human rights


Let’s talk about sex: case note on For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37

5 December 2023 by

In For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 (“For Women Scotland 2”), the Inner House of the Court of Session has confirmed (for Scotland, at least) the relationship between the Gender Recognition Act 2004(“GRA”) and Equality Act 2010 (“EqA”). In summary, it was held that the meaning of sex in s.11 EqA incorporated the GRA framework. The upshot is that, for transgender people, sex under the EqA is determined by possession of a GRC. Thus, for EqA purposes, the sex of a transgender person without a GRC is their natal sex. On the other hand, the sex of a transgender person with a GRC is their “acquired” (to use the language of the GRA) gender.

This case note briefly sets out some of the relevant law, explores the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.


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The Good Friday Agreement and the European Convention on Human Rights

29 August 2023 by

Introduction

On 11 August, a piece from Professor Richard Ekins KC (Hon) set out a case for the UK denouncing the European Convention on Human Rights (ECHR) and leaving the treaty system altogether. One of the main arguments in favour of this is that it would ‘restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be’. This marks one of the more recent such calls, amid a growing chorus of Ministers in the UK Government and Conservative Party MPs to leave the ECHR. Also, it should be noted that we have been here before. The constitutional aspects of such a move aside, there are particular reasons why it would impact Northern Ireland. While Northern Ireland does not feature in Professor Ekins’ 11 August piece, he has previously written about the interaction between the ECHR and the Good Friday Agreement 1998 (GFA), which underpins the modern devolution settlement in Northern Ireland and which brought an end to a brutal and deadly conflict. This interaction is the subject of this post.


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Coronial powers and the rights of the unborn (Part 2)

14 August 2023 by

In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

The first part explored whether coroners should have jurisdiction to investigate stillbirths. 

This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?

For a brief introduction to Aisha Cleary’s case, please see Part 1.

Article 2 ECHR rights in utero

Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]


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Coronial powers and the rights of the unborn (Part 1)

11 August 2023 by

In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?

The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.

Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving, had a tinge of blue on her lips, but was still warm’.[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died.  The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.[2]

Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.


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Mermaids v LGB Alliance: Tribunal rejects attempt to deregister controversial charity

29 July 2023 by

Despite what the parties and their supporters hoped, this case (Mermaids v The Charity Commission of England and Wales & LGB Alliance [2023] ULKFTT 563 (GRC)) was not – said the Tribunal – about the rights of gender diverse people (as represented by Mermaids) or the rights of gay, lesbian and bisexual people (represented by the LGB Alliance). 

On the face of it, the issue decided by the Tribunal (General Regulatory Chamber, Charity) on 6 July 2023 was a narrow one: whether Mermaids was entitled to challenge the Charity Commission’s decision to register the LGB Alliance as a charity. But its ruling – that Mermaids could not – was highly significant as a robust affirmation of the value of debate in a democratic society.  


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Court of Appeal upholds challenge to Rwanda removals policy – an extended look

19 July 2023 by

R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2023] EWCA Civ 745

The Claimants in this case are 10 individual asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania who entered the UK irregularly by crossing the English Channel in small boats, together with one charity, Asylum Aid.


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R. v. Foster: Reigniting the UK Abortion Law Debate

17 July 2023 by

Last month marked one year since the startling repeal of Roe v Wade on the 24th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.


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Unpublished policy and unlawful detention: a case note on R (MXK) v Secretary of State for the Home Department

29 June 2023 by

In R (MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin), the Administrative Court held that:

  1. the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
  2. the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
  3. the Policy was unlawful because it was unpublished; and
  4. the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.

In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.


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Covid and Free Speech in the High Court

11 April 2023 by

Introduction

On 5 April 2023 the High Court handed down judgment in Adil v General Medical Council [2023] EWHC 797 (Admin). The case examined the extent to which a professional regulator can interfere with the right to freedom of expression of an individual subject to its regulation, as well as the circumstances in which the Court should accept challenges to decisions made by regulators in the performance of their duties. It is the first case decided by the High Court concerning anti-vaccination statements made by a doctor in relation to the COVID-19 pandemic, and the actions of the General Medical Council (“GMC”) in response. 

Factual Background

Mr Adil is a consultant colorectal surgeon. Over the course of the COVID-19 pandemic, he posted multiple videos on social media in which he, amongst other things, made statements to the effect that:

  1. COVID-19 did not exist;
  2. the pandemic was a conspiracy brought about by the United Kingdom, Israel and America; 
  3. the pandemic was a scam which was being manipulated for the benefit of Bill Gates and pharmaceutical companies;
  4. Bill Gates infected the entire world with COVID-19 in order to sell vaccines; and 
  5. COVID-19 vaccines would be given to everyone, by force if necessary, and could potentially contain microchips that affect the human body.

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Surrogacy, IVF and equality: JR176(2)’s application for judicial review

28 February 2023 by

Introduction

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.


