RE 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.

The applicant’s two children had been taken into care and findings had been made that one of them had suffered a non-accidental injury inflicted by the applicant. Thereafter, a final care order was made and the Local Authority applied for adoption and to terminate contact. The applicant then sought publicity for her case, which was prohibited by the court.

The applicant applied for permission to appeal against the care order and was assisted in this application by her McKenzie friend as, by then, she was not entitled to public funding and had no legal representation.

Within the appeal, the Applicant produced a statement supported by a number of documents which raised concerns with the Local Authority regarding the McKenzie friend acting for the applicant. They opposed the application for her to act as McKenzie friend.

The judge refused the application for the McKenzie friend to assist in court, after which the Applicant refused to take part in the proceedings on the basis that her rights under the European Convention on Human Rights 1950 art.6 had been infringed.

The Judge held that there was a presumption in favour of allowing a litigant in person to have the benefit of the assistance of a Mackenzie friend, O (Children) (Hearing in Private: Assistance), Re [2005] EWCA Civ 759, [2006] Fam. 1 considered. The relevant Practice Guidance also assumed that the proposed McKenzie friend would be in court on the application for permission to act. However, the judge’s decision in this case could not be faulted. He had seen the statement produced by the McKenzie friend. It was a striking document. It made clear that the proposed McKenzie friend:

1. Had embarked on a campaign concerning the family justice system and the conduct of the local authority;
2. That she did not respect the confidentiality of the family justice system in other cases and in the instant case, and
3. That she did not understand the role of a McKenzie friend, which was to assist with presentation of the case in court in a neutral manner.

It was clear that the McKenzie friend had a personal interest in the instant case and expected to give evidence to make good her contentions. Her ability to be a McKenzie friend had been compromised by the statement. She claimed that she had the permission of those involved to disclose details of other cases, but the confidentiality of family proceedings was a matter for the court. The applicant was entitled to a McKenzie friend, but her current choice was not suitable for that role. The presence of the McKenzie friend in court would not have changed the Judge’s view. He acted within the ambit of his discretion on the basis that the McKenzie friend might not respect the confidentiality of the proceedings.

Comment

As the Legal Aid Agency continue to tighten the purse strings and litigants are forced to apply to the courts without the assistance of legal representation, McKenzie friends are likely to become an increasingly present feature of the family courts. Although there is a presumption of allowing a litigant to be assisted by a McKenzie friend and it is to be expected that they would be present at the time the application is made, judges retain significant discretion to consider the appropriateness or otherwise of the proposed McKenzie friend.

Eleanor Battie is a barrister in Crown Office Row Chambers Brighton

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

• LAA must give reasons about funding expert assessments in care proceedings – Eleanor Battie
• Local authority ordered to pay substantial costs in human rights case
• Care system failure breaches children’s human rights
• Local authorities and the duty to consult with parents
• Interests of children should not prevent extradition for serious offences
• Vulnerable adults still protected by High Court’s “great safety net”

Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here and Alasdair Henderson’s commentary here

It is easy to become complacent about women’s reproductive rights in mainland Britain. Compared to our Irish neighbours, women here are able to access their chosen contraceptive, abortion and maternity services with relative ease. When Savita Halappanavar died after she was refused an abortion in Galway, commentators lamented a system where a woman could be told by healthcare staff that she couldn’t have an abortion because Ireland is a Catholic country. We imagined that such events could not happen here. A recent judgment of the Scottish Inner House of the Court of Session (the Scottish Court of Appeal) shakes that belief. Of most concern is that the court failed to engage with the human rights implications of its decision.

Our abortion law is found in the Abortion Act 1967. Section 1 makes abortion lawful only when it has been authorised by two doctors who attest that continuing the pregnancy poses a risk to a woman’s physical or mental health, or where the child would ‘suffer from such physical or mental abnormalities as to be seriously handicapped’. In effect, all abortions, save those for fetal abnormality, are performed on the basis that there is a threat to the woman’s physical or mental integrity as a result of pregnancy. Section 4 excuses a person from ‘participating in any treatment’ under the Act if they express a conscientious objection to abortion. As the Abortion Rights campaign points out, the law gives doctors control over women’s informed choices about their pregnancy that can lead to damaging delays in accessing abortion services.

Into this context stepped the Inner House. Alasdair Henderson reported the decision in Doogan and Wood for this blog here. To recap, two labour ward coordinators – midwives in charge of the supervision and administration of the maternity ward – complained that they were forced to participate in abortion treatment contrary to their religious beliefs. The court found that the exception for conscientious objection to abortion in section 4 should be broadly interpreted. It covered much more than participation in the actual termination itself and applied to the ‘whole process of treatment’. It included performance of the midwives’ usual functions where they related to terminations, such as managing ward resources, supervising other midwives and providing post-operative care to women on the ward.

Remarkably, the Inner House reached this conclusion without any reference to section 3 of the Human Rights Act 1998, which requires courts to interpret legislation compatibly with rights under the European Convention on Human Rights (‘ECHR’). The court assumed, without any analysis or citation of case law, that a broad construction of section 4 was appropriate in order to enable the midwives to be “true to their beliefs’ (para 37). Such an expansive approach to conscientious objection in the workplace is arguably at odds with the recent decision of the European Court of Human Rights in Eweida and others v UK [2013] 48420/10 , which makes it clear that the state has a great deal of leeway to curb manifestations of religion under Article 9 ECHR, particularly where they impinge on others’ rights. As the Outer House found at first instance, a limited interpretation of section 4 would have been compatible with Article 9.

In failing to conduct any section 3 analysis, the Inner House took no account of women’s right to private life under Article 8 of the ECHR. While the European Court has held that there is not a specific right to abortion (A, B, C v Ireland [2010] ECHR 25579/05), the Abortion Act only sanctions abortion where the pregnancy poses a threat to the woman’s health or life. As the European Court has recognised repeatedly, women’s right to physical integrity, protected by Article 8, is engaged in the abortion context (A, B, C v Ireland [2010] ECHR 25579/05, Tysiac v Poland [2007] ECHR 5410/03). This principle ought to weigh heavily in any judicial interpretation of the provisions of the Abortion Act.

There are worrying practical consequences of permitting senior midwives to refuse to engage in any activity connected with terminations. Women admitted to a maternity ward may need quick access to an abortion that would be impeded by senior staff members’ refusal to become involved on conscientious grounds. While the Abortion Act does not enable a conscientious objection to be raised where the mother is in danger of grave permanent injury or death (section 4(2)), that is a difficult assessment to make and a woman’s condition can deteriorate rapidly. Savita Halappanavar’s death shows how a system which ostensibly permitted abortion to save the mother’s life failed to protect her from the conscientious objection of her caregivers. The practical consequences of the judgment may put women at risk.

A decision of the Scottish courts does not formally bind the healthcare authorities in England and Wales. However, the national guidance on conscientious objection and abortion issued by the regulatory bodies, the General Medical Council and Nursing and Midwifery Council, is applicable nationwide. It will be amended to take the judgment into account and the effect will therefore be far-reaching. The time limit for an appeal to the Supreme Court has not yet passed and it must be hoped that the issue receives further judicial scrutiny that takes account of the human rights implications. In the meantime, this decision raises the danger that a law making abortion contingent on the permission of professionals, rather than on the informed decision of the woman, will render women’s rights precarious.

Elizabeth Prochaska is a barrister and founder of Birthrights, www.birthrights.org.uk

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• Conscientious objection to abortion: Catholic midwives win appeal
• Analysis: Early medical abortion cannot take place at home
• Ireland abortion ruling – the aftermath

Much 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.

The Human Rights Act itself does not define public functions, a flexibility which can be traced back to the intention that the law take “account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.”The loophole has arisen from interpretations about which bodies carry out ‘public functions’ and therefore have duties under the Act (YL v Birmingham City Council and Others [2007] UKHL 27).

The loophole was partially closed, following calls from a range of groups, by the Health and Social Care Act 2008 (section 145). Thus, those whose care is arranged under the National Assistance Act 1948 are now covered by the Human Rights Act. However gaps in protection remain for those whose care is organised outside of the NAA. For example, people who receive their care in a home but pay for it themselves and people who receive their care at home by an independent provider, currently lack the full protection of the Human Rights Act.

Why closing the gap is important

Without direct access to human rights protections people at risk of poor treatment have limited options to hold their provider to account. There is indirect protection through regulators of care services such as the Care Quality Commission and via the positive obligations on local authorities (and other relevant public authorities) to take action to protect people at known risk from harm.

