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It has been a fascinating year in which to edit this Blog. Political and social challenges – from continued government cuts to the alarming rise of Islamic State – have presented new human rights conundrums that have, as ever, slowly percolated to the doors of the country’s highest courts. And all this during the year of an astonishing General Election result and amid continually shifting sands around the future of the Human Rights Act.
The following cases are just some of those that helped define an important year for human rights in the United Kingdom. They span the jurisdictions of Scotland, England and Northern Ireland and cover issues including surveillance, medical treatment, radicalisation, equality, data protection, freedom of information, abortion and military detention. They provide a flavour of the key human rights issues that have confronted the courts in the last twelve months.
And so, in no particular order:
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1. The Protestors’ Data Case: R (Catt) and R (T) v Commissioner of Police for the Metropolis [2015] UKSC 9
Mr Catt was a 91 year-old activist whose details were retained on the Domestic Extremism Database. He had attended a number of demonstrations by a protest group intent on closing down the UK outpost of an American arms manufacturer. The evidence was that some but not all of the members of the group had in the past been intent on violence.
By a majority, the Supreme Court held that the retention of Mr Catt’s data interfered with his Article 8 rights but that the interference was both in accordance with law and proportionate. Among the key factors identified by Lord Sumption were that the police’s common law powers were “amply sufficient” to authorise the obtaining and storage of the kind of information in question, and that they were subject to an “intensive regime” of statutory and administrative regulation. All of the information on Mr Catt consisted of records made of acts he had done in public, and those “primary facts” were and always had been in the public domain. The information was retained for legitimate policing purposes and was not held for longer than required for the purposes of maintaining public order and preventing or detecting crime. Its disclosure to third parties was properly restricted.
In a persuasive dissent, Lord Toulson [65] pointed to the lack of any explanation as to “why it should be thought necessary to maintain for many years after the event information on someone about whom the police have concluded (as they did in July 2010) that he was not known to have acted violently and did not appear to be involved in the coordination of the relevant events or actions.” It is difficult to argue with his rationale:
“[I]f a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.”
You can read my colleague Dominic Ruck Keene’s post here.
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2. The Medical Consent Case Montgomery v Lanarkshire Health Board [2015] UKSC 11 (James Badenoch QC of 1COR appeared for the successful Appellant)
This was the case in which the Supreme Court reacted to the “changing paradigm of the doctor-patient relationship”. Montgomery was not only one of the seminal cases in the law of clinical negligence in thirty years, it also recognised the importance of patient autonomy and the “stimulus of human rights” in informing what a doctor must tell his or her patient about the risks inherent in a particular type of procedure.
The context was an obstetrics case in which a diabetic mother had not been warned of the risk of an obstetric emergency arising during delivery of her child, namely shoulder dystocia, which occurs when the baby’s shoulder becomes stuck behind the mother’s pelvis. The risk was considered to be of the order of 9-10%, but eventuated, leading the child to suffer from hypoxia and, ultimately, cerebral palsy.
In ruling that the mother ought to have been informed of that risk and of the availability of a caesarean section, Montgomery represents a final repudiation of the mantra ‘doctor knows best’ and the approach of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. In Sidaway, their Lordships concluded that the question of what a patient must be told was to be answered by reference to the Bolam test: what would a ‘responsible body of medical opinion’ consider should be discussed?
The new test focuses not on whether a risk reaches a level expressed as a particular percentage, or on the doctor’s own view, or even on the reasonable patient’s view. Instead, a legal test of ‘material risk’ applies, and it may involve asking whether a risk is one that the particular patient would regard as significant (emphasis added):
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
This judgment is one of many handed down this year that show that developments in human rights law do not only affect the lives of those on the fringes of society. Montgomery is likely to have an impact upon each of us every time we need medical care. Now perhaps more than ever before, “[p]atients are persons holding rights.” [75]
You can read Rosalind English’s analysis of the case here.
3. The ‘Gay Cake’ Case: Lee v Ashers Baking Co Ltd and Ors [2015] NICty 2
An unfortunate misnomer but how this case came to be known in the press , Lee followed last year’s Supreme Court decision in Bull and Anor v Hall and Anor [2013] UKSC 73. Both cases pitted equality against freedom of religious expression, and in both the former prevailed. In Lee, the Christian Defendants who owned the bakery were held to have directly discriminated against their would-be customers by refusing to bake a cake which had printed on it a picture of ‘Bert and Ernie’ and the slogan ‘Support Gay Marriage’.
The judge in the Northern Ireland County Court held that the bakers had refused to bake the cake on the ground of Mr Lee’s sexual orientation, despite their protests that it was the message on the cake that they objected to: in the light of their Christian belief, they argued that they should not be forced to promote or be seen to support a cause which conflicted with their consciences.
