Category Archives: In the news

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Right to Blog, Lord Chancellor’s Legacy and Accountability for War Crimes – The Human Rights Roundup

Human rights roundup - LibyaWelcome back to the UK Human Rights Roundup, your regular tasting menu of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

With an upcoming anniversary, the role of the Lord Chancellor (and, of course, his reforms) has been under scrutiny. Further, the new Defamation Act is looked at in more detail, civil liberties are abused and war crimes resurface in a number of ways. And, the gay marriage bill continues on its tumultuous journey to the House of Lords.

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Can you decide who is to be your unpaid advocate? Eleanor Battie

mckenzie-friend11RE F (CHILDREN) 14 May 2013, Court of Appeal – extempore so currently only available as a Lawtel summary (£)

A topical case, this, given legal aid cutbacks. It concerns the ability of unrepresented litigants to choose those to help them out as advocates in court. Not an unconstrained right, as this case demonstrates. The High Court ruled that a judge had been entitled to refuse an application for a particular person to act as a McKenzie friend despite that individual not being present in court at the time of the application. The Court of Appeal upheld that decision. 

This application for permission to appeal resulted from the refusal by a family judge to permit a person to act as a McKenzie friend within care proceedings.

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Closing the loophole: Care services and human rights protection – Sanchita Hosali and Helen Wildbore

Care homeMuch of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”

What loophole?

Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.

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UK Uncut loses: Taxman’s Goldman Sachs deal “not a glorious episode”, but lawful

281851582_781339792001_110208UKUncut-4336146UK Uncut Legal Action Ltd v. (1) Commissioners of Her Majesty’s Revenue and Customs (HMRC) and (2) Goldman Sachs – read judgment

Tax avoidance has hit the news again, with Apple currently facing questions from the US Senate about its exploitation of Irish company law loopholes and David Cameron writing to offshore tax havens to push for more transparency over tax rules. As it happens, the High Court has just handed down a ruling in a case which raises many of the same issues.

The campaign group UK Uncut brought a judicial review claim against HMRC. They argued that it was unlawful for HMRC to reach a confidential settlement in 2010 with the investment bank Goldman Sachs over a multi-million pound unpaid tax bill arising out of a failed tax avoidance scheme. Mr Justice Nicol held that HMRC’s decision was not unlawful, but criticised the actions of HMRC officials and HMRC have acknowledged that the manner in which the settlement was agreed involved several mistakes.

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IVF Doctor not liable for failing to warn parents of genetic disorder in child – Australian Supreme Court

12280487228o6zg0Waller v James  [2013] NSWSC 497 (6 May 2013) – read judgment

So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate.

Since 1999 (MacFarlane v Tayside Health Board) such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust).  Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform? This Australian case gives some indication of the way the courts may approach such questions.

Background facts

Keeden Waller was conceived by IVF using the Wallers’ own gametes. There was a fifty percent chance that he would inherit from his father a blood disorder called antithrombin deficiency (ATD), a condition that affects the body’s normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves. Continue reading →

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Myths and Realities about Equal Marriage

gay_marriage_cake_300The Marriage (Same Sex Couples) Bill is back before Parliament today for the “Report Stage”. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.

I have written a new article for the New Statesman on some of the myths and realities surrounding the debate - you can read it here. It’s all a bit complicated, as you might expect.

Our previous coverage is linked to below. Hopefully, party politics won’t end up derailing this important bill. As the New Yorker recently predicted:

One day, not long from now, it will be hard to remember what worried people so much about gay and lesbian couples committing themselves to marriage.

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EU Law v Immigration Bill, Right to Die and Reform, Reform, Reform – The Human Rights Roundup

Human rights roundup (NEW)Welcome back to the UK Human Rights Roundup, your regular legal melting pot of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

Not the right to life, but the right to die dominates the human rights headlines this week, with separate litigation in Strasbourg and the Strand.  Commentary abounds on not just the ECHR’s role in domestic law, but how proposed reforms comply with EU law, particularly on the immigration front. Finally, a wide range of human rights approaches to much of the coalition’s plans for this Parliament.

