International Stem Cell Corporation v Comptroller General of Patents  EUECJ C-364-13, 18 December 2014 – read judgment
This was a referral to the European Court of Justice (CJEU) requesting clarification of Article 6(2) of Directive 98/44/EC protecting biotechnological inventions (“the Biotech Directive”). We posted earlier about the High Court decision leading up to the referral concerning two GB patent applications that both involve the ‘parthenogenetic activation of oocytes’. The Court asked for clarification on what exactly defines a human embryo and what precisely is the developmental potential of a parthenote.
Ever since scientists came upon the idea of using embryonic stem cells for therapeutic purposes there has been a something of an ethical furore around the topic. So the pressure has been on to find alternatives. Parthenotes – products of unfertilised egg division – have been proposed as candidates. However even research using parthenotes may fall foul of the law’s protection of ‘human dignity’. Continue reading
Opinion of CJEU, 18 December 2014 – read Opinion
Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.
Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation that the EU
“shall accede to the ECHR”.
Nice and simple then? No, not exactly, when you look at the extremely complex Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.
One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.
The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.
British Dental Association v. General Dental Council  UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 - read judgment UPDATED
Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.
The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.
Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.
As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.
Unison (No.2), R (on the application of) v The Lord Chancellor - read judgment  EWHC 4198 (Admin)
The Divisional Court (Lord Justice Elias and Mr Justice Foskett) has dismissed Unison’s second-generation attempt to challenge by judicial review the legality of the Employment Tribunal fees system but gave permission to appeal to the Court of Appeal. The “striking” reduction in claims (79 per cent fewer) presented to Employment Tribunals, Lord Justice Elias accepted, was evidence that the system was “extremely onerous” for people in the position of the hypothetical claimants construed by Unison in their legal argument but “not so burdensome as to render the right illusory” (paragraph 53).
Noting the potential infringement of Article 6 rights, Lord Justice Elias was not convinced that the evidence available to the Court surmounted the high threshold set by the European Union case law on effectiveness (paragraphs 23-51; & 60-64); particularly where hypothetical rather than real examples deprived the Lord Chancellor of an opportunity to redress any alleged deficiencies in the scheme (see paragraphs 62-64). Continue reading
R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others  EWCA Civ 1622 – read judgment
The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.
This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful. Continue reading
R (o.t.a WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN) v CHARITY COMMISSION, 12 December 2014, Dove J, no transcript yet available, summary on Lawtel (£)
Judicial review is an excellent and flexible remedy, filling the gaps when statutory and other appeals do not provide a remedy for unlawful administrative acts or omissions.
But there is a flip side, well exemplified by this extempore decision refusing permission for a judicial review – save in exceptional circumstances, you can only seek judicial review when there is no other available remedy.
In this case, Dove J decided that the Court had no jurisdiction to seek judicial review of the Charity Commission’s decision to launch an inquiry and make a production order concerning the Jehovah’s Witnesses charity because the Charities Act 2011 provided for appropriate statutory remedies that the charity should pursue first.
The summary gives only the shortest account of the underlying facts, but it appears as if there are two particular congregations of concern being investigated by the Charity Commission.
An NHS Trust v Child B and Mr and Mrs B  EWHC 3486 (Fam) – read judgment
I posted earlier this year a discussion of Ian McEwan’s pellucid and moving account of the difficulties encountered by judges when steering between the rock of parental faith and the hard place of children’s best interests (The Children Act, 2014).
This judgment, although handed down four months ago, has just been published, and confirms that judges may be resolute, however politely, in the face of parents’ insistence that they know what is best for their children.
The application concerned a very young child (B) who sustained burn injuries in an accident. The clinical team responsible for his care advised that the best practice treatment for his injuries was skin grafting and that there was a significant risk that he would require a blood transfusion . To avoid infection and for the best possible result, skin grafts should be carried out no later than 7 to 10 days from the initial burn. The Court was also told that in the event of a skin graft taking place without the ability to give a blood transfusion, there would be a risk of death as a result of sepsis developing. Continue reading