not been obtained from IH’s relatives, and that its publication showed a grave disregard for the grief of his family. It was therefore a serious interference with the private life of IH’s relatives. The Paris Court of Appeal had ordered that the photograph in question be blacked out in all magazines put on sale, rather than withdrawn completely. The European Court of Human Rights found that such a restriction on freedom of expression was proportionate, as the text of the report remained unchanged, and that in the circumstances the penalty imposed would not have a “chilling effect” on freedom of expression.
Nasr and Ghali v Italy – This case concerned the CIA abduction and extraordinary rendition (the transfer of a person without legal process to another country for interrogation where there is a risk they might be tortured) with the cooperation of the Italian authorities, of the Egyptian imam Abu Omar (also known as Osama Nasr), who had been granted political asylum in Italy. He was held in secret in Egypt for several months in cramped and unhygienic cells where he was periodically interrogated and tortured. An investigation into Mr Nasr’s disappearance had been carried out by the national authorities but this had been ineffective due to the executive’s invocation of ‘State secrecy’ – which resulted in those responsible being granted impunity.
The Court found in respect of Mr Nasr violations of Article 3 prohibition on torture (in previous cases the Court had already held that the treatment of detainees under the CIA’s extraordinary rendition programme amounted to torture), Article 5 (right to liberty and security) – due to the unlawful nature of the detention; Article 8 (right to respect for private and family life) and Article 13 (right to effective remedy) read together with Articles 3, 5 and 8. The Court also found in respect of Ms Ghali, Mr Nasr’s wife, violations of Article 3 (because she had suffered significant non-pecuniary damage as a result of her husband’s sudden disappearance), Article 8 and Article 13.
Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn box 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. Links compiled by Adam Wagner, post by Daniel Isenberg.
Not our own proposed “Snooper’s Charter” getting the civil liberties groups excited this week, but the all-sensing eyes and ears of the American government. Meanwhile, Europe publishes a useful handbook on asylum and immigration issues; whilst the Strasbourg Court cuts down its growing backlog of cases.
This blog has covered a number of claims for damages arising out of the misuse of private information. The Mirror Group phone hacking case is one example (see my post here and the appeal decision here), and the fall-out from the hapless Home Office official who put private information about asylum-seekers on the Internet, being another – (Gideon Barth’s post on TLT here). See also below for related posts.
But this post is to give a bit of context, via the wider and scarier cyber crime which is going on all around us. It threatens the livelihoods of individuals and businesses the globe over – and has given and will undoubtedly give rise to complex spin-off litigation.
So let’s just start with the other week. On 21 October 2016, it seems nearly half the Internet was hit by a massive DDoS attack affecting a company, Dyn, which provides internet services infrastructure for a host of websites. Twitter, Reddit, Netflix, WIRED, Spotify and the New York Times were affected. DDoS, for cyber virgins, is Distributed Denial of Service, i.e. an overloading of servers via a flood of malicious requests, in this case from tens of millions of IP addresses. No firm culprits so far, but a botnet called Mirai seems to be in the frame. It is thought that non-secure items like cars, fridges and cameras connected to the Internet (the Internet of Things) may be the conscripted foot soldiers in such attacks.
And now to the sorts of cases which have hit the headlines in this country to date.
RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J – judgment here
In my March 2017 post here, I explained that amendments to the costs rules for public law environmental claims threatened to undo much of the certainty that those rules had achieved since 2013. Between 2013 and February 2017, if you, an individual, had an environmental judicial review, then you could pretty much guarantee that your liability to the other side’s costs would be capped at £5,000 (£10,000 for companies) if you lost, and your recovery of your own costs would be limited to £35,000 if you won. In this way, the rules sought to avoid the cost of such claims becoming prohibitively expensive and thus in breach of Art.9(4) of the Aarhus Convention.
The most worrying element in the February 2017 amendments was a new CPR 45.44 giving the courts a broad discretion to vary those amounts, apparently at any time. This seemed like an open invitation to the defendants to try to do this, aided by the financial information which claimants are now obliged to provide. It was truly regressive, taking us back to the days when you spent many thousands of pounds arguing about a protective costs order which was intended to save money.
In my March post, I explained that the new rules were being challenged by NGOs, and Friday’s judgment is the upshot of this challenge.
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
In an exhaustive and detailed judgment coming to over 200 pages, the ECtHR held that both the bulk electronic communications interception regime operated by the UK’s intelligence agencies under the Regulation of Investigatory Powers Act 2000 and its provisions for acquiring communications data from telecommunications operators violated Articles 8 and 10 of ECHR.
However, the ECtHR held that there was no violation of Article 8 through the UK’s receipt and use of similar information obtained from other countries.
The ECtHR’s judgment is as noteworthy for what it deemed to be incompatible with the ECHR as what it deemed to be incompatible. In contrast to the tenor of many of the headlines in the media about the judgment, it was not an unreserved endorsement of the criticisms that have been levelled at the intelligence services in light of the Snowden revelations. The ECtHR’s comments as to the proportionality and necessity of the bulk collection of electronic communications, as well as about the adequacy of the safeguards and oversight structures will be of some consolation to the government.