That did not wash with Judge Brownlie:
“… they are a business supplying services to all, however constituted. The law requires them to do just that…”.
The correct comparator was not a heterosexual or bisexual person who ordered the same cake but a heterosexual person placing an order for a cake displaying the message ‘Support Marriage’ or ‘Support Heterosexual Marriage’.
Writing in this Blog, Alasdair Henderson’s view was that:
“One key misstep appears to be that the judge conflates support for same-sex marriage with a homosexual orientation, when they are clearly different things… It is very odd that the judge felt able to tell the Defendants that they were not being asked to promote or support same-sex marriage, without properly explaining why and despite their deeply held view that they were.”
A different view was expressed by Olivia-Faith Dobbie on the Oxford Human Rights Hub:
“This approach brings into sharp focus the distinction between the right to hold a belief (which is absolute and inalienable) and the right to manifest the belief through one’s actions. To paraphrase Oliver Wendell Holmes: “the right to swing my fist ends where your nose begins.” It matters not whether it is a Christian fist and a gay nose, or vice versa, it is the actions of the person causing the harm that will attract the law’s condemnation.”
Either way, this case, decided in the aftermath of Bull, shows that the courts are taking no prisoners in seeking to apply to its full effect the still relatively new equality legislation enacted in 2010.
4. The Snowden Leaks Case: Liberty & Ors v Secretary of State for Foreign and Commonwealth Affairs and Ors [2015] UKIPTrib 13 77-H
This was a historic decision if only for the fact that it was the first time the Investigatory Powers Tribunal had ever found against the Government. It all began with the Edward Snowden leaks and revelations surrounding the US National Security Agency’s communications interception programme. Liberty and other NGOs cited breaches of Articles 8 and 10 ECHR as a result of the UK authorities’ reception, storage, use and transmission of material intercepted and shared with them by their US counterparts.
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Under the NSA’s programme, data from private communications between individuals in the UK was harvested as a result of its passage through servers located in the US. That information could then be shared with the UK, notwithstanding that authorities here would have needed a warrant under the Regulation of Investigatory Powers Act 2000 to access it themselves.
The Tribunal found that the UK authorities had unlawfully interfered with Articles 8 and 10. As Natasha Simonson argued on this Blog at the time, it was a “hollow victory” when one considered how the Tribunal had watered down what the European Court required in order for interferences in this context to be lawful. In Kennedy v United Kingdom, the Strasbourg Court had held that in order for interferences to be made “in accordance with law”, three requirements had to be satisfied: 1) the impugned measure must have some basis in law; 2) the relevant domestic law had to be compatible with the rule of law and accessible to the person concerned; and 3) the person affected had to be able to foresee the consequences of the domestic law for him.
Yet those stringent requirements were translated in the IPT as follows:
It was sufficient that ‘appropriate rules or arrangements existed and were publicly known and confirmed to exist’. The IPT found that this was satisfied by the presence of internal guidelines and policies.
The content of the rules only had to be ‘sufficiently signposted such as to give an adequate indication’.
The arrangements simply needed to be subject to ‘proper oversight’ – and the existence of an Interception of Communications Commissioner and of the IPT itself was enough.
So while some civil liberties campaigners heralded this judgment as a significant victory over GCHQ, it seems that it might not have been the progressive a result it first appeared.
5. The Family Radicalisation Cases
Not just one case but a number that can be grouped under the same heading. 2015 was the year that saw litigation involving children or families leaving the UK to live under or fight for the so-called Islamic State become a regular occurrence. It has seen the courts adapt to a novel challenge via a well-equipped toolkit previously used in quite different scenarios.
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In Re Y (A Minor: Wardship) [2015] EWHC 2098 my colleague Martin Downs appeared for a local authority in a case in which the High Court’s inherent jurisdiction was used in order to make the children in question a ward of court. This meant they could not leave the jurisdiction without the court’s permission, and that the court could order the seizure of their passports.
In Re X; Re Y [2015] EWHC 2265 care proceedings were issued under the Children Act 1989 to prevent a mother and her four children from boarding a plane to Turkey. The children were eventually placed with foster carers.
In London Borough of Tower Hamlets v B [2015] EWHC 2491, the Judge ordered that a sixteen year-old girl be removed from her home after police discovered “information of a practical nature designed to support and perpetrate terrorist attacks”. Hayden J found that the family’s engagement with the authorities revealed abuse of the violation of the child’s mind akin to sexual abuse.
As Marina Wheeler of 1COR explains in her recent survey of the latest cases of this type, their increasing number has led the President of the Family Division to issue Guidance on Radicalisation Cases in the Family Courts. The Government has also attempted to respond to the challenge via its Prevent and Channel programmes, its Counter-Extremism Strategy and an Extremism Bill. Marina warns that as things stand, “there is little to suggest a cautious or reflective approach” in these measures.