However, this is a distant means of redress often removed from people’s daily realities. Recent investigations show how failures of care can give rise to human rights issues, and how those who lack the full protection of the Human Rights Act are at risk. For example an Inquiry by the Equality and Human Rights Commission  revealed serious, systemic threats to the basic human rights of older people who are receiving home care services.

As Baroness Greengross pointed out in yesterday’s debate on the Care and Support Bill: “there are some serious problems in ensuring that human rights protection will follow people, however their care is provided…Whoever the provider of care might be, frail and vulnerable people, who are usually very old, need that protection. We have seen too many instances of human rights being abused and quite dreadfully breached.”

Added to this is the lack of certainty about the legal obligations of various providers. Clarification of legal duties is important for compliance, but as practice-based work shows it can also be a powerful driver for developing right-respecting services.

Closing the loophole

A group of organisations including BIHR, Age UK and Liberty, are calling for an amendment to the Care and Support Bill which would close the loophole by clarifying that the Human Rights Act applies to any person who is receiving care services regulated under the Health and Social Care Act 2008.

During yesterday’s Second Reading debate several peers highlighted the need for the Care and Support Bill to be strengthened by ensuring the loophole in human rights protection is closed, an issue which will no doubt be carefully considered during the next stages of the Bill.  Such a provision would also set down in law what the Government has previously said on this issue, namely that “the requirement for people to have their human rights protected and respected is not negotiable.”

Sanchita Hosali and Helen Wildbore are Deputy Director and Human Rights Officer respectively of the British Institute of Human Rights

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• New Guide to Mental Health Advocacy and Human Rights
• Local authority ordered to pay substantial costs in family human rights case – Adam Smith
• Should we be using ‘special’ offences to prosecute crimes against disabled people? – Lucy Series

UK 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.

The facts

On 19 November 2010 there was a meeting between HMRC and Goldman Sachs (GS) to discuss a number of long running disputes about tax avoidance schemes operated by GS. Among these was an issue as to whether GS was required to pay National Insurance Contributions (NICs) in consequence of an arrangement they had with some of their employees. A related question was whether, if NICs were payable, Goldman Sachs should also pay interest on the outstanding contributions. The arrangement which GS had entered into with their employees was one which a number of other companies had also adopted. HMRC had engaged in a similar dispute with them. However, all the other companies had settled with HMRC in 2005 on terms that they would pay 100% of the claimed NICs, but no interest. GS alone continued to contest liability. David Hartnett, one of the HMRC Commissioners, was at the meeting and his understanding was that agreement was reached on all issues. In particular, GS promised to pay 100% of the NICs and HMRC promised to forego any interest.

HMRC accepted that their representatives made mistakes at this meeting. First, Mr Hartnett was under the impression that there was a barrier or potential barrier to HMRC recovering interest on the unpaid NICs. This was not in fact the case. He had not consulted the lawyers litigating the matter on behalf of HMRC, and if he had done they would have told him so. Second, internal HMRC procedures required settlements of over £100 million (where the Department was proposing to concede one or more of the issues) to be approved by the High Risk Corporates Programme Board. That was not mentioned at the meeting. Mr Hartnett and the other representatives of HMRC had not appreciated it would be necessary and they should have done.

Mr Hartnett believed an agreement had been concluded on 19 November. When the Programme Board met on 30 November 2010 it approved (retrospectively) all elements of the agreement with GS except the concession to forego interest. When GS was told about this, they were ‘agitated’, to use Nicol J’s word (given investment bankers are not exactly renowned for either their relaxed attitude to money or good manners,  this is probably a euphemism for ‘flew into an almighty rage’). They said that they believed that they had an agreement with HMRC which it could not go back on. The arrangements within HMRC allow the Commissioners to act through two of their number.

On 9 December 2010 Mr Harnett met with another Commissioner, Melanie Dawes. They decided to approve and endorse the 19 November settlement agreement with GS. The settlement was disclosed by an HMRC whistleblower in 2011, which led to hearings by the House of Commons Public Accounts Committee and subsequently this claim being brought.

The judgment

UK Uncut argued that the settlement was unlawful because it was contrary to HMRC’s own Litigation and Settlement Strategy, which was its published policy. They also argued that HMRC took into account irrelevant considerations in approving the settlement, namely:

1. Mr Hartnett’s own professional embarrassment and that of other HMRC officials.
2. The embarrassment to the Chancellor of the Exchequer if GS pulled out of a voluntary banking tax code (GS threatened to do so if the settlement was not binding, and George Osborne had just trumpeted the fact that all major banks had signed up to the code).
3. The damage to HMRC’s relationship with GS.
4. The damage to HMRC’s reputation in the wider community.

UK Uncut had two other arguments: (i) because the settlement was not a proper exercise of HMRC’s functions, it was in breach of its statutory duty; and (ii) HMRC failed to treat GS in the same way as the other companies who settled their disputes in 2005. However, the first of these depended on the other arguments succeeding, and the second was not pursued at any length.

Mr Justice Nicol held that the settlement was not contrary to the Litigation Strategy (agreeing with the National Audit Office, who had also reviewed it and reached the same conclusion). As for the irrelevant considerations challenge, he held that Mr Hartnett and Ms Dawes had denied taking their own professional embarrassment into account and in the absence of cross-examination of Mr Hartnett he had to accept this was true. HMRC admitted that embarrassment to the Chancellor was an irrelevant consideration, but Nicol J accepted its argument that the same decision would have been made even if that had not been taken into account.

Finally, the judge held that it is for the decision-maker to decide what factors are relevant or irrelevant, unless statute specifically dictates a factor must be considered or not considered, or the decision-maker’s view was irrational. In Nicol J’s judgment it was not irrational for HMRC to take into account the other considerations above and therefore the settlement was not unlawful.

Comment

Nicol J concluded with some fairly barbed understatement: “The settlement with Goldman Sachs was not a glorious episode in the history of the Revenue.” As well as highlighting again the mistakes which HMRC had already admitted he also expressed concern that no contemporaneous note was taken of the agreement on 19 November 2010, which led to great uncertainty about what exactly had happened. However,  he distinguished between maladministration and illegality. Although HMRC made mistakes, and it was correct for the court to have granted UK Uncut permission to challenge these, the mistakes did not amount to outright unlawfulness.

There is also a sense in this judgment that the outcome may well have been different if the subject-matter had been different. The courts are perhaps more used to taking apart decisions of other government departments, such as the Home Office, even where these involve a significant exercise of discretion. They are also used to dealing with tax matters where the question is one of nitty-gritty statutory interpretation. However, being invited to declare a discretionary tax settlement unlawful is a much less common occurrence.

Tax policy is a core executive function in which the courts are loath to intervene, especially where it involves an issue as controversial as a long-running tax avoidance scheme by a much-maligned investment bank. Nicol J quoted from the Fleet Street Casuals case, in which the House of Lords emphasised that the Revenue has a very wide managerial discretion in reaching agreement with individual taxpayers, and held that the relevance of HMRC’s reputation with GS or others were “quintessentially questions to be decided by the Commissioners themselves“.

Had this been an immigration or housing case, maybe the mistakes would have amounted to illegality. As it was, UK Uncut will have certainly succeeded in making HMRC think very carefully about future settlements, but didn’t quite get this one held unlawful.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

• Strasbourg rules that excessive tax rates offend A1P1
• Another Iranian bank released by the EU – Wikileaks here as well
• No anonymity for bankers involved in Libor scandal

Waller 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.

Although there was no genetic test for ATD at the time, the Wallers claimed that their IVF doctor was negligent in not ensuring they knew of the risk of their child inheriting ATD.  They argued that, if they had been warned, they would not have used Mr Waller’s sperm.

Another action – what in this country would be called a “wrongful life” claim – was also taken on behalf of Keeden to recover damages for his disabilities and their consequences failed (Waller v James [2006] HCA 16). The High Court held that Keeden’s life with disabilities was not actionable damage.

The question before the Court was therefore whether a reasonable obstetrician and gynaecologist practising in the area of infertility in 1999, in the position of the defendant, who had been told that Mr Waller suffered from ADT, should have considered the possibility that a child conceived from Mr Waller’s sperm would inherit the mutation and the risk of thrombosis associated with inherited ADT to a neonate or child.