The real issue for the Government is whether the ‘checks and balances’ in the Investigatory Powers Act (which is not yet fully in force) will be sufficient to defeat the criticisms made by the ECtHR of the previous regime under RIPA; in particular over the selection criteria for material that would be seen by human eyes and whether there are sufficient ‘journalistic’ safeguards.
The European Court of Human Rights has upheld the Belgian ban on Islamic burqas and other full-face veils by ruling that it does not violate human rights.
In doing so the Court has held by its position in S.A.S v. France (2014), where it ruled that a similar ban in France was lawful. In these latest cases the Court was asked to rule on the lawfulness of such bans in Belgium, where the applicants argued it was in violation of Articles 8 (right to respect for private and family life) and 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.
This case concerned the compatibility of a Belgian law introduced on 1st June 2011 which banned the wearing in public places of clothing which partially or totally covers the face. The applicants, Samia Belcacemi and Yamina Oussar both claimed that they had chosen to wear the niqab (a veil which totally covers the face except for the eyes) because of their religious beliefs, and that the restriction on doing so had violated their human rights. Ms Oussar in particular argued that since she has decided to stay at home and wear the veil there has been a restriction on her private and social life. Continue reading →
The opening of the Strasbourg Court’s judicial year every January always provides an opportunity for reflection on the themes and challenges which will define the Court’s jurisprudence for the coming year. This year, the theme of the seminar held at the Court to mark that opening was “International and national courts confronting large-scale violations of human rights””. I should like to offer eight predictions as to the other themes which will define the work of the Strasbourg Court this year. Given the Court’s pending caseload is still over 64,000 cases, these predictions are necessarily impressionistic. It will be for readers to judge whether, by this time next year, they have proven accurate.
(1) Security
The Court will continue to grapple with the security situation in Eastern Europe. Foremost on its docket are the inter-state cases involving Russia and Ukraine, but the Grand Chamber will also return to the issue of jurisdiction in Transdniestria in Mozer v. Moldova and Russia, in which it held a hearing on 4 February 2015.
Söderman v. Sweden – (application no. 5786/08) – Read judgment
The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana. A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.
On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).
The European Court of Human Rights has ruled that the UK’s controversial no-win-no-fee costs system violated the Daily Mirror’s freedom of expression rights after it was forced to pay model Naomi Campbell’s legal fees after a 2004 House of Lords judgment.
The European Court attacked the present costs system, and in particular success fees, using the findings of the recent review by Lord Justice Jackson, which the government intends to mostly implement. It held that the costs system often amounted to the “blackmail” of defendants, and has had an unjustified chilling effect on the press.
The EU’s highest court this week held that employers are entitled to ban religious symbols in the workplace, including the Islamic headscarf.
What were the references about?
Two Muslim women, Ms Achbita (Case C‑157/15) and Ms Bougnaoui (Case C‑188/15), claimed to have been victims of discrimination after they were dismissed for refusing to comply with their employers’ stipulations that they not wear the Islamic headscarf.
Welcome back to the UK Human Rights Roundup, your regular tasting menu 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.
With an upcoming anniversary, the role of the Lord Chancellor (and, of course, his reforms) has been under scrutiny. Further, the new Defamation Act is looked at in more detail, civil liberties are abused and war crimes resurface in a number of ways. And, the gay marriage bill continues on its tumultuous journey to the House of Lords.
Food production is becoming a chosen territory for some of the fiercest current battles about freedom of information in this country. In 2009 the Channel 4 broadcast of a film about the pork factory business was effectively shut down by the threat of libel action; in the last week the Guardian reported that libel lawyers Carter and Ruck have written to the Soil Association threatening legal action if they failed to withdraw allegations underlying their objection to a planning application for one of the country’s largest pig units.
Update (15 January 2011): Nocton Dairies Ltd has withdrawn its planning application for a 3,700-cow mega-dairy in Lincolnshire.
Pig production company Midland Pig Producers (MPP) is seeking planning approval for 30 acres of land in Foston, Derbyshire, to develop a pig unit containing 2,500 sows and up to 25,000 pigs. The Soil Association formally objected to the plans because of the ‘increased disease risk and poor welfare conditions” of intensive units.
The application to South Derbyshire district council was in fact withdrawn after it was ruled that it needed to go to the county council instead. This is because the proposed inclusion of an anaerobic digestion unit on the site brings in waste matters which concerns the jurisdiction of the county council rather than the district planners. MPP expects to reapply in the next few weeks. Continue reading →
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On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “
Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn box of human rights news. The full list of links can be found 
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
Söderman v. Sweden – (application no. 5786/08) – 
Welcome back to the UK Human Rights Roundup, your regular tasting menu of human rights news. The full list of links can be found 
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