Search Results for: right to die
30 April 2020 by Guest Contributor
Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.
In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.
In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.
Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.
Introduction
With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.
These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough. As a matter of human rights law, however, they are lawful. The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.
Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful. The analysis is wrong, primarily because:
- It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
- In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
- The margin is particularly wide given the complex scientific evidence underlying the decision.
I address these three point in turn, below.
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22 March 2017 by Guest Contributor
In the almost three years since the Supreme Court delivered its reasons in Nicklinson (in which a majority refused to issue a declaration that the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (‘ECHR’)), similar questions of compatibility concerning analogous bans have been considered by courts in Canada, South Africa and New Zealand. Additionally, California and Colorado have introduced legislation permitting physician-assisted suicide (taking the total to six States in the US which permit physician-assisted suicide), France has introduced legislation enabling patients to request terminal sedation, and Germany’s Federal Administrative Court this month handed down judgment confirming that the right to self-determination encompasses a right of the ‘seriously and incurably ill’ to, in ‘exceptional circumstances’, access narcotics so as to suicide.
Given news of a new challenge by Noel Conway to the compatibility of s 2(1) of the Suicide Act with Article 8 (the application for permission to review was heard by the Divisional Court yesterday with judgment reserved), it is, then, a propitious time to re-examine a particularly dubious aspect of the majority’s reasoning in Nicklinson namely, its characterisation of the declaratory power, not least given the potential for such reasoning to deleteriously affect the new challenge.
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8 June 2010 by Rosalind English
Prime Minister David Cameron has been busy preparing the country for “painful” cuts to pensions, pay and benefits. In a recent Guardian Article, The changing face of human rights, Afua Hirsch comments with approval on the 2008 recommendation by the Joint Committee on Human Rights that a new UK bill of rights should include the rights to health, education, housing and an adequate standard of living. Rosalind English asks whether the time has indeed come for “economic” human rights.
Ms Hirsch cites a number of examples around the world where such “social and economic rights” have been used successfully to challenge government policy on the distribution of healthcare, housing and benefits. Why, then, she asks, is such an extension of our existing rights so strenuously resisted in this country?
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24 November 2013 by Matthew Flinn
Elosta v Commissioner of Police for the Metropolis [2013] EWHC 3397 – Read Judgment
The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.
The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.
This case dealt with a specific and rather technical variation on that theme.
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18 February 2016 by Guest Contributor
WF, Petitioner [2016] CSOH 27 – read judgment
The Outer House of the Court of Session has ruled that the right to privacy and medical confidentiality under Article 8 of the Convention entitles complainers to be heard and have legal representation before any orders are made for recovery of their medical records.
Factual circumstances and legal background
The petitioner, (‘WF’) was a complainer in domestic abuse proceedings against the accused. The accused sought to recover all medical, psychiatric and psychological records relating to WF from 2007 to 2014. WF sought legal aid to allow her to be represented at the hearing concerning the recovery of these documents, arguing that her rights under Article 8 of the Convention entitled her to participate. The application to the Scottish Legal Aid Board was refused as there was no provision in the relevant legislation or regulations for legal aid to be granted for such proceedings. A further application was then made to the Scottish Ministers, under s.4(2)(c) of the Legal Aid (Scotland) Act 1986, which allows legal aid to be granted in circumstances not covered by the rules. This application was also refused on the grounds that WF did not have the right to appear or be represented at the relevant hearing. The key issue which came before the Sheriff was therefore whether Article 8 gave the complainer the right to appear and be represented at the hearing concerning disclosure of her medical records.
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15 September 2011 by Matthew Flinn
Voyias v Information Commissioner and the London Borough of Camden EA/2011/0007 – Read Judgment
The First Tier Tribunal has overturned a decision of the Information Commissioner and ordered Camden Council to provide information about empty properties in the borough to a former member of the Advisory Service for Squatters.
When one thinks of the term “human rights”, the first example that springs to mind is likely to be the right to life, or the right not to be tortured or enslaved – fundamental guarantees that protect the basic dignity of our human condition. Yet human rights are also intended to serve the core goal of preserving and enhancing the strength and rigour of democratic and pluralistic societies, and so the European Convention of Human Rights (EHCR) also contains provisions guarding against discrimination, and protecting freedom of religion and expression.
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1 July 2013 by Rosalind English
Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen
This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.
All of these questions are new to the Court.
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27 November 2012 by Rosalind English
Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here
This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.
Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.
Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.
It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.
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29 April 2010 by Rosalind English
The European Convention
Below is a list of the Articles of the European Convention on Human Rights. You can click on the article itself for a description and analysis, or click the “posts” link after each article to see posts on the blog relating to that Article.