The defendant submitted the relationship between the plaintiffs and the defendant did not give rise to the duty contended for as he was not a geneticist or haematologist. He was a gynaecologist with a sub speciality in infertility and IVF, and, as such, he could not be expected to be aware of the “myriad range” of genetic conditions, or to have detailed information of any given genetic condition or the risks inherent therein. He had been retained to assess a fertility assistance problem. The plaintiffs had not sought advice from him about ATD and did not rely on him for any advice in that regard.

The essence of this wrongful birth claim lay in the question of causation, i.e. whether the plaintiffs, if properly advised, would have gone on to have the child. Judge Hislop concluded on the evidence before it that they would have done:

it is probable that most reasonable people, when faced with the prospect of at least some years delay before appropriate tests may have become available, the understandable desire to father ones own children, the higher risk of hereditary problems associated with donor sperm in 1999, the relatively small risk of any significant symptoms arising from ATD particularly when there is the opportunity for early detection and appropriate management of the condition, would have elected to proceed with the pregnancy as planned.

Furthermore, the expert evidence was that the condition was ‘at most was a minor contributing factor and was possibly irrelevant to the outcome’, and therefore the Court ruled that the Wallers could not prove that Keeden’s ATD had caused the stroke.  Since the harm for which recovery was sought was not reasonably foreseeable, namely the consequences of the stroke, the plaintiffs had failed to establish liability on the part of the defendant. The Court accordingly gave judgment for the defendant.

Comment

Would the outcome of this case have been different, had genetic testing for this disorder been available at the time? A recent wrongful birth claim, also involving an inherited blood disorder, was considered by the Court of Appeal in this country. In Farraj and another v King’s Healthcare Trust and others both parent plaintiffs were carriers of a gene which could cause beta thalassaemia major, a life-threatening blood disease. When the wife was pregnant she was advised to undergo DNA testing to detect whether the child would suffer from the disorder. The test turned out to be negative, but the child was born with BTM. It was alleged that the trust had failed to diagnose the condition during pregnancy, and that the pregnancy would have been terminated had such a diagnosis been given. This case is distinguishable from the Australian one because it did not involve IVF and the hospital was not treating the plaintiff, merely processing the diagnostic test, and the laboratory which had provided the misleading result was found by the Court of Appeal to be 100 per cent liable.   But the interesting question is what the outcome might have been had the chain of causation not been broken by the laboratory’s negligence, and the hospital was responsible for treating the plaintiffs and carrying out the requisite diagnostic tests.

In another wrongful birth case involving a disabled child (Rees v Darlington Memorial Hospital NHS Trust [2004] 1 A.C. 309) there was a suggestion by Lord Scott that a distinction might be drawn between a case where the avoidance of a child with a disability is the very reason why the parents sought treatment and the case where medical treatment (e.g. sterilisation) is sought merely to avoid having to use contraception. His suggestion was that damages should be available only in the former situation. Clearly Farraj falls within this category; as Sedley LJ acknowledged, there might well have been a legitimate complaint by the Farraj parents had they not gone to a private laboratory to have the sample cultured. So an intriguing extension to this line of thought is the hospital’s liability where parents are undergoing IVF.  Not only is there an implied requirement in such circumstances by the parents to avoid the risk of genetic disease, but the opportunity to take steps against hereditary disorders are much greater where there are a number of embryos to choose from. And as the availability and accuracy of genetic tests continue to improve, will it mean that hospitals providing routine antenatal care for mothers will come under a duty of care to provide information and advice that is breached in the case of hereditary disorders breaking through? It may be that the whole contentious landscape of wrongful birth – and even wrongful life – claims may have to be revisited.

The 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• Equal marriage on the way as Bill published 
• Allowing religious gay marriages will avoid human rights challenges
• The conservative case for gay marriage
• Will the European Court force churches to perform gay marriages?

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.

In the News

Europe and the Powers of Parliament

Europe, in the human rights world, often means Strasbourg (where the European Court of Human Rights sits). But the EU, too, is not to be forgotten.  Dr Iyiola Solanke on Eutopia Law questions the legality of the government’s immigrations proposals under EU law: specifically requirements on landlords to undertake immigration status checks on tenants, including those from within the EU.  Dr Solanke also contrasts the proposals that foreign offenders be deported unless in exceptional circumstances, with the exceptional notion of deportation under EU law, with it being viewed by the CJEU as a derogation from free movement rules.

Dr Mark Elliott has also picked up the EU theme, in the context of a bill to enshrine a referendum on membership in statute.  He notes that were such a bill even to become law, there would be nothing preventing a 2015 Parliament from repealing it, aside from the political and popular mood at the time.  Parliament may not constitutionally be able to bind itself, but is it time to codify its privileges in statute?  That’s the question Nat le Roux asks at the Constitution Society.  He observes the ability of codification to empower Select Committees in dealing with recalcitrant witnesses, as well as give formality to the current “uneasy truce” between the Palace of Westminster and the courts.

The mainstay, however, of Europe-related human rights news pertains to Strasbourg; and in the fourth of a series of posts looking at the relationship between domestic law and the Convention, ObiterJ focuses specifically on mental health law.  He draws attention to BIHR’s new guide to mental health advocacy, and also provides a summary of key case law, statutes, and institutions (see also the Act for UK Rights post on this subject and Adam Wagner’s UKHRB post).

Prisoner votes – call for evidence

Speaking of Europe, the relationship between London and Strasbourg is perhaps most tense (especially if Abu Qatada is finally deported) than in the area of prisoner voting, and a new Joint Select Committee is currently calling for evidence on the draft Voting Eligibility (Prisoners) Bill.  As it stands, the proposal has three options for how the law ought to be:

1. Disqualifying prisoners sentenced to 4 years or more in prison from voting.

2. Disqualifying prisoners sentenced more than 6 months in prison from voting.

3. Disqualifying all prisoners serving custodial sentences from voting – a restatement of the existing ban.

Reform, Reform, Reform

Government proposals are often the target of scrutiny, and a number of potential reforms have come under the microscope recently, including on human rights grounds.  The first litigative challenge comes to the cut to housing benefit for those deemed to live in properties too large for their family (the ‘bedroom tax’).  This is being challenged by a number of disabled people and their families on the basis that the changes discriminate against them due to their need for more rooms to cope with their disability.

The Public Law Project has also published its draft response to the MoJ’s consultation on further legal aid reforms, focusing specifically on proposed changes to funding for judicial review.  Chief among its contentions is that the uncertainty in ascertaining the merit of claims at the outset in this area is greater than in others. Professor Richard Moorhead, meanwhile, opines that the proposal only to pay for judicial review applications if permission is granted, could “create more cost than it cuts”.  Moreover, the removal of ‘borderline cases’ and requirement that civil cases have a minimum 50% chance of success could cause firms to cut caseloads dramatically and kill off entire areas of work.

By contrast, Defence Secretary Philip Hammond has criticised the government for the amount of time spent debating same-sex marriage.  Yet if, as he suggests, this is an issue on which the government is ‘out of touch’ with the populace, of significant cause for concern is the gap between what jurors are allowed to do on the internet; and what they believe to be permissible.  Joshua Rozenberg points to research that suggests 16% of jurors wrongly believe they may not check their emails while on jury service; while 5% believe there are no restrictions at all on their internet use.

Assisted Suicide in Europe and at Home

Two important cases this week relating to the law of assisted suicide and the ‘right to die’: one at Strasbourg, and the other in the Court of Appeal.  The ECtHR litigation (Gross v Switzerland, see also Isabel McArdle’s UKHRB post) featured a Swiss claimant, who contested that the authorities’ refusal to provide a drug to end her life breached her Article 8 right to respect for private and family life.  The Court held that Swiss law in the area of assisted suicide is “not clear enough” and breached Article 8 in not providing sufficient clarity on when a lethal dose of a drug would be available on prescription.  It did not, however, adopt a position on whether the particular claimant should have been permitted a dose capable of ending her life.

Closer to home, One Crown Officer Row’s Philip Havers QC has been representing “Martin” in the domestic ‘right to die’ litigation that was linked to that of the late Tony Nicklinson, who passed away at the end of 2012.  In the conjoined appeal, the court has so far heard submissions that this is a matter for judicial enquiry, even in the face of a statutory position, and Lord Falconer’s private member’s bill on the matter.

