Not unlawful to refuse egg freezing therapy for Crohn’s sufferer

bigstock-Boiled-Or-Raw-Egg-8015047Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment

Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.

There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles.  As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources. Continue reading

Article 11: Right to strike and insecure workers – Lauren Godfrey

strike2_5Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to reflect on what, if any, role human rights principles have in redressing that imbalance:

(1)    The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.

(2)    Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here. Continue reading

Public and private law wrongs are not the same – Court of Appeal

110618346_Vincent_398959c Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 472, 15 April 2014 – read judgment

This judgment is a neat illustration of how important it is to keep the concepts of public law and private law unlawfulness separate – they do not necessarily have the same legal consequences.

It arose thus. The Tchenguiz brothers are high-profile businessmen, and they did not take kindly to being arrested and bailed on charges of fraud at the behest of the SFO. They sought judicial review of the search and arrest warrants. In due course, the Divisional Court ([2012] EWHC 2254 (Admin)) held that the SFO had made material non-disclosure and factual misrepresentations to the judge which vitiated the grant of the warrants, and the brothers have brought a substantial follow-on claim for damages - £300 million according to another recent judgement here.

So the Tchenguiz brothers have established unlawfulness, but, as we shall see, this does not automatically entitles them to damages.

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Bike repair and cycling training for your firm – and all for a good cause

Screen Shot 2014-04-15 at 12.05.40Not too long ago, a friend of mine, Jem Stein, set up a brilliant social enterprise called the Bike Project. It has gone from strength to strength. The project is now loking for (i) new corporate clients for its very reasonable and professional bike repair service and/or bike training service, (ii) new bikes to repair. All details below and in this flier – Adam Wagner

The Bike Project was set up in late 2012 with the primary aim of refurbishing second hand bikes to give to destitute refugees and asylum seekers in London.

Many people come to this country with nothing, often escaping persecution. Whilst a number are forced to live on as little as £35 per week and unable to work as their status as a refugee is approved, those who are able to work find getting around on public transport simply too expensive. The effect that a bike can have is underestimated. It provides access to all that London has to offer: reaching charities that help with food, healthcare, education, and even the lawyer who can aid their application process. Of course, a bike can aid employment, if they are lucky enough to receive refugee status.

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Strategic litigation: the noble pursuit of litigation – Polly Botsford

-0430-POLITICS-Justice.-006Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.

Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.

To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school. Continue reading

Passive smoking in prison not a breach of human rights – Court of Appeal

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Backlog, backlash and beyond: debating the long term future of human rights protection in Europe – Alice Donald

Strasbourg_ECHR-300x297Around 150 delegates, including representatives of all 47 Council of Europe states and two judges of the European Court of Human Rights, met in Oslo last week. Their mission? To reflect on the protracted process of reforming the European Convention system and imagine what it might look like in 2030.

Non-government organisations and academics (myself included) joined the insiders to engage in ‘blue-skies’ thinking, despite the dense fog that enveloped the hilltop venue.

The end of the beginning

The Strasbourg Court as we know it came into being in 1998 with the entry into force of Protocol 11 to the Convention. Subsequent reform was driven by two closely-linked imperatives: first, to reduce the backlog both of applications and non-executed judgments and secondly, to reinforce the subsidiary role of the Court vis-à-vis national authorities.

As regards the former, notable developments include the steps taken since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more controversially) the introduction of a shorter deadline, narrower admissibility criteria, and stricter conditions for applicants. The post-judgment process of implementation was also reformed to permit more intensive supervision by the Committee of Ministers (the Council of Europe’s executive arm) of urgent, complex or inter-state cases and lighter touch supervision of the rest. Continue reading

Irascible does not mean incapable – Court of Protection

brain-in-headWandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment

This was a case about determination of mental capacity,  which both judge and counsel described as “particularly difficult and finely balanced”.  The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that

His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.

Background

IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain.  Continue reading

Consultation – backing no horses, and the importance of interim relief

_69067404_daycentreprotestLH, R (o.t.a) v. Shropshire Council  [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014  - read judgment

Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of  ex parte Baker there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.  

In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness. 

The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.

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Anonymity protection for under age defendants expires when they are 18: High Court

youth offencesJC and another v the Central Criminal Court [2014] EWHC 1041 (QB) (08 April 2014) – read judgment

This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 … prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media. [Sir Brian Leveson P, giving the judgment of the court , opening the case at para 1]

Background

On 15 November 2013, the claimants JC and RT, then 17 years of age, each pleaded guilty at the Central Criminal Court to an offence in early 2012 of joint possession of explosives. In both cases, the Crown accepted that they obtained this property without any intention of endangering life or causing serious injury to property.  Continue reading

“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

bird503_mediumSurrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QCHenry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading

Bone marrow disorder appeal fails

298x232-dna_genetic_test-298x232_dna_genetic_testMeiklejohn v St George’s Healthcare NHS Trust and Another [2014] EWCA Civ 120 - read judgment

Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.

This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ([2013] EWHC 469 (QB), [2013] Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”). Continue reading

International Court of Justice orders Japan to suspend its Antarctic whaling program

japan-whaling-e1270007253119The International Court of Justice has today upheld Australia’s bid to ban Japan’s Antarctic whaling program.

ICJ president Peter Tomka said the court concluded the scientific permits granted by Japan for its whaling program were not scientific research as defined under International Whaling Commission rules.  The Court had found, by a majority of twelve votes, that Japan had conducted a program for logistical and political considerations, rather than scientific research. There is of course no appeal against an ICJ ruling and Japan has officially said that it will comply with the ruling.

The following is based on the ICJ’s press release.

Findings of the Court

First, the Court dismissed Japan’s argument that the Court had no jurisdiction over the dispute, submitted by Australia. Continue reading

Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins. Continue reading

Backing just one horse in a consultation process can be unfair


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWHC 890 (Admin), Phillips J, 27 March 2014  - read 
judgment

Public law principles allow you to challenge a decision of a public authority if the consultation process preceding it was unfair. Unfairness comes in many shapes and sizes, but the commonest one alleged is that it was not carried out at the formative stage. The authority had already made up enough of its mind so the consultation process ceased to mean anything  - it was just going through the motions.

The law is equally clear that an authority does not have to consult on every conceivable option. Indeed it can just consult on its preferred option. 

But this decision shows that if it does so it has to be wary, because on the particular facts that may be unfair.

Enter our cast, challenger in the form of Rusal (proprietor one Oleg Deripaska), and the defendant, the London Metal Exchange.

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