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Welcome back to the UK Human Rights Roundup, your regular spring harvest of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
In the human rights news this week, Theresa May answered calls for a public inquiry into undercover police officers after the publication of the independent review into spying on the family of Stephen Lawrence. Elsewhere, Mormons take on the taxman, the High Court considers how to interpret the law on storing embryos and gametes after death and a House of Lords Committee publishes a major report into the operation of the Mental Capacity Act.
Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.
Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated – I have been sent a much better English translation).
In Khan v. Meadows[2021] UKSC 21 the Supreme Court has revisited the principles to be applied in “wrongful birth” claims: claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment. However, the judgment has implications beyond the world of clinical negligence litigation. The Supreme Court has taken the opportunity to clarify the components or ingredients of the tort negligence more generally. In particular, the Court has affirmed the importance of the “scope of duty” principle: a principle which limits the recoverability of damages wherever it applies. In particular, it is not sufficient for a claimant to establish that – with competent advice – they would have made a different decision about their treatment or care. They must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care.
Members of the Criminal Bar Association have voted in favour of an indefinite strike, escalating the industrial action that the courts have witnessed since June. The decision follows failed negotiations with the Ministry of Justice, with Dominic Raab still having not met with the CBA and the government standing firm in its position. The MoJ have expressed their disapproval of the decision, labelling it ‘irresponsible’. The CBA, alternatively, have accused the government of overseeing a ‘recklessly underfunded’ criminal justice system. In response to the decision, Raab has proposed granting more solicitors rights of audience, allowing more to advocate in the Crown court. The strike is due to commence on 5 September, coinciding with the announcement of the new Conservative party leader.
Liz Truss has expressed that she will consider triggering Article 16 of the Northern Ireland Protocol if she were to be successful in her leadership campaign. Article 16 provides ‘safeguarding measures’ that entitle the UK or the EU to suspend any part of the agreement. It does not, however, dismantle the Protocol in its entirety. Rather, triggering the article would provide an alternative to other suggestions which propose primary legislation to deem it necessary that the Government not comply with its existing obligations under the agreement. Triggering the article would exhaust the legal options the UK has before following through on this threat to discard the agreement altogether. The news comes after the EU launched a series of legal challenges against the UK’s commitment to the Protocol.
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013 – read judgment
Sidney Chawatama of 1 Crown Office Row represented the husband of the patient in this case. He has nothing to do with the writing of this post.
The patient in this case was a 37 year old highly intelligent graduate who worked in IT. For the past 8 years she presented with symptoms which were diagnosed as those of bi-polar disorder. She had been detained under compulsory or similar powers at various times in Italy, in France and here in England.
These proceedings were issued in the Court of Protection because the mother concerned was “very strongly” requesting a termination and giving her consent to it. The issue related to her capacity. Section 1(2) of the Mental Capacity Act 2005 is very clear and provides as follows: “A person must be assumed to have capacity unless it is established that he lacks capacity.” Accordingly, unless it is established, on a balance of probability, that the mother does not have capacity to make the decision that she undoubtedly has made, her autonomy as an adult to request and consent to the proposed abortion procedure is preserved. Continue reading →
L.H. v Latvia [2014] ECHR 453 (29 April 2014) – read judgment
The release of confidential patient details to a state medical institution in the course of her negotiations with a hospital over a lawsuit was an unjustified interference with her right to respect for private life under Article 8.
Background
In 1997 the applicant gave birth at a state hospital in Cēsis. Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent.
In 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. Continue reading →
Gina Miller outside the Supreme Court earlier today (Credit: The Telegraph)
The verdict is in. The Supreme Court has unanimously held that Boris Johnson’s advice to the Queen to prorogue Parliament until October 14 was ‘unlawful, void and of no effect’, since it had the effect of frustrating Parliament. As such, the prorogation was itself void.
The full judgment and the summary judgment are available and can be downloaded from the Supreme Court website. Lady Hale’s summary judgement is also widely available to watch in full.