6. The Google Tracking Case: Google Inc v Vidal-Hall and others [2015] EWCA Civ 311
Can internet users obtain damages where their browsing activity is tracked without their consent and the information passed to third parties? In this case, the Court of Appeal decided that EU law gave them precisely that remedy.
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Google (US) was the culprit. The case raised two questions for the Court of Appeal: 1) Was the cause of action for misuse of private information a tort?; and 2) What was the meaning of ‘damage’ in section 13 of the Data Protection Act 1998, i.e. did it give rise to a claim for compensation notwithstanding the lack of any pecuniary loss?
The Respondents won on both grounds. Last summer, the Supreme Court granted Google permission to appeal, save that it considered an appeal on the first ground to be unarguable. The Court of Appeal analysed the second ground (the availability of damages) through the prism of Article 23 of the EU’s Data Protection Directive. The natural and wide meaning of “damage” at Article 23 included “moral” damage, such as distress. As the Master of the Rolls and Lady Justice Sharp explained:
“Since what the Directive purports to protect is privacy rather than economic rights, it would be strange if the Directive could not compensate those individuals whose data privacy had been invaded by a data controller so as to cause them emotional distress (but not pecuniary damage). It is the distressing invasion of privacy which must be taken to be the primary form of damage (commonly referred to in the European context as “moral damage”) and the data subject should have an effective remedy in respect of that damage. Furthermore, it is irrational to treat EU data protection law as permitting a more restrictive approach to damages than is available under article 8 of the Convention. It is irrational because […] the object of the Directive is to ensure that data-processing systems protect and respect the fundamental rights and freedoms of individuals “notably the right to privacy, which is recognized both in article 8 of the [Convention] and in the general principles of Community law.”
The country’s highest court will soon have the chance to consider whether they were right.
7. The Proportionality Case: R (Lumsdon) v Legal Services Board [2015] UKSC 41
Lumsdon was never going to dominate the news headlines in the way that the Snowden Leaks case or the Gay Cake case did. The subject matter might have had something to do with that – a challenge by barristers to the Quality Assurance Scheme for Advocates (QASA), which requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.
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Nevertheless from a legal perspective it was significant in the sense that it gave the Supreme Court an opportunity to clarify in some detail the correct approach to assessing proportionality. The proportionality question in this case arose because under the Provision of Services Regulations 2009 (and the EU Directive they implement (2006/123/EC)), authorisation schemes need to overcome two hurdles in order to be considered lawful: 1) the need for the scheme must be justified by an overriding reason relating to the public interest, and 2) the objective pursued cannot be pursued by means of a less restrictive measure.
In what David Hart QC of 1COR describes as a ‘tour de force’, Lord Reed explains the distinctions between the proper approaches to assessing proportionality in an EU law context versus an ECHR/HRA context. He had previously set out the correct approach in ECHR/HRA cases in Bank Mellat (No. 2) [2013] UKSC 39. In the EU context, the approach is examined at paragraph 108 of Lumsdon. Applied to the present case, the test showed that the Legal Services Board’s scheme was proportionate.
And so, as David suggests:
“there is no such thing as one-stop proportionality… for those launching into unknown or unfamiliar waters of proportionality, keep out and have handy – Bank Mellat when it is an HRA question, and this case when it is an EU question.”
8. The Black Spider Letters Case: Evans v HM Attorney General [2015] UKSC 21
Prince Charles has been on the ropes this year – not only has the state of his handwriting been the subject of intense and unprecedented judicial focus, the extent to which he has a direct line to the highest echelons of Government has also been exposed, not least as a result of Evans.
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The case involved a failed attempt by the former Attorney General to prevent the disclosure of information that the Upper Tribunal had ruled ought to be made public under the Freedom of Information Act 2000 (FOIA). A Guardian journalist had, ten years ago, sought the public release of the Prince’s letters to the Government. The Upper Tribunal considered the letters and concluded that the public interest in their disclosure outweighed the public interest in keeping them confidential. That is the test under section 2 of FOIA.
It was then that the Attorney General weighed in, issuing a certificate under his little-used section 53 power to prevent publication of the documents. Section 53(2) provides that a decision notice or enforcement notice
“shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person [in this case the AG] gives the [Information] Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within section 1(b).”
Mr Evans sought judicial review of that decision on the basis that the AG had made an error of law. The case juxtaposed two important constitutional principles: 1) a member of the government cannot overrule a decision of a court just because he disagrees with it, and 2) parliamentary supremacy. Yet as Lord Neuberger identified, there was another constitutional principle in play when considering the effect of section 53 – legality. As Lord Browne-Wilkinson said in R v Secretary of State for the Home Department, ex p Pierson [1998] AC 59:
“A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”
In order for section 53 to be taken to mean that the AG could veto the decision of the Upper Tribunal simply because he had rational grounds for disagreeing, then, according to Lord Neuberger (with whom Lords Kerr and Reed agreed):
“… it must be “crystal clear” from the wording of the FOIA 2000, and cannot be justified merely by “general or ambiguous words”. In my view, section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court simply because he disagrees with it.”