An interesting take on this particular issue is provided by Paul Daly on the UK Constitutional Law Group Blog, taking as a starting point recent developments in Ireland and Canada.  The Irish High Court (in Fleming) has held that requiring the DPP to publish guidelines on when those assisting suicide would be prosecuted would contravene democratic principles.  By contrast, the Canadian Ménard report suggests using limits on prosecutorial guidelines essentially to permit assisted suicide in Quebec, while the practice is prohibited by federal criminal law.  Interestingly, this issue is likely to reach the Canadian Supreme Court again in the coming years.

Also in the News

• Torture Detainees: the High Court has held that the Home Office did not follow its own policy in releasing asylum detainees who could demonstrate they had been the victims of torture abroad.
• Conscientious Objection: the Scottish Court of Session has extended the ability to conscientiously object to participating in abortion procedures to roles in the “delegation, supervision and/or support” to other staff performing medical terminations.
• Case Comment, Faulkner: The UKSC Blog provides guidance that will constitute part of the basis of “confident” domestic case law on the remedial jurisdiction under s. 8 of the Human Rights Act.

In the Courts

• President of the Methodist Conference v Preston [2013] UKSC 29 – Supreme Court holds Church Minister not an employee for the purpose of the Employment Rights Act 1996, s 240.

• EO & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) - Important High Court decision on the policy exercised towards immigration detainees who claim they have been tortured. All five claims succeeded

• Azaroal, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1248 (Admin) - Continuing detention pending deportation of convicted violent burgler would be unlawful, rules High Court

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Legal Aid Changes | The Government’s Proposals on Legal Aid: The Client, the Lawyer and the Rule of Law – Town Hall Meeting
  London School of Economics Monday 20 May 2013, Sheikh Zayed Theatre, New Academic Building, 6.30 – 8.30 pm, Chair: Professor Conor Gearty LSE
• UCL & Bindmans Debate: International Human Rights Breaches
  State Accountability v State Immunity, UCL Faculty of Laws Events, Wednesday, June 19, 2013 at 6:00 PM (BST)
• Fairness: What does this mean in 2013? Middlesex. University, London
  Fairness: What does this mean in 2013? Middlesex University Conference, Tuesday, May 21, 2013 at 6:00 PM – Thursday, May 23, 2013 at 4:00 PM
• HRLC Summer School on the Rights of the Child
  24-28 June 2013, University of Nottingham, £1,000 or £750 with no accommodation
• UK Supreme Court Open Day Saturday 25 May 2013, 10:00-16:30
• Saving Civil Legal Aid and Judicial Review – Briefing Meeting for NGOs Tuesday 28 May 2013, 16:00-18:00, Law Society, 113 Chancery Lane
• How politics influences the constitution: time for new constitutional conventions? 10 June 2013, 17:00, Italian Cultural Institute, 39 Belgrave Square, London
• Barriers in International Law to Transnational Human Rights Litigation 11 June 2013, 18:00, BPP Law School Waterloo, 137 Stamford Street, London

UKHRB posts -

• Apocalypse soon? The UK without the European Convention on Human Rights – May 17, 2013 by Jim Duffy
• Barclay brothers question independence of Sark’s Seigneurs and Seneschals – May 17, 2013 by Rosalind English
• Will the new criminal legal aid reforms breach the right to a fair trial? – May 16, 2013 by Richard A. Edwards
• Strasbourg rules that excessive tax rates offend A1P1 – May 16, 2013 by David Hart QC
• New Guide to Mental Health Advocacy and Human Rights – May 15, 2013 by Adam Wagner
• Assisted dying in Switzerland: Unclear lethal drug prescribing guidelines breached human rights – May 15, 2013 by Isabel McArdle

Updated, 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.

Lord Dyson began by warning that human rights in this country are under attack, “not least from some members of the government” who he said had recently made “intemperate remarks”.  He described how calls for repeal of the Human Rights Act (HRA) or pulling out altogether from the European Convention system had been fuelled by a few high profile cases, not least that of Abu Qatada.  This was all said by some to be the fault of “those terrible judges in Strasbourg who have no common sense and don’t understand our culture and values.”

The event also coincided with the work of the Commission on a Bill of Rights, which reported in December 2012 on whether the UK should supplement or replace the human rights regime as embodied in the Convention and HRA with a separate Bill of Rights.

David Anderson QC

Update | David Anderson QC has kindly allowed us to post his excellent PowerPoint presentation which you will see at the bottom of this post (direct download here – PDF)

Anderson noted that the idea of a UK without Convention rights was no longer simply “an academic counterfactual.”  He made clear at the outset that he was strongly opposed to withdrawal from the ECHR or abrogation of the HRA.  The latter option had been “sedulously debated for many years but considered to be without merit by almost everyone who had looked at it”.

Less consideration had been given to pulling out of the Convention altogether, and that option had expressly been excluded from the remit of the Bill of Rights Commission.  The “lazy counter-argument” to withdrawal would be that the UK would be forced to withdraw also from the European Union, but this, he said, was not a complete or sufficient response; indeed for some it may provide an incentive.

For Anderson, the HRA had proved “successful on all counts”.  Schedule 1 to the Act contains what is a conservative collection of mostly civil and political  rather than social and economic rights, and the Act does not even impose a general equality duty.  It has not – as was feared – politicised or over-exposed the judiciary; indeed Anderson could only think of one decision of the higher courts under the HRA that had caused particular controversy – the Supreme Court’s declaration of incompatibility under section 4 in R (on the application of F and Angus Aubrey Thompson) v Secretary of State for the Home Department [2010] UKSC 17 on the need for a procedure to have oneself removed from the Sex Offenders Register.

The Act has also had a salutary effect upon policy formulation and execution and has encouraged judicial dialogue between our own courts and Strasbourg.  That dialogue could be seen in cases such as Al-Khawaja. The HRA has meant that we frequently have our own judges applying the provisions of the Convention, and we believe that they are as good as the Strasbourg judges and – as the European Court often comments – better placed to understand the situation on the ground.

Anderson commented on the Conservative-led majority report of the Bill of Rights Commission.  It stressed that the Bill should have “at its core” the rights currently in the ECHR, in addition to a free standing anti-discrimination provision and a right to trial by jury.  That, he said, was “not such a frightening prospect.”  The main concern of the majority was in fact presentational – that the Bill be written in language that reflected the UK’s culture and values.

In defending the continuing role of the Convention in UK law, some might feel it is enough to say that the European Court’s rulings are better than those of the Supreme Court.  That, Anderson said, was unlikely to command general assent.  The better argument was an international one, that governments in Russia, Ukraine, Georgia and Turkey currently wish to at least be seen to establish Convention-compliant systems, and the Abu Qatada case shows how standards laid down in Europe can be influential elsewhere.  A UK withdrawal would have a damaging effect upon the approaches of foreign states to human rights.

Judge Sajó

Judge Sajó made clear that he was speaking in his capacity as a professor at the Central European University in Budapest, and not on behalf of the European Court.

He stressed that even where European judges disagree with their British counterparts, they do so on the basis of respect and as part of what he described as “a very complex interaction.”  He commented that Winston Churchill understood the emerging human rights system post-World War II as one in which countries were at risk when left on their own.  By pulling out of the Convention, Judge Sajó predicted that Britain may lose its moral and political influence.

He commented on recent cases involving the deportation of foreign criminals and drew parallels between the reactions to such cases in the UK and in other states, such as Switzerland.  Certain political groups, he said, believe that judgments in deportation cases threaten state sovereignty, even though in reality the minor crimes that they often involve do not actually raise any truly sensitive political or moral issues.

Sajó explained how in certain cases, whilst a state that finds itself on the end of an adverse Strasbourg judgment might not implement changes in national law, the Court’s findings can still lend vital support to forces within that state.   He gave the example of Lithuania, which has so far refused to recognise transgender rights despite a defeat in Strasbourg.   In a context in which the UK had its own adverse judgments and then changed the law to recognise transgender rights, the transgender community in Lithuania could draw some support from what the European Court had told their government.  If the UK pulls out of the Convention, Judge Sajó said, “the moral support given to such forces will become irrelevant.”

As for criticisms of the European Court’s inefficiency and its backlog of cases (128,100 according to the Court’s 2012 Annual Report), Sajó pointed out that contracting states had not increased the Court’s budget for seven or eight years. Meanwhile its caseload had quadrupled.  From this he concluded, “European states do not wish to have a more efficient system”.

