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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/53/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
2012 has been a busy year on the UK human rights front, never short of controversy, hyperbole and even some interesting points of legal principle along the way.
The Human Rights Act 1998, twelve years young, has been under fairly constant attack from politicians and newspapers. Meanwhile, the HRA has been operating pretty well in the courts, with judges producing a steady stream of interesting home-grown human rights judgments. The European Court of Human Rights has produced some fascinating and controversial judgments, and has also, thanks to the UK’s presidency, signed up to some significant reforms.
Here are a few highlights from January to March – hopefully I will have time to complete the rest of the year!
Migrant workers have been essential to the operations of the NHS ever since its inception in 1948. Over the decades, many programmes have been used to encourage and find overseas workers and help them migrate to the UK to be employed in the healthcare system, demonstrating our governments acknowledgment of how important they are. As early as 1949, campaigns were made by the UK government in the Caribbean to recruit NHS staff, through advertisements in local newspapers.
However, throughout the current COVID-19 pandemic, many have argued that migrant workers have not been given the rightful respect or recognition in which they truly deserve. Many of them have been putting their lives on the line every single day fighting against a deadly virus, yet still face immigration insecurity.
There are currently 170,000 overseas NHS workers from 200 countries residing within the UK, many of which have to apply every year for five years to renew their work visas. Some are required to have employers provide certificates of sponsorship for them, and if they do not, then they can be deported at any time despite their critical service to the country. These certificates are necessary for those applying for skilled worker visas, to prove that the conditions of the visa have been met. If they are not signed it becomes increasingly difficult for migrants to apply for the visa needed to remain in the UK. As the pandemic has raged on since March 2020, support for a Private Member’s Bill which would grant migrant NHS workers indefinite leave to remain has grown.
The Colston Four have been acquitted of criminal damage by a jury for their role in pulling down the statue of Edward Colston in Bristol and pushing it into Bristol Harbour during a Black Lives Matter protest in June 2020. Under the Criminal Damage Act 1971, a defendant will have a defence to criminal damage if they can prove they had a ‘lawful excuse’ for their actions. In this case, the four defendants put forward three lawful excuses. First, they argued that they had been acting to prevent the crime of public indecency which was being committed in the retention of the statue after 30 years of petitions to remove it, given the serious offence and distress it caused. Relatedly, they contended that Bristol County Council had committed misconduct in failing to take it down, but this was withdrawn from the jury by HHJ Peter Blair QC as there was insufficient evidence. Second, they argued that they genuinely believed the statue was the property of Bristol citizens, and that those citizens would consent to the statue being pulled down. Finally, they contended that a conviction would be a disproportionate interference with their rights under Articles 10 and 11 of the European Convention on Human Rights (to freedom of expression and assembly). The verdict has been criticised by some as a politically motivated decision which has no proper basis in law, and a petition to retry the protesters has received over 13,000 signatures. Supporters of the Colston four maintain on the other hand that their excuses have a real foundation in the law, and that therefore it had been open to the jury to find the defendants not guilty.
The approach of juries in protest cases has come under further scrutiny in light of the new proposal in the Police Crime, Sentencing, and Courts Bill to increase the maximum sentence for the damage of memorials to 10 years imprisonment, irrespective of the cost of the damage. The increase in sentence means that all cases would necessarily be tried by a jury, which some legal commentators have suggested makes it more likely that perpetrators will go free.
London has just experienced its largest ever celebration of Pride – arranged for the weekend after the 50th anniversary of the Stonewall Riots so as to allow thousands of British people to fly out to New York to participate in the official commemoration. This is a striking example of the influence of a particularly American method of effecting social change adopted with much success in the UK – albeit there has not been much by way of rioting here.
It is probably a myth that the Stonewall riots were fuelled by mourners drinking to relieve their grief after Judy Garland’s death in London and funeral in New York City – but possibly the closest the UK came to watching similar scenes was 25 years later and was connected to the death of the artist and Outrage supporter, Derek Jarman. Peter Tatchell arranged a candlelit vigil outside the Houses of Parliament on 21st February 1994 to mark the death of the great film maker. The other purpose of this gathering was to enable a demonstration to take place right outside the Palace of Westminster just as the Commons were voting on establishing an equal age of consent. When Parliament voted for a compromise of 18 years of age, the 5,000 or so demonstrators invaded the grounds of the Palace and Police and Commons staff struggled to close the great doors of Parliament to keep them out.
Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?
Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.
If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.
A historic deal has been agreed at the United Nation’s Cop27 summit which will provide funding to vulnerable countries to cope with the impact of climate change. The final cover document did not include commitments to reduce the use of fossil fuels. The deal also used new ambiguous language about “low emissions energy” which experts suggest could refer to fossil fuels including gas.
There has been an investigation following the appearance of sexual abuse victims’ personal details on the Suffolk Police website. Police and crime commissioner Tim Passmore issued an “unreserved apology” for the breach. The published information included victims’ names, addresses, dates of birth and details of the offences committed against them.
On Monday 14 November, the United Nations Human Rights Council released a report which including 302 recommendations demanding that the UK must tackle rising poverty. The report follows new figures revealing that four million children in households on universal credit face big cuts in income if benefits are not increased in line with inflation. Oxfam and the Healthcare Trade Unison, amongst other organisations, have said the UK is “failing to meet its international legal obligations”.
In other news:
The Refugee Council called on ministers to introduce a range of measures to deal with the record delays in processing asylum claims. Currently, government spending is at around £6.8million for housing migrants in hotels. It has also been revealed that at least forty child asylum seekers were placed in a Home Office hotel designated for adults; last month, one child was the victim of a serious stabbing.
The Advertising Standards Authority (ASA) has revised its guidance on age-restricted ads online. The new guidelines provide greater protection to children and young people by introducing content, media placement and audience targeting restrictions. The Committee of Advertising Practice (CAP) provided a principles-based checklists to help limit the exposure of young people and children to age-restricted ads. Advertisers have ultimate responsibility for ensuring compliance with the rules.
Analysts at the Internet Watch Foundation (IWF) revealed they found nearly nine-hundred instances of Category A child sexual abuse material in just five days. The research revealed children as young as seven are being coerced by abusers into filming themselves carrying out the most severe forms of child sexual abuse material. The data publication has been used to highlight the need for the delayed Online Safety Bill.
In the courts
In X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, the Court of Protection dismissed an application by X’s parents, V and W, for a declaration that it would be lawful for a doctor to retrieve X’s gametes to be stored both before and after his death, and an order that V may sign the relevant consents in accordance with the provisions of sub-paragraph 1(2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). Schedule 3 of the 1990 Act deals with the use or storage of gametes, as does Section 4(1) of the 1990 Act; both stress the importance of consent in order that this activity be effectively regulated. X was potentially to be assessed as brain dead within 24 hours of the hearing. Citing Parrillo v. Italy (Application no. 46470/11) the Court held that the ability to give consent in regards to gametes or embryos constitutes a facet of private life. The Court relied upon K v LBX and others[2012] EWCA Civ 79 in establishing that for an interference with X’s Article 8 rights to be lawful, it must be necessary and proportionate to achieve a legitimate aim. Having considered all the circumstances, and applying section 4 of the Mental Capacity Act 2005, the Court held that it would not be in X’s best interests to make the declarations sought. The Court was not persuaded that the significant interference with X’s Article 8 rights would be necessary or proportionate.
On 18 November, judgement was handed down in AG (A Child), Re [2022] EWCA Civ 1505. The Court dismissed an appeal against the decision of the Divisional Court to refuse to make a declaration of incompatibility between certain provisions of the Diplomatic Privileges Act 1964 (DPA) and the Vienna Convention on Diplomatic Relations 1961 (VCDR) with Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The key issue in the appeal was whether the Divisional Court was right to decide that neither Article 3 nor ECtHR jurisprudence required the UK to breach the VCDR. The Appellant, AG, and her 5 siblings were subjected to abuse by both their parents. Their father was an accredited diplomat at the time and thus had immunity from the criminal, civil and administrative jurisdiction of the receiving state under DPA and the VCDR. Barnet, the London Borough where the family lived, tried to intervene on the children’s behalf, and supported AG in the appeal. The Appellant contended, referencing Z v United Kingdom (Application no. 29392/95), that Article 3 includes a systems duty on the state to take effective measures to prevent private acts of torture, inhuman or degrading treatment or punishment. The Court were unpersuaded by this. Relying upon Lord Reed’s judgement in R (AB) v Secretary of State for Justice[2022] AC 487, the Court held that they could not be confident that the ECtHR would regard the systems duty in Article 3 as overriding the long-established international law principles enshrined in the VCDR and it was not open to the court to declare Article 3 and the VCDR incompatible.
