The Round-Up: Human Rights and the Trade Union Bill

18 January 2016 by Charlotte Bellamy

Charlotte Bellamy contemplates the latest human rights happenings  

Until recently the Tolpuddle Martyrs peered down from a banner in Westminster Hall in an exhibition celebrating the journey of rights in democratic society over the last 800 years.

The Tolpuddle Martyrs were taken down last month. Meanwhile, the Trade Union Bill has passed through its second reading in the House of Lords. Just before the reading, the Equality and Human Rights Commission released a report on the human rights implications for the Bill, the thrust of which is that its ‘regressive nature’ may cause the UK to fall short of its obligations under the European Convention of Human Rights.
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The Round Up: Fast-track Failings and Obergefell ‘egoism’

6 July 2015 by Laura Profumo

Photo credit: Guardian

Laura Profumo brings you the latest human rights happenings.

In the News:

In a critical, though arguably overdue, decision, the Court of Appeal has suspended the fast-track immigration appeals system. The process, under which rejected asylum seekers are detained and given only seven days to appeal, was held “structurally unfair” by the High Court, before being halted altogether by last week’s appeal. The ruling was welcomed by the appellant charity, Detention Action, as meaning “asylum seekers can no longer be detained…simply for claiming asylum”. Previously, the fast-track deadlines could be imposed on any asylum seeker from any country, if the Home Office considered their case could be decided quickly. This marks the third time courts have found the system to be unlawful, yet the suspension will now stay in force until a government appeal is mounted. The decision deals a major blow to a system which is “inefficient, bureaucratic, demeaning and dehumanising”, writes immigration expert Colin Yeo. Whilst there is “no doubt” a replacement fast track will soon be found, in the meantime “let us savour the respite” from such crude expediency.

In other news, the spotlight remains on America, in the euphoric wake of the Supreme Court’s ruling in Obergefell v Hodges. The final paragraph of Justice Kennedy’s judgment, in its stirring clarity, is set to make legal history. Yet not everyone is “enveloped in a warm and fuzzy feeling”, writes UKHRB’s own Jim Duffy. Justice Scalia, the firebrand conservative, “pulled no punches” in his dissent, citing the majority opinion as “egotistic” and a “threat to American democracy”. Scalia’s arrival in London last week further stoked the Obergefell debate. Speaking at a Federalist Society event, Scalia held his colleagues had wrongly used the due process clause to distill a substantive, rather than procedural, right. Defending his position as a constitutional originalist, Scalia maintained the meaning of the Constitution as fixed, rather than the “wonderfully seductive judicial theory” of living constitutions, in which “we can have all sorts of new things, like same sex marriage”. When asked about the proposed Bill of Rights, the Justice’s response was particularly biting: “You can’t do any worse than the situation you’re in now”.
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Legal advice privilege should not extend to accountant’s advice, says Supreme Court

24 January 2013 by Rosalind English

Prudential plc and another , R (on the application of) v Special Commissioner for Income Tax and another [2013] UKSC 1 23 January 2013 – read judgment

The Supreme Court has ruled that legal advice privilege should only apply to advice given by a member of the legal profession; that this is what the common law has always meant, and that any wider interpretation would lead to uncertainty. Two strong dissents do not find any principled underpinning for the restriction of the privilege to advice from solicitors or barristers.

The following summary is based on the Supreme Court’s press release (numbers in square brackets denote paragraphs in the judgment).

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Supreme Court – Measures against Iranian bank unlawful, and the secret hearing ruling

19 June 2013 by David Hart KC

Bank Mellat v HM Treasury [2013] UKSC 38 (CMP: see judgment) and 39 (main: see judgment)

Two sets of judgments today from a 9-judge Supreme Court in the Bank Mellat case. The first explains why the Court adopted a secret procedure in the absence of the Bank (i.e. a Closed Material Procedure) but added that the whole palaver in fact added nothing to their knowledge. The second concludes that financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market were arbitrary and irrational and were also procedurally unfair. 