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Apocalypse soon? The UK without the European Convention on Human Rights

HRLA speakersUpdated, 19 May 2013 | Last night, lawyers, academics, NGOs and even the President of the Supreme Court gathered in a basement conference room in central London.  Their purpose was to discuss the UK “without Convention Rights”, a possible future that some might view as post-apocalyptic, and others as utopia.  Either way, given recent political developments, the event could not, in the words of the Chair, Lord Dyson, “be more timely or topical.”

The seminar was hosted by city law firm Freshfields Bruckhaus Deringer LLP and presented by the Human Rights Lawyers Association and the Bingham Centre for the Rule of Law.  Lord Dyson, who is the Master of the Rolls (the second most senior judge in England and Wales), introduced three speakers:

  • David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation since 2011;
  • Professor András Sajó, the Hungarian Judge at the European Court of Human Rights; and
  • Professor Hugh Corder, Professor of Public Law at the University of Cape Town.

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Barclay brothers question independence of Sark’s Seigneurs and Seneschals

sark aerialR (on the application of) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2013] EWHC 1183 (Admin) – read judgment

The power of the ruling body to alter the remuneration of the judicial “Seneschal” was open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention.

The claimants last challenged the independence of Sark’s governing and judicial bodies in successful  judicial review proceedings in 2009.  Continue reading →

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Will the new criminal legal aid reforms breach the right to a fair trial?

Chris Grayling, justiceOne of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.

In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?

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Right to Die, Grayling v Legal Aid and Abu Qatada Finally Off (?) – The Human Rights Roundup

Christian rights case rulingWelcome back to the UK Human Rights Roundup, your regular chocolate selection gift box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

This week, the Government announced plans to curb Article 8 of the ECHR, Grayling continues to cause controversy with his reforms of both the Criminal Justice System and of judicial review, and Qatada may soon be leaving us for pastures new.

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“Is the test for capacity to cohabit the same as the test for capacity to marry?”

mentalhealthPC (by her litigation friend the Official Solicitor)[1] and NC [2] v City of York Council [2013] EWCA Civ 478 – read judgment

It may seem strange that the same individual, with learning difficulties, can be considered to have capacity to marry, but not the capacity to decide whether to live with the person they have espoused. What, in essence, is marriage, that puts it on such a different footing to informal cohabitation?

The question arose because the woman in question (PC) had married NC after he had been convicted and sentenced for serious sexual offences.  She had briefly cohabited with the him before he was convicted and married him in 2006 while he was in prison.  He was due for release on licence in 2012. It was common ground that he posed a serious risk to PC in her capacity as a cohabiting wife. The local authority obtained a declaration from the Court of Protection ([2013] Med LR 26) that although PC had had capacity to marry and to understand the obligations of marriage, she did not have the capacity to decide whether to cohabit with NC upon his release. What Hedley J said was this:

She is undoubtedly within section 2(1) [of the Mental Capacity Act] requirements of impairment. Applying the section 3(1) test I am not satisfied that she is able to understand the potential risk that NC presents to her and that she is unable to weigh the information underpinning the potential risk so as to determine whether or not such a risk either exists or should be run, and should, therefore, be part of her decision to resume cohabitation.  Continue reading →

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Who “holds” the working papers of the Climategate inquiry?

emailgate_mockup_k_SMLHolland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013  - read judgment

In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.

UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER  concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information. 

This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them.  UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.

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Secret Imprisonment, Rule of Law and Legal Aid Under Attack – The Human Rights Roundup

RoundupWelcome back to the UK Human Rights Roundup, your regular assortment of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

Not a particularly noisy week on the human rights front, but some interesting summaries and analyses.  The House of Commons Library has compiled a summary of UK cases before Strasbourg since 1975, as well as on the prisoner voting issue.  Some commentary on the issue of secret justice, in particular the role of the independent reviewer of terrorism legislation, and the powers of the court of protection in contempt proceedings.

In the News

Legal Aid

The Legal Aid cuts are set to continue – see Adam Wagner’s  post on the latest consultation, which closes on 4 June 2013. As with previous consultations, we will be collating responses so please send us yours (to email click here).

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More major rule of law changes, more dodgy statistics used to justify them

9780312421274“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of  the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013. 

The  reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to

  1. removing legal aid for prisoners challenging the way they are treated in prison,
  2. reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
  3. the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
  4. amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
  5. introducing price competition into the criminal legal aid market,
  6. reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
  7. reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
  8. reducing fees to experts in civil, family and criminal cases by 20%.

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