Professor Corder

Speaking from a South African perspective, uppermost in Professor Corder’s mind was a concern for maintaining and strengthening of the rule of law.  The wickedness of past imperial and apartheid regimes had instilled in most of the population of his country a determination that the unbridled exercise of state power should not be tolerated.  But “memories fade”, he said, and one is left to rely upon legal instruments and their impartial and consistent application through the courts.

Professor Corder described how the Constitution of South Africa (which he helped draft) enshrines the role of international law in a number of ways.  It provides at section 232, for example, that customary international law is South African law unless inconsistent with an act of parliament.  Most importantly, section 233 provides that, when interpreting any legislation, a court “must” prefer any reasonable interpretation that is consistent with international law over an inconsistent one.  This provision was influential in setting aside the death penalty and corporal punishment in the post-1994 era.

Corder pointed to developments within the Southern African Development Community (SADEC), whereby Zimbabwe had tried to evade a judgment of SADEC’s tribunal that declared unlawful the government’s attempts to take private property into state hands.  Its attempts to undermine SADEC should give pause to those who argue for UK withdrawal from the European Convention.  Withdrawal by one member may encourage less compliant member states with more to hide to do the same.  This, he said, would work to the disadvantage of citizens, visitors and to the overall level of human rights protection regionally.

He also pointed to the broader international impact that UK withdrawal might have.  In many sub-Saharan countries, accession to international human rights treaties had resulted from hard-fought battles by civil rights leaders.  There remains a widespread perception that international instruments recognising, for example, gay rights are “un-African” and targeted at developing countries.  Professor Corder asked how much stronger those perceptions would be if the “imperial master” – a permanent member of the UN Security Council – withdrew from its own international human rights obligations.

Professor Corder commented briefly on Theresa May’s March 2013 speech in which she said:

“We need to stop human rights legislation interfering with our ability to fight crime and control immigration.”

The close juxtaposition of “fighting crime” and “controlling immigration” would, Corder said, excite in South Africa the sort of reaction that he imagines it did in the UK.

Conclusion

This was a thoughtful and at times passionate defence of the HRA and the UK’s continued role within the Convention system.  At the same time, it was noted that the speakers were to a large extent preaching to the converted – only one contribution from the floor suggested that Convention withdrawal might be a good thing on the basis that the UK might come up with something “better”.

Many in the audience were interested to hear how a positive case could be made to a reactionary public disillusioned with what The Daily Mail recently described as a “Charter for killing grannies”. Lord Dyson thanked the speakers for prompting us to think about the effect repeal of the HRA or withdrawal from the Convention would have beyond these shores.  But it was pointed out from the floor that many of the opponents to the present legal framework may be unlikely to view a possible impact upon the lives of those abroad as a compelling argument for retaining the status quo in UK law.

However, as Professor Corder pointed out, “powerful groups can become marginalised”.  Some might not value a strong human rights framework until they themselves have to seek to rely upon one. The challenge for those who argue that the HRA and Convention ought to remain central to UK law is to convey such messages during a debate which – in the words of the Commission on a Bill of Rights – has  too often been characterised by “stereotypes and caricatures.”

For David Anderson QC,  ”there has been no better or more necessary time to make that case”.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

• What would happen if the UK withdrew from the European Court of Human Rights?
• Setting a trap for the European Court of Human Rights over foreign criminals
• A human rights reality check for the Home Secretary – Dr Mark Elliott

R (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. 

This time they sought judicial review of the Order in Council approving the new provisions under the Reform (Sark) (Amendment) (No.2) Law 2010, which had been brought in in response to the 2009 case. The claimants submitted that the provision altering the Seneschal’s terms of office was not compatible with Article 6 in that it resulted in the Seneschal not having the requisite degree of impartiality and independence.  They contended, in essence, that the proposed law contained none of the guarantees to prevent the Seigneur (the hereditary Lord of Sark) appointing anyone he chose to the Appointments Committee as no qualifications for appointment were set out. He could therefore appoint persons who would act on his bidding. The sole check on the power of the Appointments Committee was the requirement for approval by the Lieutenant Governor, but that was no more than a formality.

The application was granted, but only in relation to the manner in which the Seneschal’s remuneration could be altered.

The Court’s Reasoning

The President of the Queen’s Bench Division, giving judgment, observed that the method of judicial appointment was central to establishing and maintaining an institutionally independent judiciary that was also seen to be such.  But highly formal requirements for establishing the committee and appointing the latest Seneschal were unnecessary in such a small community:

 It must be recalled that Sark is a community of 600 people. It is not in our judgment necessary to have all the formal procedures and requirements that would plainly be necessary in the more usual jurisdiction: see for example the type of system set out in the Council of Europe’s Recommendation 2010 (12). Provided that those appointing were in fact qualified to perform the functions of appointing the Seneschal and were independent, then that was sufficient for the appointment that has been made.

The requirement for the Lieutenant Governor’s approval of the appointment was not a mere formality. He was under an express obligation which included a requirement to satisfy himself that the committee concerned was properly qualified and independent, and that the proposed Seneschal had the experience and capacity to satisfy the Article requirements when exercising the jurisdiction of the judge of Sark.

Nor was there any failing in the procedure for removing the Seneschal. Just as in the case of the appointments system for the Seneschal, it had to be borne in mind that setting out a detailed procedure with independent checks and balances may not be required in the small community of Sark. The Seneschal could only be removed in a way compliant with Article 6 because it had to be by direction of the Lieutenant Governor, who was independent of the relevant Legislative and Executive powers. The failure to specify such a process in the legislation could not give rise to any objectively based fears of a risk of the Seneschal being influenced by any improper attempt to remove him. There was equally no objection to the provisions for re-appointment.

There was, however, a problem with the unfettered power of the Chief Please to reduce the Seneschal’s remuneration. An essential component of judicial independence was legal protection against arbitrary reduction in a judge’s pay.  The Seneschal had to be perceived to be under no influence from the majority in the community, and the fact that the Chief Pleas acquired that power by amending the legislation, thereby removing the Lieutenant Governor’s role, was highly significant to the perception of the risk of an arbitrary exercise of power. Therefore the provision enabling the alteration of the Seneschal’s terms of office, including his remuneration, did constitute a violation of Article 6.

A declaration was therefore granted that the committee’s decision recommending approval of the provisions of the 2010 Law was unlawful because in respect of the Seneschal’s remuneration, the Law was incompatible with Article 6. This incompatibility could be cured by an appropriate amendment to the Law to restore to the Lieutenant Governor an effective power over remuneration.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

One 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?

This is an interesting and important question. Article 6(3)(c) articulates one of the minimum fair trial rights as the right  trial fairness thus: ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.’

This is known as the right to a defence. Read literally, in English at least, the right of defence contains a right to defend yourself in person or via an appointed lawyer; but if you are indigent and it is in the interests of justice, then a lawyer is to be provided free. The indigent have no choice of lawyer. There is some case law that supports this interpretation.

In Freixas v Spain [2000] ECHR 53590/99 the European Court, ruling on the admissibility of an application, observed that ‘Article 6(3)(c) does not guarantee the right to choose an official defence counsel who is appointed by the court, nor does it guarantee a right to be consulted with regard to the choice of an official defence counsel.’ This point was also made, if somewhat more eloquently, by Mosk J of the Supreme Court of California: ‘While it might be desirable to recognize [the right to choose legal aid counsel] as an abstract principle, its application in the real world of criminal courts procedure is fraught with complications … Many a defendant charged with a commonplace violation, in the dreary solitude of his jail cell, contemplates his case as a cause celebre deserving representation by a Clarence Darrow or a Jerry Geisler.’ (Drumgo v The People (1973) 106 Cal. Rptr. 631, 940.)

However, that may not be the end of the matter, for the European Court has not been entirely consistent here. In full judgments, as opposed to admissibility decisions, the European Court has taken a different view. In Pakelli v Germany [1983] ECHR 8398/78 the European Court discussed the text of Article 6(3)(c). (Pakelli was not cited in Freixas). Crucially the European Court noted that there are important differences between the English and French versions of the ECHR:

31. Article 6(3)(c) guarantees three rights to a person charged with a criminal offence: to defend himself in person, to defend himself through legal assistance of his own choosing and, on certain conditions, to be given legal assistance free. To link the corresponding phrases together, the English text employs on each occasion the disjunctive “or”; the French text, on the other hand, utilises the equivalent – “ou” – only between the phrases enouncing the first and the second right; thereafter, it uses the conjunctive “et”. The “travaux préparatoires” contain hardly any explanation of this linguistic difference. They reveal solely that in the course of a final examination of the draft Convention, on the eve of its signature, a Committee of Experts made “a certain number of formal corrections and corrections of translation”, including the replacement of “and” by “or” in the English version of Article 6(3)(c) (Collected Edition of the “Travaux préparatoires”, vol. IV, p. 1010). Having regard to the object and purpose of this paragraph, which is designed to ensure effective protection of the rights of the defence, the French text here provides more reliable guidance.