A woman living with Autistic Spectrum Disorder (“ASD”), absence epilepsy and learning difficulties succeeded in a claim for judicial review against the London Borough of Croydon after a deputy High Court judge ruled that the council had failed to meet her needs contrary to the requirements of the Care Act 2014. The claim in P, R (On the Application Of) v London Borough of Croydon[2022] EWHC 2886 (Admin) contended that the council’s decision to fund 35 hours per week of support was unlawful as it failed to meet her needs, and succeeded on three of four grounds.In relation to Ground 1, the Judge observed that it was arguably unlawful for the Defendant to have set a level of required care in an assessment, and then to have provided a Care and Support Plan making assumptions that the required care could be provided by her parents. Grounds 3 and 4 both concerned a failure to comply with The Care and Support Statutory Guidance. The Court held, referring to the standard of proof established in R (Cava Bien Ltd) v Milton Keynes Council[2021] EWHC 3003, that the Defendant’s apparent failure to asses the level of care which could and would be provided by the Claimant’s parents did make a substantial difference to the outcome of the Claimant’s care assessment. The Court ordered the quashing order of the Defendant’s February 2022 decision to provide or fund 35 hours of support per week, and the Defendant’s Care and Support Plan dated 14 February 2022. With reference to R (CP) v North East Lincolnshire Council[2019] EWCA Civ 1614, the Court maintained that it was not unconcerned with “historic” breaches and the Claimant was entitled to declaratory relief on this aspect of Ground 1.
R (o.t.a Friends of the Earth et al) v. Heathrow Airport Ltd [2020] UKSC 52 – read judgment
In February 2020, the Court of Appeal decided that the Government policy on airport expansion at Heathrow was unlawful on climate change grounds. The Supreme Court has now reversed this decision.
The policy decision under challenge was an Airports National Policy Statement (ANPS). An NPS sets the fundamental framework within which further planning decisions will be taken. So, in traditional terms, it is not a planning permission; that would come later, via, in this case, the mechanism of a Development Consent Order (DCO), which examines the precise scheme that is proposed. The ANPS (like any NPS) narrows the debate at the DCO stage. Objectors cannot say, for example, that the increase in capacity could better be achieved at Gatwick. Government policy has already decided it shouldn’t be.
The ANPS was made in 2018 by the Secretary of State for Transport (Chris Grayling), after many years of commissions and debates about airport expansion.
The other major policy player in this litigation was the Paris Agreement on Climate Change. This was concluded in December 2015, and was ratified by the UK on 17 November 2016. The Paris Agreement commits parties to restrict temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.
The UK’s domestic climate change legislation derives from the Climate Change Act 2008. The Planning Act 2008 (setting out the NPS system) required government in a given NPS (a) to explain how it takes account of its policy on climate change (s.5(8)) and (b) to exercise its NPS functions with regard to the desirability of mitigating and adapting to climate change (s.10).
The challenges debated in the Supreme Court revolved around (1) these two sections of the PA 2008, (2) a debate about the impact of the Strategic Environmental Assessment Directive (2011/92/EU), and (3) claims that the SoS has failed to take into account long-term (post-2050) and non-CO2 emissions.
One curious element of this appeal is that it was Hamlet without the Prince. After seeking to defend the case in the CA, the SoS did not appear in the SC, where Heathrow did all the running. Whether this non-appearance by the SoS was anything to do with the Honourable Member for Hillingdon’s undertaking (Boris Johnson MP) some years ago to lie in front of the bulldozers before the third runway was laid is of course unknowable. But as we shall see, this did not stop Heathrow’s arguments winning the day. So, possibly, central government’s policy objective achieved without political risk.
This is, to say the least, a rather unfortunate saga. The Claimant, Mr Serafin, brought a defamation claim against a Polish newspaper run by the Defendants. An article had alleged various things including that he was financially untrustworthy and was dishonest in his dealings with women. At trial before Jay J, he represented himself. He was comprehensively disbelieved by the judge. His claim was dismissed, in most cases because the judge found that the article was accurate, but in some instances because the defendants had a public interest defence under s. 4 Defamation Act 2013.
