Employment Tribunal Fees: The evidential ‘hot potato’ to be heard by Court of Appeal

unison-logo-1Unison (No.2), R (on the application of) v The Lord Chancellor - read judgment [2014] 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

Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

legal-aidR (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] 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

Jehovah’s Witnesses, and judicial review being a last resort

Moston-Kingdom-Hall-20140725101407111R (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.

Continue reading

Judge orders blood transfusion for Jehovah’s Witness child

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An NHS Trust v Child B and Mr and Mrs B [2014] 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. 

Background Facts

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

Time for human rights to get down to business? – Adam Smith-Anthony

open-for-business4Businesses, governments and civil society descended on Geneva last week for the 2014 UN Forum on Business and Human Rights, the largest global gathering in the business and human rights field. There were lofty statements of high ambition but the pervasive tone and success of the Forum was more prosaic: nitty-gritty implementation.

It was a conference dedicated to developing and sharing the best practices capable of shifting businesses from showcase philanthropy to real accountability, from vague aspirations to measurable impacts, and from a race to the bottom to a competition to be recognised as world leading. It was a call for real action; as one panel moderator told his coffee-clutching audience early on Day 3: “I want to see dust on everybody’s shoes”.

Implementation of what?  Continue reading

Cosmetics tested on animals banned in the EU – or are they?

animal-experimentation-rabbit-draize-eye-irritacy-testsR (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening)  [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment

Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)

This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested. Continue reading

Supreme Court finds third way between Strasbourg and House of Lords

ukSupremeCourt_2288070bR (Haney and others) v. Secretary of State for Justice, 10 December 2014read judgment

Indeterminate sentences and the inadequate funding of rehabilitation during them has posed problems since Imprisonment for Public Protection (IPP) sentences hamstrung the system. The courts here and in Strasbourg have been in two minds what to do about cases where prisoners have not received the assistance they ought to have received – and hence are not, by domestic standards, ready for release.

Two solutions have been proposed to date. The House of Lords in R (James)  [2009] UKHL 22 decided that this did not amount to a breach of Article 5 of the Convention. When James got to Strasbourg, the ECtHR (2013) 56 EHRR 12 disagreed; continued detention was unlawful.

The Supreme Court found a third way, as we shall see. Another example of our courts’ increasing confidence when confronted with a Strasbourg decision they think to be wrong. Continue reading