The Ministry of Justice is proposing to change the rules on who can apply for international arrest warrants for suspected war crimes. The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted.
The present system means that the threshold for an arrest for war crimes is low, and as such visiting ex-ministers can be arrested if only limited (or “flimsy” as the MoJ puts it) proof of the alleged crime is presented to a magistrate. The highest profile cases have been those involving ex-ministers from Israel, and in particular Tsipi Livni. As a result of the threat of arrest warrants, Israeli ex-ministers have largely stayed away from the UK.
As the MoJ statement says, war crimes under the Geneva Conventions Act 1957, and a small number of other grave offences, are subject to universal jurisdiction. This enables prosecution to take place here even though the offence was committed outside the United Kingdom, and irrespective of nationality.
SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment
This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.
This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law. Continue reading →
In his speech at yesterday’s Conservative Party conference, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. Last night, however, The Scotsman newspaper quoted a Scotland Office spokesman as saying that the change would not apply in Scotland. According to the article, the spokesman “confirmed that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot by removed [by Westminster].’” As reported, this statement is seriously misleading. However, it does highlight genuine difficulties that devolution creates for the implementation of plans to reform human rights law. Continue reading →
In its foreign policy, the UK Government is a keen advocate of national human rights institutions (NHRI’s). The Brighton Declaration, drafted by the UK, encourages Council of Europe States to consider ‘the establishment, if they have not already done so, of an independent National Human Rights Institution’. In June 2012 the UK signed a UN General Assembly resolution‘Reaffirming the important role that such national institutions play and will continue to play.’
Yet at the same time, Navi Pillay, UN High Commissioner for Human Rights wrote to Theresa May MP raising concerns about proposals to reform Britain’s own NHRI, the Equality and Human Rights Commission (EHRC):
While fully respecting your Government’s priority to improve EHRC’s financial and operative performance as a public body, I would like to call on your Government to review some of the proposals with a view to preserving EHRC’s independence and to ensuring its continued compliance with the (Paris) Principles.
Re B-S (Children) [2013] EWCA Civ 1146 – Read judgment
is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria)[2013] UKSC 33, [2013] 1 WLR 1911 (see comment by Rosalind English here)
It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.
The worsening of the Covid-19 pandemic seemed to relegate all other business to a position of relative insignificance this week. Undoubtedly the human, economic and social cost of the outbreak is already severe, with its impact increasingly felt across the globe. However, perhaps more than any other conceivable event, the progression of the disease casts a spotlight on numerous areas of legal controversy. It is hard to recall a post-war phenomenon which so frequently pits the rights and interests of individuals against those of broader society (more here). Indeed, the potential material for upcoming pupillage interview questions seems virtually inexhaustible, assuming that they too don’t fall victim to social distancing measures.
I will be posting a longer article on Covid-19 later today.
We posted earlier on the Court of Protection’s refusal to declare that doctors could lawfully discontinue and withhold all life-sustaining treatment from a patient in a minimally conscious state (MCS) – “just above” a vegetative state (VS), which itself is slightly higher than a coma – read judgment.
The message underlying this ruling is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will. The Mental Capacity Act is remorseless, and courts will no longer come to the aid of those of us optimistic enough to think “it will never happen”.
We do not tend to think specifically about ending up in state of total dependency on medical support and therefore there is very little likelihood of any significant section of the population making a formal advance decision in accordance with the Act. On the other hand, how many of us have said, as patient M said in this case, that if such a situation were to arise, we would want to “go quickly”? [para 230]
Such generalities however are to no effect. Despite the universal human instinct to live in denial of contingent disasters, the court refused to give due weight to M’s previously expressed wish not to live a life dependent on others, because those these statements were not “specifically directed” at the consequences of withdrawing artificial nutrition and hydration (ANH) when conscious. Baker J could not consider those statements as a clear indication some eight years on from the onset of her illness, of what M would now want to happen.
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Welcome back to the UK Human Rights Roundup, your regular spring harvest of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
In his 
Re B-S (Children) [2013] EWCA Civ 1146 – 
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