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Supreme Court finally weighs in on the Tate’s viewing platform

22 February 2023 by

In a headline-grabbing decision, the Supreme Court has decided that an observation platform at the Tate Modern Art Gallery (“the Tate”), which overlooks a number of nearby luxury apartments, gives rise to the tort of nuisance – read judgment

The residential flats (right) are overlooked by the Tate Modern’s viewing platform. Photograph: Victoria Jones/PA

In 2017 a group of apartment owners from the Neo Bankside building issued proceedings complaining that visitors accessing the south side of the Tate’s observation platform could, and frequently did, look directly into the living areas of their homes (which have floor-to-ceiling windows). The judgments refer to visitors “peering in”, “looking”, in some instances waving to the flat occupants (friendly), and there was even a mention of someone looking in using binoculars (creepy). The evidence at trial also established that pictures taken from the platform, including views of the apartment interiors, had been posted on social media. The owners alleged that the Tate’s operation of the observation platform gave rise to the tort of nuisance, and they sought an injunction requiring it to prevent the intrusion they were experiencing (for example by blocking off that part of the platform), or damages in the alternative. 


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Schrödinger’s Defendants: Inquests, Unlawful Killing and Criminal Acquittals

6 February 2023 by

Three recent cases indicate a substantial change in law and practice, with inquests now seemingly free to make a determination of unlawful killing notwithstanding the acquittal of a defendant at a criminal trial.

The Inquests into the Shoreham air crash

R (Leeson) v HM Area Coroner for Manchester South [2023] EWHC 62 (Admin)

 R (Makki) v HMSC for S. Manchester [2023] EWHC 80 (Admin)

Photograph: Linda Nylind for the Guardian

The coronial and criminal jurisdictions have a long and tangled relationship. The word “murder” derives from “murdrum”, the Medieval tax levied on a community after a coronial finding that an unidentified body was that of a Norman. In later centuries, juries at inquests could find people guilty of murder, empowering the coroner to issue an arrest warrant and commit them for trial. Yet from common soil and entwined roots, inquests and trials grew into increasingly distinct plants and during the twentieth century the primacy of criminal investigations and prosecutions became enshrined in legislation. Coroners were required to suspend inquests during criminal proceedings. If resumed, those inquests were prohibited from coming to conclusions that were “inconsistent” with the verdict of the criminal court: see what is now para.8(5) of Schedule 1 of the Coroners and Justice Act 2009 (“CJA 2009”). After 1977, inquests were prohibited from appearing to determine criminal liability on the part of a named person: see what is now s.10(2)(a) CJA 2009. The conclusion of “unlawful killing” remained, but inquests could no longer formally identify who was responsible; that was a matter solely for the criminal courts.


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Cases of the Year: 2022

5 January 2023 by

The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year. 

Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.

But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:


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Divisional Court upholds Government’s Rwanda policy – an extended look

20 December 2022 by

Image: The Guardian

R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2022] EWHC 3230 (Admin)

On 14th April of this year, the then-Prime Minister, Boris Johnson, announced a new ‘Migration and Economic Development Partnership’ between the UK Government and the Government of Rwanda to enable the removal of certain persons to who enter the UK to claim asylum (particularly those who arrive in small boats crossing the English Channel) to Rwanda, where – if their claims succeeded – they would be resettled.

Yesterday, the Divisional Court (Lewis LJ and Swift J) held that, in principle, the relocation of asylum seekers to Rwanda was consistent with the Refugee Convention and other legal obligations on the government, including those imposed by the Human Rights Act 1998. However, the Court also held that Home Secretary had failed to properly consider the circumstances of eight individual claimants to decide whether there was anything which meant that their asylum claim should be determined in the UK or they should not be relocated to Rwanda. Therefore, the decisions in those cases were set aside and referred back to the Home Secretary for her to consider afresh.

The Court’s judgment is detailed and addresses a number of issues. In this post, the focus will be on the general challenge made to removal to Rwanda in principle and what can be expected in the (likely) event that this aspect of the case is appealed further.


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Prof Brice Dickson: The UK’s Engagement With International Human Rights Monitoring Mechanisms

5 December 2022 by

The UN human rights council on 13 March 2018 in Geneva, Switzerland. Photograph: Fabrice Coffrini/AFP/Getty Images

We are pleased to welcome this guest post from Prof Brice Dickson, Emeritus Professor of International and Comparative Law at Queen’s University Belfast, in which he sets out the international human rights monitoring mechanisms applicable to the UK and considers the UK’s engagement with the relevant monitoring processes (Eds).

On 10 November 2022 the UN Human Rights Council conducted its fourth Universal Periodic Review of the UK’s compliance with international human rights standards. The Council’s report was adopted just six days later and contained no fewer than 302 recommendations from other States on how the UK could improve its human rights record. That figure is up from 227 in 2017. For early accounts of the review meeting see the pieces by Marcial Boo and Robert Booth

The UPR, of course, is just one of many international mechanisms for monitoring human rights in the UK. In a book published this month, International Human Rights Monitoring Mechanisms: A Study of their Impact in the UK, I examine the full range of monitoring mechanisms to which the UK is subject and attempt to evaluate how they have operated to date, especially since 2000. In particular, I try to determine what difference they have made to the protection of human rights in practice. The analysis extends to monitoring conducted by a committee of the International Labour Organisation and by the Council of Europe’s Group of States against Corruption (GRECO), two bodies which do not usually attract the attention of human rights lawyers. 


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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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