The Supreme Court, via a single judgment from Lord Wilson, thought that the judge’s judgment was “remarkable”, “intricately constructed and beautifully written”. So what, if anything, had gone wrong, and why did the SC order a retrial?
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC
The relevance of unincorporated international law (John Larkin QC):
Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:
International law is determinative if it is incorporated.
It ‘may have a bearing’ on the common law.
It may be relevant to the application of Human Rights, via the Human Rights Act 1998.
The HRA 1998:
The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors[2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller[2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.
However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.
In two related judgments, Lieven J considered an application made by a Hospital Trust to withdraw treatment from a child receiving mechanical ventilation to keep him alive and an application for anonymity on behalf of his treating clinicians. The Trust succeeded in both.The decision has been upheld by the Court of Appeal.
The application to withdraw treatment was opposed by the parents. As always in such cases the circumstances were tragic and emotions ran high, which provides some context to the anonymity application.
In the UK and EU, there are a lot of statutes and rules about climate change, and relatively little strategic litigation. Hop over the Pond, and we see exactly the reverse, a reflection of different political dynamics with the hostility of the US Congress to climate change legislation.
It is interesting to look at some of the US cases, not only because they lock horns with one of the big issues of our time, but also because they reflect a common problem the courts face in deciding their role when confronted with science which is, or is said to be, controversial.
We should start with the groundbreaking decision in Massachusetts v. EPA (549 U.S. 497 (2007)). The US Supreme Court held that the US Environmental Protection Agency had a duty to use its existing powers under the Clean Air Act and assess whether greenhouse gas (GHG) emissions from vehicles were a danger to the environment and, if that was the case, to regulate them. In the litigation, and contrary to the opinion of two of its previous general counsels, it had denied that it was under a duty to do so. This judgment was a highly important ruling, as it meant that no new legislation was necessary to get the climate change ball rolling. Thereafter the EPA turned to how it should regulate GHG emissions, as we shall see.
Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder. Many cases have already been sentenced either in the Magistrates’ Court. A lesser number of cases have been dealt with by the Crown Court. (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).
In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts). The use of “lay benches” has been very much the exception. The reason for that is not entirely clear at this time.
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Laura Profumo peruses the latest human rights happenings.
In the News:
Lord Janner died on Saturday, aged 87, after a long battle with dementia. The former labour peer was due to face a “trial of the facts” in April, after being accused of a string of child sex abuse offences. The special hearing, for suspects unfit to defend themselves in a normal criminal trial, takes place before a jury, yet there is no formal verdict, nor sentencing procedure. It is speculated that, if the trial had continued when Janner was alive, he would have been given a discharge, if not altogether acquitted. It now looks unlikely that the trial will proceed. “I can’t think of any way in which the Crown Prosecution Service could even reinstate the case. It dies with the unfit defendant”, writes academic Ronnie Mackay. It’s a dim prognosis for Janner’s alleged victims, who still hope to have their day in court, after many abortive attempts to bring their claims against Janner before he fell ill. Their hopes are now confined to the forthcoming civil proceedings against Janner’s estate, and the Goddard inquiry. Yet former DPP, Ken Macdonald, has held that the decision whether to proceed with the trial is “quite finely balanced” and, despite his personal preference, there stands a credible case for it taking place. As there’s no question of a penal sanction in a trial of the facts, the presence of the defendant is not strictly required. In light of this, Lord Macdonald has suggested “the argument for continuing is that [Janner] was not going to play any part in these proceedings in any event”. Continue reading →
Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)?
This was the question asked of the Supreme Court by a prisoner serving an indeterminate sentence at HMP Wymott. As Lady Hale noted in the judgment: this issue affects all premises occupied by the Crown, including central government departments, and that it is important to determine whether the ban can be properly enforced in these places.
The answer the court gave is ‘no’, as this provision does not bind the Crown, of which HMP Wymott is an institution.
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2012 has been a busy year on the UK human rights front, never short of controversy, hyperbole and even some interesting points of legal principle along the way.
Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder. Many cases have already been sentenced either in the Magistrates’ Court. A lesser number of cases have been dealt with by the Crown Court. (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).
Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)? 
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