Catholic midwives must continue indirect role in abortions, despite human rights protections

6 March 2012 by Andrew Tickell

Brought to you by Andrew Tickell

Mary Teresa Doogan & Concepta Wood [2012] CSOH 32 – Read judgment

“For the want of a nail, the shoe was lost, for the want of a shoe the horse was lost, for the want of a horse, the rider was lost, for the want of a rider, the message was lost, for the want of the message, the battle was lost, for the want of the battle, the kingdom was lost, and all for the want of a horse shoe nail”.

A proverbial lesson in causation, and one pressed into service by Lady Smith in the Court of Session in Scotland last week, in a judgment rejecting the judicial review petition of two Catholic midwives employed at a major Glasgow hospital.

Seeking review of Greater Glasgow and Clyde Health Board’s rejection of their grievances, the pair contended that the conscientious objection provisions of the Abortion Act 1967 – which provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection” – was not limited to ‘direct’ participation in abortions, but entitled them to refuse to delegate to, supervise or support staff on their labour ward who were directly involved in medical terminations. Horse shoe nail.

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Do Not Resuscitate notices: Patients’ rights under Article 8

17 June 2014 by Rosalind English

R (on the application of David Tracey, personally and on behalf of the estate of Janet Tracey (deceased)) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening (17 June 2014) [2014] EWCA Civ 822 – read judgment

Philip Havers QC, Jeremy Hyam and Kate Beattie of 1 Crown Office Row represented the appellant in this hearing. They have nothing to do with the writing of this post.

The Court of Appeal has declared that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and in breach of her right to have her physical integrity and autonomy protected under Article 8.

The Resuscitation Council, intervening, made the point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR . Their concern was that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.

Background Facts

The wife of the appellant, Mrs Tracey, had been diagnosed with lung cancer in February 2011 and given nine months to live. Two weeks after this diagnosis she sustained a serious cervical fracture in a major road accident and was placed on a ventilator in a critical condition. When the medical team reviewed her treatment, a first Do Not Attempt Cardiopulmonary Resuscitation Notice was placed in her notes. However, she was subsequently successfully weaned from the ventilator and her condition appeared to improve. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March.
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Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

22 January 2014 by Rosalind English

Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.
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Dismissal of hospital consultant did not breach fair trial rights

3 August 2011 by Richard Mumford

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB)- Read judgment

The High Court has dismissed Dr Raj Mattu’s claim that his dismissal by an NHS Trust was in breach of contract and in breach of his Article 6 right to a hearing before an independent and impartial tribunal. This is one of the first judgments on the applicability of Article 6 to disciplinary and dismissal proceedings since the decision of the Supreme Court in R (G) v X School Governors [2011] UKSC 30 (read our post).

Dr Mattu was employed by the Trust as a consultant in non-invasive cardiology and general medicine in 1998. In 2002 he was suspended on disciplinary grounds; however, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. Further, Dr Mattu was on sick leave for at least a year from September 2006.

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A tinge of green in our Bill of Rights?

17 August 2012 by David Hart KC

Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.

I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.

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An ABC on proportionality – with Bank Mellat as our primer

22 June 2013 by David Hart KC

Bank Mellat v HM Treasury [2013] UKSC 39 (see judgment)

My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” [20]) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.

So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.

The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at [68] – [76] distils the main elements.

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Should asylum seekers take action to avoid persecution on the ground of political opinion incorrectly attributed to them?

22 July 2016 by Lois Williams

Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment

The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion.  Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.

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Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?

30 November 2016 by Guest Contributor

Re: W (A child) [2016] EWCA Civ 1140 – read judgment

Summary

A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.

Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.

The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.

The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.

The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.

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Article 5

1 June 2010 by Adam Wagner

Article 5 | Right to liberty and security of the person

Read posts on this Article

Art.5 of the European Convention on Human Rights provides as follows:

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The corresponding provision in the EU charter, Article 6, is much shorter:

Everyone has the right to liberty and security of the person.