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The President of the Supreme Court agreed with the Court of Appeal that in order for there to be reasonable grounds for differing from a decision of the Upper Tribunal it would have to be shown that there had been “a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.” The certificate was quashed.
My colleague Matthew Flinn examines the case (including the dissenting views) in more detail. He suggests that Evans may not be the last word on section 53 – unambiguous statutory re-wording might well be in the pipeline.
9. The NI Abortion Case: In the Matter of an Application for Judicial Review by the NI Human Rights Commission [2015] NIQB 96
And so we return to Northern Ireland, where the High Court last week issued a declaration of incompatibility with respect to Stormont’s abortion legislation. Abortion is only permitted in Northern Ireland where a woman’s life is directly under threat or where there would be lasting, long-term negative effects on her mental or physical health from continuing with her pregnancy.
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The challenge was brought by the Northern Ireland Human Rights Commission. In Mr Justice Horner’s view, provisions within the Offences Against the Person Act 1861 breached article 8 ECHR. The practical effect of the Act is that medical staff carrying out abortions could be jailed for life for doing so.
In his judgment on relief, Horner J stated:
“In the circumstances, given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of citizens of Northern Ireland to have their Convention rights protected by the courts, I conclude that the article eight rights of women in Northern Ireland who are pregnant with foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions.”
Northern Ireland’s Attorney General is understood to be considering an appeal. Either way, given the likely degree of division within the Northern Ireland Assembly over this issue, a meaningful change in the law seems improbable in the short to medium term. Nonetheless, as reported in The Guardian, the Royal College of Midwives has expressed the view that the judgment provides some legal protection for health professionals who wish to offer “care, support and advice” to women who have a diagnosis of foetal abnormality.
Another possibility – which was, rather unusually, foreshadowed in the court’s judgment – is a referendum on the issue. That seems unlikely, but then one might have said the same of that other major human rights development this year across the Irish Sea – the Republic’s referendum on gay marriage and the resounding “Yes” that resulted.
10. The Afghanistan Detainee Case
Recent years have seen the long arm of UK law connect with the foreign operations of Britain’s armed forces with increasing purchase – the cases of Al-Skeini v UK, Al-Jedda v UK and Smith v Ministry of Defence proving particularly significant.
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The most important recent development in this sphere of human rights law is perhaps Mohammed and Others v Secretary of State for Defence, and Rahmatullah and the Iraqi Civilian Claimants v the MoD and FCO [2015] EWCA Civ 843 (Marina Wheeler acted for the MoD). Dominic Ruck Keene guides us through this complex case here.
In summary, the Court of Appeal unanimously decided that the MoD was potentially liable both in terms of public law and private law for the failures to make arrangements for extended detention and to put in place the procedural safeguards required by article 5 ECHR. The MoD breached Afghan law and article 5 by detaining a Taliban commander (SM) for more than 96 hours. Particularly problematic was the lack of any periodic, impartial and objective review of detention. SM had been detained arbitrarily.
The practice and procedure of detention by UK forces in Afghanistan beyond that time limit was not authorised by Afghan law, by UN Security Council Resolution 1890 or by international humanitarian law.
The UK had stepped outside of what was properly attributable to the United Nations and what the UN authorised because the UK’s detention policy was significantly different to that of ISAF, which only allowed for 96 hours’ detention. The UK implemented its policy in a manner that was, for practical purposes, independent of the ISAF chain of command.
The court rejected the argument that the defence of ‘act of state’ could head off the claim in tort. SM’s detention was unlawful as a matter of Afghan law, and so a private claim in tort under Afghan law could in principle be brought in England and Wales.
The Court of Appeal’s judgment is detailed and comprehensive. It is the latest section of a patchwork of decisions relating to the foreign activities of UK state agents and will no doubt inform decision-making around the UK’s role in Syria, both now and in the future.
Thanks!
Thank you to all those – both within 1 Crown Office Row and beyond – who have contributed to the Blog over the last twelve months.
Particular thanks go to our Editorial Team – Adam Wagner, Rosalind English, David Hart QC, Angus McCullough QC and Martin Downs.
Thanks also to the talented post-graduate law students who comprise our Human Rights Round-up team – Hannah Lynes, Laura Profumo, Charlotte Bellamy, Alex Wessely – and our first ever Scots law team – David Scott, Thomas Raine and Fraser Simpson.
Finally, many thanks to all our readers – have had almost half a million unique visitors from all over the world in 2015! We look forward to bringing you more human rights law news and analysis in 2016.
Jim Duffy
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