Therefore, according to the French text the accused would have a choice in his legal aid counsel. In Croissant v Germany [1990] [1992] ECHR 13611/88 the European Court refined this view:

29 … It is true that Article 6(3)(c) entitles “everyone charged with a criminal offence” to be defended by counsel of his own choosing (see Pakelli v Germany). Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them.

Croissant is interesting for two reasons. First, the European Court recognised the importance of the lawyer-client relationship to the right to a defence. And second, the right to a defence funded by legal aid is subject to limitations. A balancing exercise is necessary.  On the one hand, in the context of legal aid a defendant cannot enjoy a carte blanc in the choice of their lawyer. The public purse is not unlimited. Yet on the other hand this does not preclude a choice albeit a limited one i.e. from a range of legal aid providers. Indeed, the European Court seems to recognise this in Pakelli and Croissant. In fact, a choice, even a limited one, is essential if a proper lawyer-client relationship is to be created and maintained. This relationship is the foundation of a defence that is practical and effective; not theoretical or illusory. (Artico v Italy [1980] ECHR 6694/74, para 33.)

The relationship between lawyer and client is crucial to the effectiveness of the right to a defence. The nature of the lawyer-client relationship was summarised by O’Connor JA in the Canadian case of R v McCallen [1999] O.J. No. 202. While of course this was a case considered under the Canadian Charter (The right to counsel – section 10(b)) the reasoning is nonetheless equally applicable to the relationship between lawyers and clients under Article 6 ECHR. It bears quoting in full:

34 … The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsel’s ethical constraints, in the clients’ best interests.

35 In addition, the relationship of counsel and client requires clients, typically, untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel’s loyalty and dedication to the client’s case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice.

36 The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.

37 In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

38 The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.

39 Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(b) right are of fundamental importance and must be vindicated when breached. (Emphasis added).

Thus it could be argued that the current regime for the provision of legal aid in criminal cases strikes an acceptable balance between the right of the accused to a defence of his choosing and the broader public interest maintaining an economically viable system of legal aid. However, if the Coalition removes the existing limited choice and replaces it with Hobson’s choice, then there is a good argument that the new legal aid regime would be incompatible with Article 6(3)(c).

Finally, we should also bear in mind that the requirement of fairness under Article 6 is constantly evolving (R v H [2004] UKHL 3, para 12 Lord Bingham). And ‘what the public was content to accept many years ago is not necessarily acceptable in the world of today … the indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago.’ (Lawal v Northern Spirit Ltd [2004] UKHL 35, para 22 Lord Steyn). Fifty years ago the provision of free legal assistance without a choice would have no doubt struck many as both generous and fair. Today, however, this may not be the case.

This post is by Richard A. Edwards, Associate Head of the Law Department and Principal Lecturer in Law at UWE, Bristol. It first appeared on the Euro Rights Blog and is reproduced here with permission and thanks.

As with previous consultations, we will be collating responses for a summary post so please send us yours (to email click here).

Related posts

• More major rule of law changes, more dodgy statistics used to justify them
• Government pressing ahead with (most of) its proposals to restrict access to judicial review – Mark Elliott
• Denounce the ECHR to deport Abu Qatada… You cannot be serious! – Richard A. Edwards

Sign up to free human rights updates by email, Facebook, Twitter or RSS

N.K.M v. Hungary, ECtHR, 14 May 2013, read judgment

Those of a certain age will remember when top tax rates in the UK were 98%. This was the marginal rate of tax in this successful claim that such taxation offended Article 1 of the 1st Protocol (A1P1) – the peaceful enjoyment of possessions. But the very wealthy seeking to safeguard their bankers bonuses may not obtain too much comfort from the Strasbourg ruling, as the facts were fairly extraordinary.

The applicant had been a Hungarian civil servant for 30 years until her dismissal (with many others) in July 2011. Long-standing rules gave her 8 months severance pay. The 98% tax rate was introduced in 2010; it was then successfully challenged in the Hungarian Constitutional Court. On the day of the Court’s adverse judgment, the tax was re-enacted, but this time the 98% rate was applied to pay exceeding 3.5m forints – c. £10,000 – and, further, only where the earnings came out of specified categories of public sector employees.

A fresh challenge in the Constitutional Court annulled the retrospective effect of this law, but could not as a matter of jurisdiction review the substantive aspects of the tax. So the applicant went to Strasbourg to challenge the tax when deducted from her pay.

Interference with possessions

The parties agreed that the tax (even though deducted at source) did amount to an interference with the applicant’s possessions.  However, the Court wished to analyse this issue, and did so in terms of some importance. It attached significance to the fact that the tax related to severance pay.

In the case of a civil servant, who comes under a specific legal regime and who willingly accepted limitations on some of his fundamental rights and a remuneration unilaterally dictated by law…. the statutorily stipulated severance represents a long-term expectation on the side of the civil servant and a commitment on the side of the State as employer. For the Court, such long-term expectations, reinforced by many years of unchanged statutory guarantees, cannot be lightly disregarded.

- words which may be carefully scrutinised by the judges in this country smarting under the unilateral changes in their pension arrangements: see here, and [41] of this judgment on pension entitlements.

Severance pay was not simply a pecuniary asset – it must be seen

as a socially important measure intended for workers who have been made redundant and who wish to remain in the labour market

relying, interestingly on the EU Charter and case law to that effect: [20]-[21], [70].

Lawfulness of the interference

The question was whether the interference was prescribed by law and pursued the legitimate aims of satisfying society’s sense of justice and of protecting the public purse. In response to the applicant relying upon EU statements about the importance of severance pay, Hungary argued that the measure was justified by reference to EU rules about excessive severance pay – but the £10,000 point at which the 98% tax rate cut in was hardly in the bankers bonuses bracket.

The Court pointed out that the taxation had certain retroactive features about it – it applied to work which had been done prior to the coming into force of the legislation. It noted the conclusions of the first Constitutional Court, but concluded ultimately that the Act provided a proper legal basis for the measure.

Legitimate aim and proportionality

But a state has to do more than just show a legal basis for a measure. Although a little sceptical, the Court was satisfied that the measure carried a legitimate aim (protection of the public purse).

The real issue, as ever, was proportionality.

The Court noted that tax rates exceeding 50% had been found recently to be unconstitutional in Germany and France, though marginal rates of 75% were levied elsewhere – albeit starting at levels which clearly exceeded those at issue in Hungary. It also took Hungary’s point that the overall tax burden applicable to the severance pay (as opposed to that applicable to the top slice) was 52%. But even this tax was about 3 times the general personal income tax applicable in Hungary.

The Court ultimately thought that the applicant and the civil servants dismissed with her were bearing an excessive and disproportionate burden. Nor did the legislature afford any transitional period to the applicant to enable her to adjust to the new scheme. The tax was enacted 10 weeks before her dismissal.

This burden

is all the more evident when considering the fact that the measure targeted only a certain group of individuals, who were apparently singled out by the public administration in its capacity as employer. Assuming that the impugned measure served the interest of the State budget at a time of economic hardship, the Court notes that the majority of citizens were not obliged to contribute, to a comparable extent, to the public burden. [72]

As I have said, the Court accepted (just about) that the measure was meant to serve social justice. But that could not justify its precise terms:

It…. deprived her of the larger part of a statutorily guaranteed, acquired right serving the special social interest of reintegration. In the Court’s opinion, those who act in good faith on the basis of law should not be frustrated in their statute-based expectations without specific and compelling reasons. [75]

So the measure was not reasonably proportionate to the aim sought to be realised. The Court found for the applicant and awarded her just satisfaction of €11,000, as ever without showing how it had arrived at that sum.

Comment

One can readily see the gross unfairness of this measure. Belts have to be tightened. So you, the state, sack a tranche of civil servants and then tax them onerously so that you don’t have to pay them the severance pay to which they would have otherwise become entitled. And gross unfairness can, often, underpin a successful case in Strasbourg, even though its subject matter would otherwise seem to fall plumb within the wide socio-economic area where that Court treads warily.