The explanatory notes on the Charter state that the rights in Article 6 have the same meaning and scope as Article 5 ECHR. The limitations which may be imposed on them may not exceed those permitted by the ECHR.  The liberty of the subject is within the competence of the EU institutions and engages EU law ever since immigration and aspects of criminal justice have come within the jurisdiction of the European Court of Justice. Furthermore, member states may also arrest and detain persons pursuant to EU law, most often in the fields of immigration and asylum and cross-border cooperation in criminal proceedings. Any domestic proceedings under the European Arrest Warrant will necessarily engage the Charter and its rights.

The right to liberty cannot be absolute and although most of this Article is dedicated to a list of conditions under which a person’s liberty can lawfully be curtailed, each of these permissible forms of detention depends for its legitimacy on the availability of review. In other words, there must be periodic scrutiny of the legality of the detention by an independent court or tribunal. It is important to note that this list is exhaustive, i.e. there are no other permissible derogations to the right to liberty of the person.

The first part of Art.5 governs all situations where people are deprived of their physical liberty; this can extend from detention for less that two hours for the purpose of deportation (X & Y v Sweden Application No.00007376/76) to the holding of a patient in an open ward of a mental hospital (Ashingdane v United Kingdom (1985) 7 EHRR 528), as well as the more obvious situations involving arrest for criminal offences. As far as detention of people of “unsound mind” is concerned (Article 5(1) (e)), proof of an established mental disorder is not required at the initial taking into detention. For an initial period of assessment, it may be enough that there is some medical evidence, and genuine concern that the person is of risk to themselves or others (SR v Netherlands, Application no. 13837/07) 28 December 2012).  Detention for unsound mind will only be lawful under Article 5(1)(e) if effected in a hospital, clinic or other appropriate institution (Aerts v Belgium, 1998 29 EHRR 58).

Those parts of Article 5(1)(d) – (f) that deal with types of administration detention that do not follow a court order, makes it all the more important that the individual has a right to examine the legality of that detention under Article 5(4). Note however that the Strasbourg Court has held that Article 5(1)(f) is distinct from the other forms of detention permitted under (a) – (e) in that detention may not be “necessary” or “proportionate” to secure the deportation or extradition of someone detained in a signatory state, nor to prevent their illegal entry (Chahal v United Kingdom (1997)). The Court needs to retain its legitimacy in the eyes of signatory states by respecting their sovereign right to control their borders and refuse aliens the same general rights to liberty enjoyed by their citizens (Saadi v United Kingdom 2008).

The reference to the “liberty and security of the person” means simply that the arrest must not be arbitrary; individuals should be “secure” from the unexplained and unlawful actions of the State: Bozano v France (1986) 9 EHRR 297.

The right to review of detention under Article 5(4) was held not to have been breached by the UK government in having so called “closed” procedures when information about a terrorist suspect is not available either to the individual concerned or their lawyers. The special advocate performed “an important role” in counterbalancing the lack of full disclosure and the lack of an open adversarial by putting arguments on behalf of the detainee in the closed hearings. Although in the same case (A v United Kingdom (2009) No. 3455/05) the Grand Chamber found, in respect of some of the applicants, that the closed procedure could not be fair when decisive evidence was contained in the closed material that they had no chance to challenge.

• Return to Incorporated Rights Index
• Introduction to Human Rights

Supreme Court dismisses protestors’ appeal over PKK flag conviction

3 February 2022 by Samuel March

Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here

On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.

BACKGROUND

S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.

The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.

Government successfully appeals in ‘Right to Rent’ case

22 April 2020 by Samuel March

R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, judgment here

On 21^st April 2020, the Court of Appeal allowed the Home Office’s appeal in the ‘right to rent’ case. The decision below was covered on this blog here.

Notably, the Court of Appeal agreed with the High Court’s view that the scheme does result in landlords discriminating against tenants without British passports on the basis of their actual or perceived nationality. However, the Court held that this discrimination was justified.