Woman’s wish to donate unwanted embryos to scientific research rejected by Strasbourg Court

cdce0842e2fac4bcf0335ab5c367-is-embryonic-stem-cell-research-wrongParrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment

The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures. 

A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.

The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.

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Supreme Court on EU and ECHR proportionality – back to basics

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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Is it homophobic to turn away gay blood donors?

mike 0010

mike 0010

Léger (Judgment) [2015] EUECJ C-528/13 (29 April 2015) – read judgment

Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process.  Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.

This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.

Legal background

This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability. Continue reading

Government may weigh rights against national security without courts’ interference

Mujahedin-e-Khalq-OrganizatR (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2014] UKSC 60 – read judgment

The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).

At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.

The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment. Continue reading

Be wary of judicial slogans – Jonathan Sumption

SumptionIn his lecture to the Administrative Law Bar Association  earlier this month, Lord Sumption surveys the concept of “anxious scrutiny” – a judicial method which he characterises as a forerunner to the principle of proportionality. The term was actually coined by Lord Bridge in Bugdaycay (1986), and was meant to apply where the rights engaged in a case were sufficiently fundamental, and stretched the traditional “Wednesbury” test to public authority decisions or actions which were not, on the face of it, irrational. (The citation given in the PDF of the speech incidentally is incorrect). The same way of thinking had been arrived at in the US courts a few years earlier, with their “hard look” doctrine, but to Lord Sumption there was something peculiarly English about the “crab-like” way in which our courts approached and eventually acknowledged this doctrine, hitherto alien to the judicial toolbox.

But if we apply anxious scrutiny to the doctrine itself, Sumption suggests, it raises more questions than it answers. Continue reading

Letting in a chink of light to closed material cases : Bank Mellat again

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 –  read judgment UPDATED POST

Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.

Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it.  The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court:  see judgment. I  did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall. 

However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.

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Students without indefinite leave to remain are ineligible for student loans

loanimage0 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) – read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.

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