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21 November 2025 by Rosalind English
The Department of Education for Northern Ireland (in the matter of an application by JR87 and another for judicial review (Appellant) [2025] UKSC 40
This interesting decision shows the intersection between the right to education and the right to freedom of religion under the ECHR. These are fast evolving rights, particularly Article 9, whose “freedom” stipulation is becoming more important than the “religion” right. Article 9 is more and more often taken to cover the right not to cleave to any religion at all.
In this case the arguments were focussed on the right to education under Article 2 Protocol 1 of the Convention, taken together with Article 9. The main issue before the Supreme Court can be briefly stated. Did religious education and collective worship provided in a school in Northern Ireland breach the rights of a child, and the child’s parents, under Article 2 of the First Protocol (“A2P1”) to the European Convention on Human Rights (“ECHR”) read with Article 9 ECHR?
What is particularly interesting and unusual about this judgment is that it emerges from Northern Ireland with its own history of sectarianism and religious division. The very basis from which the case sprang goes back well over a hundred years; since Partition, the Church of Ireland, the Presbyterian Church in Ireland, and the Methodist Church in Ireland are under the control of what is now the Education Authority, and that is where we start our story, details of which can be found in the Supreme Court’s press summary.
Before we get going on this story, let’s highlight this sharp obvservation about the NI education system in paragraph 88 :
there is no commitment in the core syllabus to objectivity or to the development of critical thought. To teach pupils to accept a set of beliefs without critical analysis amounts to evangelism, proselytising, and indoctrination.
According to Strasbourg Jurisprudence, the State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded [see Kjedsen v Denmark (A/23) (1979–80) 1 EHRR711 at [53]].
In this instance, the Supreme Court did not make a separate and distinct finding of indoctrination. It was unnecessary to do so because conveying information and knowledge in a manner which is not objective, critical, and pluralistic manner amounts to indoctrination.
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29 May 2018 by Jonathan Metzer
On 24th May 2018 a new scheme to process citizenship applications for the Windrush generation was announced, after the Government’s apologies last month. The Windrush Scheme guidance explains how this will work in detail.
It is notable that applicants who are refused will have no right of appeal against this decision. The chair of the Home Affairs Select Committee, Yvette Cooper MP, has tweeted to express her concern about this.
This author suggests that it is arguable that the denial of a right of appeal is open to legal challenge.
How the scheme works
Citizens of Commonwealth countries who were living in the UK before 1 January 1973, plus their children and certain non-Commonwealth citizens will be assessed and issued with proof of British citizenship if they already are British in law, or will be considered for naturalisation if they are not. Those who do not qualify for British citizenship will be assessed to see if they have the right of abode and those who do not qualify for that will be considered for a permit confirming their right to be in the UK under the no time limit biometric residence permit scheme.
This is all explained in detail in this article on Free Movement.
But what about if the Home Office is not satisfied that an applicant meets the scheme?
The guidance states on p. 13 as follows:
Where a person is determined not to be issued with a document under the Windrush Scheme in accordance with this guidance, the decision will not attract a right of appeal or an administrative review.
So a person who is refused will not be able to appeal to the First-tier Tribunal. They will only be able to challenge the decision by way of judicial review.
The difference between an appeal and a judicial review
Why does this matter? The basic answer is that it is much harder for a claimant to succeed in a judicial review than in an appeal. In an appeal, the judge will make the decision afresh following oral and written evidence. Statistics in March showed that about half of all immigration appeals are successful.
In judicial review, on the other hand, the judge does not step into the shoes of the decision-maker and is tasked instead with evaluating whether the decision was lawful and rational. There is always the possibility that the judge will conclude that whilst the decision is tough, it is still legally watertight. In addition, an applicant must apply for permission before they can get a substantive hearing and an unsuccessful applicant usually pays the Secretary of State’s costs.
So, there is a fair amount riding on the issue of whether a claimant gets an appeal or not.
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23 February 2022 by Ruaridh Owens
On 7 December 2021, the European Court of Human Rights (the “Court”) published its judgment in Standard Verlagsgesellschaft MBH v Austria (No.3) regarding anonymity online. The Court found that the Austrian courts had violated the applicant’s right to freedom of expression by requiring the applicant to disclose the identities of those who had posted allegedly defamatory comments on its website. The Court’s judgment is a notable development of its case law regarding freedom of expression on the internet.
Legal and factual background
The applicant is the publisher of the Austrian Der Standard daily newspaper published in print, digitally and online. At the end of each online article, registered users can post comments anonymously. When registering, users are warned that the applicant may disclose their data if required to do so by law. Users also accept the applicant’s Community Guidelines stating that users are responsible for their comments and that personal attacks, threats, abuse, or defamatory statements are prohibited. All comments are screened by a keyword identification programme before they can be posted. The applicant also operates a “notice and take down” system via which users can trigger a manual editorial review of comments by using a “report” button.
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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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25 October 2011 by Rachit Buch
Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – Read judgment.
Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL) should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.
It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.
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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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