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The decision of the Court of Protection in Rotherham and Doncaster and South Humber NHS Foundation Trust and NR [2024] EWCOP 17 is the latest in a line of cases where the Court has been asked to determine whether a termination of pregnancy is in a woman’s best interests. Any case about a termination engages the pregnant woman’s Article 8 rights. But where the woman also lacks capacity to decide for herself whether to have a termination, there must be a particularly careful analysis to ensure that her rights are respected. While previous decisions have frequently accorded weight to the wishes and feelings of the pregnant woman at the heart of the case, Mr Justice Hayden’s decision goes further in handing the decision over to the pregnant woman herself.
I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.
Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).
The appeal in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 concerned injunctions obtained by over 38 different local authorities between 2015 and 2020 to prevent unauthorised encampments by Gypsies and Travellers. These “newcomer injunctions” as they are known, are a wholly new form of injunction, granted without prior notice, against persons unidentified at time of the grant of the injunction and who have not yet performed, or even threatened to perform the acts which the injunction prohibits. They therefore apply “to potentially anyone in the world” [143(i)].
Local authorities sought to use such injunctions, due to the inefficacy of obtaining an injunction against named Gypsies or Travellers who, by the time proceedings have commenced, have left, and been replaced by another group, against whom the injunction has no effect.
Two men are in a relationship and want to have a child. They approach a female friend who is happy to be their surrogate. She has previously had a voluntary sterilisation procedure, so she would need in-vitro fertilisation (IVF) using a donor egg (a procedure known as gestational surrogacy), to help her friends realise their wishes. This is where they all encounter a problem: voluntary sterilisation makes the woman ineligible for publicly funded IVF.
In JR176(2)’s application for judicial review [2022] NIKB 21, the two men challenged the eligibility criteria for publicly funded IVF on a number of grounds, among which this post will focus on two: a breach of the right to private and family life under Article 8 ECHR and Article 8 taken with the right not to be discriminated against contrary to Article 14 ECHR.
On 8 September 2022, the European Court of Human Rights (ECtHR) handed down its decision in Drelon v France (application nos. 3153/16 and 27758/18).[1] The Court unanimously found a violation of Article 8 of the European Convention on Human Rights in relation to the collection by the French Blood Donation Service, the Établissement Français du Sang (EFS), of personal data relating to a potential blood donor’s presumed sexual orientation and the excessive length of time the data was kept in a public institution.
The Appellant in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56 was assigned female at birth, however during and after puberty they felt revulsion at their body and underwent surgery in 1989 and 1990 to alleviate those feelings. The Appellant who identifies as non-gendered, is a campaigner for the legal and social recognition of this category. The provision of “X passports” are a focal point of the Appellant’s campaign.
The question of how to determine whether or not the deportation of a foreign national convicted of criminal offending is a disproportionate interference in the family life that they may share with their partner or child has been explored in a series of cases, including the leading decisions of KO (Nigeria) (Appellant) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) [2020] EWCA Civ 1176 and has been discussed in detail on this blog here, here and here.
The pandemic has had a knock-on effect of increasing awareness of devolution. The governments of Northern Ireland, Scotland and Wales have been responsible for navigating the pandemic in their own countries, and the approaches taken have sometimes significantly diverged. With the COVID Regulations affecting the essentials of our daily lives, public attention across the UK has been drawn to the powers of devolved governments to govern differently from Westminster.
One surprising difference between the Welsh and UK Governments – and one that has evaded much public scrutiny – is that the Welsh Regulations created a new power of entry which allows police officers to enter people’s homes in certain circumstances to investigate breaches of the COVID Regulations. No such power has ever been included in the English Regulations, and the power of English police officers to enter people’s homes is more restricted, governed by the provisions of the Police and Criminal Evidence Act 1984 (‘PACE’) and the common law rules for dealing with breaches of the peace.
The practical issues around the Welsh police power of entry to people’s homes have fallen into the background in recent months, because it mainly arises when there is or has been a suspected unlawful gathering in someone’s home. (Although on 26 December 2021, a new restriction was introduced banning gatherings of more than 30 in homes.) With restrictions hopefully easing again, reflecting on this regulation raises broader questions about human rights and legal scrutiny in Wales.
Having been temporarily suspended in early January as a result of an increase in COVID-19 cases, the Grenfell Tower Inquiry hearings resumed on 8 February 2021. The fire killed 72 people.
The hearings are being conducted remotely using a Zoom-based video platform, which the Inquiry describes as “a temporary measure to be used only for as long as absolutely necessary”.
The Inquiry conducted Phase 1 of the investigation, which focused on the events of the night of 14 June 2017, on 12 December 2018. Phase 2 is currently underway, which examines the causes of these events, including how Grenfell Tower came to be in a condition which allowed the fire to spread in the way identified by Phase 1.
Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent) [2017] NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
R (o.t.a A and B) v. Department of Health [2017] UKSC 41, 14 June 2017 – judgment here; previous post here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS. Continue reading →
R (o.t.a P & others) v. Secretary of State for Home Department & others [2017] EWCA Civ 321, Court of Appeal, 3 May 2017 – read judgment
The Court of Appeal has upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8.
The problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.
Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.
In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.
The Court concluded – with an interesting dissent from Charles J – that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
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