At root, the case is about discrimination. And indeed the applicant did run the case that there had been discrimination between her position as a sub-category of civil servants and taxpayers generally which was in breach of Article 14 of the Convention. The Court simply found that the inequality of treatment had been taken account of  in the A1P1 violation, and therefore it was unnecessary to make a separate finding on this score.

Perhaps a more explicit finding of discrimination might have better confined this decision to its facts – there was ultimately no reason why the civil servants should have borne more of the burden than the rest, other than doubtless some nice populist headlines in the papers. Because, as it stands, I can see the judgment being much cited in rather less deserving cases – that can be the problem with A1P1 findings. Anyway, well worth a read.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

• Supreme Court finds A1P1 breach in retrospective legislation
• The right of property under A1P1 – Supreme Court sees that it has teeth
• Successful A1P! claim in construction legislation – lessons for us all
• Last tango of the fag packet machine
• Insurers’ right not to pay damages for putting asbestos into insured’s lungs
• European Court of Human Rights defers to traditional UK common law

A quick post to draw your attention to the British Institute of Human Rights’ excellent  new publication, Mental Health Advocacy and Human Rights: Your Guide (PDF).

The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:

This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems.  This guide has been produced with Mind Brighton and Hove, Wish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.

Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

GROSS v. SWITZERLAND – 67810/10 – Chamber Judgment [2013] ECHR 429 – Read judgment / press summary

The European Court of Human Rights has ruled that Swiss guidelines for doctors prescribing lethal drugs were too unclear and therefore breached article 8 ECHR, the right to private and family life. Ms Gross sought a prescription for a lethal drug to end her own life. She has no critical illness, but is elderly and feels that her quality of life is so low that she would like to commit suicide. The Swiss medical authorities refused to provide her with the prescription.

Assisted dying and the right to die have been firmly back in the spotlight this week, with the cases of Lamb and “Martin” going to the English and Wales Court of Appeal. Mr Lamb is taking up the point made by Tony Nicklinson in the High Court, before his death, that doctors should have a defence of necessity to murder charges in cases of assisted suicide. Mr Nicklinson’s widow, Jane, is continuing his fight too. The cases also challenge the current guidelines on when prosecution should be brought for assisting suicide. You can read more about the background to the right to die caselaw here.

Under Swiss law, a person can be subject to criminal punishment for inciting or assisting suicide only when motivated by “selfish motives”. In considering doctors’ actions, the Swiss courts had referred to the Swiss Academy of Medical Sciences’ guidelines.

The Swiss court rejected her challenge to the medical authorities’ refusal, on the grounds that there was no obligation on a state to supply a person with a lethal drug for the purpose of committing suicide and the guidelines laid down by the Swiss Academy of Medical Sciences for supplying drugs for this purpose were not fulfilled by Ms Gross, as she had no terminal illness.

The European Challenge

She challenged the position by arguing that her Article 8 rights (right to respect for family and private life) were violated, in that she was denied the opportunity to choose by what means and when her life should end.

The Decision

Unsurprisingly, given previous caselaw on assisted dying, the ECtHR considered that Ms Gross’ Article 8 rights were engaged by these facts.

The ECtHR discussed the guidelines which doctors followed when assessing whether to prescribe lethal doses of drugs for the purpose of suicide. However, they did not have the formal quality of law (they were made by a non-legislative body) and Ms Gross fell outside them, as she was not suffering an illness which would lead to death in a matter of days or weeks.

There were no other guidelines assisting doctors in making decisions in cases where patients asked to be prescribed such drugs, but where they fell outside of the scope of the current guidelines.

This lack of guidelines in circumstances such as Ms Gross’ was likely to deter doctors from prescribing drugs, where the doctors would otherwise have been likely to prescribe them. The uncertainty of this situation, bearing in mind how important the request for assistance was to Ms Gross, was likely to have caused her considerable anguish.

Article 8 was violated by the lack of guidelines covering cases such as Ms Gross’ situation, where the person requesting the drugs was not suffering a terminal illness of the type which satisfied the criteria for the existing guidelines. This was the case, even though Swiss law created the possibility for doctors to prescribe lethal doses of drugs.

At paragraph 66 the ECtHR noted:

The Court concludes that the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition. The Court acknowledges that there may be difficulties in finding the necessary political consensus on such controversial questions with a profound ethical and moral impact. However, these difficulties are inherent in any democratic process and cannot absolve the authorities from fulfilling their task therein.

Comment

The ECtHR did not take a view on whether the prescription should actually be given to Ms Gross, as this would infringe upon the Swiss state’s rights to define the circumstances when it allowed or did not allow assistance of this type in suicide. This is not surprising: in areas where there is particular cultural and ethical sensitivity, the ECtHR leaves a wide margin of appreciation to the state to consider how to define its position on the issue at heart.

However, this is another decision where it can be seen that the ECtHR has helped those wishing to end their own lives to know their rights. Perhaps more importantly, by requiring clarification of the guidelines which doctors wishing to assist people like Ms Gross are to follow, the deterrent effect hanging over those doctors (of the possibility of their decisions being challenged in court and the subject of criminal proceedings) is lifted, provided they comply with the guidelines applying to the situation. In practice, this is likely to mean more doctors are willing to help, and consequently, more people wishing to end their own lives are able to do so.

What impact does this have on the ongoing UK cases? Clearly, the legislative background is very different: Swiss law is much more liberal in relation to assisted dying and assisted suicide. However, the cases in the Court of Appeal this week do involve issues surrounding guidelines (in this case guidelines on whether the Crown Prosecution Service should prosecute those suspected of assisting others to commit suicide) and the question of whether such guidance is clear enough in certain circumstances.

Although the guidelines in Gross v Switzerland are of a different nature and set against a different legislative backdrop, the case at least goes to show the importance the ECtHR places on allowing those contemplating suicide with assistance, or contemplating assisting suicide, to predict the likely legal consequences of their actions.

Read more:

• “No precedent? Then set one”" Nicklinson right to die case
• BC Supreme Court grasps the nettle in right to die case
• No right to die without a “Living Will”

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome 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.

In the News

A Right to Family and Private Life

It was announced this week in the Queen’s speech that Article 8 ECHR, (the right to private and family life), would be limited in the Immigration Bill. The Bill will ‘contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules.’

Mark Elliot, over at Public Law, states how at face value the new Act would ‘load the dice’ (as Adam Wagner has also said) to prioritise deportation over an individual’s right to private and family life. The effect would be that the new Act will ‘legalise, as a matter of UK law, ECHR incompatible deportations’. Therefore, the only recourse available for national courts would be to issue a declaration of incompatibility. This, however, would not invalidate the Act and Elliot wonders whether such a move would lead to an intentional confrontation with Strasbourg.

Adam Wagner has also written about the move over at the New Statesman.

Right to die

As the BBC reports, the Court of Appeal is this week (starting today) hearing appeals by two severely disabled men who are trying to change laws governing the right to die. Our coverage of the decision being appealed is here. You can read more about Paul Lamb, who has taken over Tony Nicklinson’s case (effectively) since he sadly passed away, here. He is pictured above.

Right to life

Meanwhile, Obiter J examines the case law behind the right to life (ECHR Article 2). Examining the effect of key cases such as Mcann and Others v UK (1996), Osman v UK (2000) etc, he then addresses the issue of all the anti Human rights rhetoric in the media with a quotation from Lady Hale in defence of a right to life.

Anti-Human Rights

Indeed, this week there have been a number of articles challenging the current law on human rights, some  more scaremongering than others.

The Daily Mail states that human rights can put children at risk. Focusing on how sex offenders are now allowed to appeal against staying on the register for life, the article asserts that such a decision puts the rights of criminals above those of potential victims and calls for a reform of the law.

The Mirror reports how ‘two foreign thugs jailed for rioting have been allowed to stay in the UK because of their “right to family life” ‘.  Conservative MP Dominic Raab says: ‘These cases warp the moral balance of British justice, endanger the public and make human rights sound like dirty words to many.’

Over at the Guardian, the father of Amy Houston discusses how his daughter’s case has been used as ‘an example of all that is wrong with the Human Rights Act.’ In 2003, Amy was knocked down and killed by an Iraqi Kurd and the resulting aftermath was dealt with, in what some see, as Home Office administrative incompetence. Whilst Mr Houston is in support of the Human Rights Act, he asks that ‘the Home Office apply its own policies correctly – not use human rights to mask its own failings.’

Grayling v Legal Aid

Sadiq Khan MP, Shadow Lord Chancellor and Justice Secretary, continues the vociferous discussion on the reforms that are to be made to the Criminal Justice System. He explains that such reforms will force people to accept the representation they are given, regardless of quality, and that ‘ignoring the quality of representation is a mistake as it may lead to increased pressure to plead guilty – regardless of whether the individual committed the crime – creating a system of state sponsored miscarriages of justice.’

Relatedly, Richard Edwards asks whether restricting choice of lawyers for defendants in criminal cases may breach Article 6 ECHR, the right to a fair trial.

If you are interested in these issues, please take not of this event, which is free but pre-registration is possible here: Legal Aid Changes | The Government’s Proposals on Legal Aid: The Client, the Lawyer and the Rule of Law – Town Hall Meeting, London School of Economics Monday 20 May 2013, Sheikh Zayed Theatre, New Academic Building, 6.30 – 8.30 pm, Chair: Professor Conor Gearty LSE

Grayling v Judicial Review

Joshua Rozenberg, writing for the Law Gazette, expresses concern over Chris Grayling’s announcement of reforms to judicial review that will ‘target the weak, frivolous and unmeritorious cases which congest the courts and cause delay’. He notes that the courts are already taking steps to deal more efficiently with applications for judicial review but that the Justice Secretary’s plans will still go ahead. Whilst there will be no change in the substantive law, we will be left with ‘unnecessarily tight initial time limits for a handful of planning cases with unintended consequences that the judges will have to sort out’ and ‘no oral hearings in hopeless cases and financial disincentives in weak cases.’

The Political Neutrality of Prince Charles

The Court heard this week that the Attorney General, Dominic Grieve, got the law wrong when he overruled judges who ordered the government to publish letters Prince Charles wrote to ministers. In his defence, Mr Grieve has stated that if such letters were published it would affect the Prince’s political neutrality and his preparation for kingship. Judgment has not yet been passed.

Abu Qatada

It seems that Abu Qatada, a regular on this blog, would return to Jordan voluntarily if the country ratified a treaty drawn up with the UK Government. Theresa May has stated that the treaty (which deals with the use of evidence obtained by torture) would allow Qatada to face a fair trial in Jordan. Robin Tam QC, representing the home secretary, stated that ‘the treaty would be laid before the Jordanian parliament within the next few weeks, and the UK side of the process should be finished by late June.’

Jack of Kent has compiled a resources page on the whole Abu Qatada saga, which includes key legislation and a timeline.

Adam Wagner was interviewed on the BBC News on Friday – you can watch the interview below.

 In other news…

• The Constitution Society has released a paper entitled, ‘ Parliamentary Privilege: Evolution or codification’ which can be read here.
• The Home Secretary announced this week a judge led panel to consider the murder of Daniel Morgan who died in 1987. His family have campaigned for 25 years for there to be an appropriate independent inquiry.
•  Liz Fisher examines the new www.gov.uk website, criticising its lack of transparency, and discusses how a website will need to evolve with a change in government.
•  The House of Commons library has published UK cases at the European Court of human rights since 1975.
•  The Guardian delves into the archives and has re-published a 1978 article reporting on the Liberals plans to adopt the European Convention on Human rights as Britain’s own Bill of Rights.

Case Comments

Ramsay Hall looks at the case of White and Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd. Hall discusses how the case ‘sets a precedent for A1P1 challenges to adjudicator awards, particularly in cases where the losses claimed are not immediate. ‘

In the Courts

• Judgment Shindler v. the United Kingdom – right to vote of British national living abroadMay 7, 2013
  European Court of Human Rights rules UK ban on ex-pats of over 15 yrs from voting compatible with human rights, specifically Article 3 of Protocol 1 (free and fair elections)
• Committal For Contempt Of Court (Practice Guidance) [2013] EWHC B4 (COP) (03 May 2013) May 6, 2013
  Lord Chief Justice confirms that contempt proceedings must be heard in public except in exceptional case, and in those cases the matters must still be publicly stated.

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Legal Aid Changes | The Government’s Proposals on Legal Aid: The Client, the Lawyer and the Rule of Law – Town Hall Meeting
  London School of Economics Monday 20 May 2013, Sheikh Zayed Theatre, New Academic Building, 6.30 – 8.30 pm, Chair: Professor Conor Gearty LSE
• UCL & Bindmans Debate: International Human Rights Breaches
  State Accountability v State Immunity, UCL Faculty of Laws Events, Wednesday, June 19, 2013 at 6:00 PM (BST)
• Fairness: What does this mean in 2013? Middlesex. University, London
  Fairness: What does this mean in 2013? Middlesex University Conference, Tuesday, May 21, 2013 at 6:00 PM – Thursday, May 23, 2013 at 4:00 PM
• Inaugural Lecture – Professor Neil Mitchell (International… – Eventbrite
  Tuesday, 7 May 2013 from 18:30 to 20:30 (BST) London, United Kingdom
• HRLC Summer School on the Rights of the Child
  24-28 June 2013, University of Nottingham, £1,000 or £750 with no accommodation

UKHRB posts -

• “Is the test for capacity to cohabit the same as the test for the capacity to marry?” - May 9th 2013 by Rosalind English
• The problem of “rebalancing” Article 8 – May 8th 2013 by Adam Wagner
• Who ‘holds’ the working papers of the Climategate enquiry? – May 7th 2013 by David Hart QC

PC (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. 

The first appellant and second appellants appealed against the Court of Protection’s decision.  The appeal was based on the following grounds:

i. The judge wrongly identified the issue for determination as being whether PC had capacity to ‘resume married life’, rather than by reference to the established domains of care, contact and residence. As a result the judge conflated the relevant issues;

ii. The judge failed to give proper weight to the fact that PC and NC had contracted a valid marriage in 2006 and there had been no relevant change in circumstances since that time to bring the validity of the marriage into question;

iii. In any event, the judge wrongly applied a person-specific, rather than an act-specific, test in determining capacity.

The Court of Appeal’s judgment

The appeal was upheld, but only in part. McFarlane LJ found that the appellants had failed to establish any justification for interfering with Hedley J’s finding of lack of capacity. However, the Court concluded that if PC had capacity to marry she must be taken to have capacity to decide to perform the terms of the marriage contract. Any finding to the contrary required clear and cogent evidence. Such evidence was lacking in the present case and the finding that PC was unable to make this decision had simply not open to the judge below.

The statutory test for capacity was “decision”-specific, rather than being “person”- or “act”-specific. Therefore, although the specific identity of any particular spouse was irrelevant to determining capacity to marry, the factual context of the proposed marriage had to be taken into consideration in order to produce a meaningful conclusion about capacity. In that respect, the judge below had taken a sound approach. Although there was clear and settled authority that capacity to marry was act-specific rather than person-specific, there was nothing in the key authority, Sheffield City Council v E [2004] EWHC 2808 (Fam),  to indicate that the test was to be either one or other of those approaches for all decisions; Sheffield, in fact, supported a decision-specific approach. Therefore, the reference in s.3(1)(a) to the ability to “understand the information relevant to the decision” had to include information which was specifically relevant to the particular wife and the particular husband.

The court’s jurisdiction was not founded upon professional concern about the outcome of an individual’s decision; it could only “protect” if mental capacity was lacking. The judge below had approached the statutory scheme as though s.2(1) and s.3(1) were separate tests, rather than affording central prominence to s.2(1). Finding, as he did, that PC had had capacity to marry, he needed to expressly state the evidential basis on which he found that she did not have capacity to understand the risks which her husband presented. The danger in his approach was that the strength of the  causative nexus between mental impairment and inability to decide had been “watered down”:

The danger in using s 2(1) simply to collect the mental health element is that the key words ‘because of’ in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: ‘referable to’ or ‘significantly relates to’.

If PC had capacity to marry, then in the absence of clear and cogent evidence to the contrary, she had to be taken as having capacity to decide to perform the terms of the marriage contract. The judge should also have spelt out how and why her mental impairment did not rob her of capacity in other aspects of her life, yet caused an inability for her to decide to live with her husband. He had not given the explanations required by s.2(1) and his decision had to be set aside. Lewison LJ observed, in his concurring judgment, that it was easy to understand the responsible professionals’ view that it would be “extremely unwise” for PC to cohabit with her husband,

but adult autonomy is such that people are free to make unwise decisions, provided that they have the capacity to decide.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

• related posts on mental health