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Biologists are fond of using the analogy of Alice and the Red Queen to explain why, in the real world of parasites and defence immune systems, you have to run to keep still. In this post I will be looking at a similar problem in the legal world, where the rule of law paradigm is subject to competition between parliament and the judiciary. You have to keep running to keep abreast of whichever one has the flame. Who will prevail as anointed guardian of the rule of law? Does it matter, and is the race even real?
R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22.
In his analysis of the half century of argumentation on this point, Jonathan Metzer suggests that the question of who is actually in charge may be redolent of Alice in Wonderland. Anisminic replaced one confusion with another by merging errors of law and errors of jurisdiction. The effect of this ruling was, in Lord Sumption’s words,
to create what is nominally a power of review, but is in substance a right of appeal on points of law going to the merits.
For the facts and issues in this appeal, see Jonathan’s post Anisminic 2.0. David Hart QC’s post considers the Appeal Court ruling (which went the other way) here. In the paragraphs to follow I explore the dissent.
Pomphrey v Secretary of State for Health and Anor [2019] 4 WLUK 483 –— decision not yet on Bailii but available on Lawtel.
This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and the applicability of the famous decision of Chester v Afshar [2004] UKHL 41.
The Claimant advanced a range of arguments on breach of duty
against a number of individuals in respect of a failure to refer for earlier
surgery for symptoms of early onset cauda equina, all of which failed having
regard to a careful analysis of the factual and expert evidence.
The judge did, however, find that there was a breach of duty
in respect of the delay between seeing the consultant neurosurgeon on 14
December 2011 and the actual operation which took place on 24 January 2012. The
negligent period of delay was found to be 10 days.
That breach of duty opened the door to the Claimant running an argument based on Chester v Afshar and Crossman v. St George’s NHS Trust[2016] EWHC 2878 that the same dice rolled on another day would not have resulted in ‘snake eyes’; viz. an injury which was an accepted complication of the operation, estimated at around 5%. This being a case where the consultant in question accepted that the injury had been “inadvertent” and therefore not one that necessarily would have occurred.
R (Maguire) v HM’s Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin) – Read Judgment
A three-judge panel of the Divisional Court has re-affirmed that, in general, medical inquests do not engage the State’s positive obligations under Article 2 of the European Convention on Human Rights.
Jackie Maguire had Down’s Syndrome, moderate learning difficulties, and severely compromised cognitive and communication abilities. On 22nd February 2017, she tragically died from a perforated ulcer at the age of 52, having developed symptoms starting with a sore throat around one week previously. For around 20 years prior, she had been living in care, and at the time of her death, following a capacity assessment under sections 1 – 3 of the Mental Capacity Act 2005, her place had been maintained by Blackool City Council in a care home from where she was not allowed to leave without supervision.
By a narrow 4-3 majority, the Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review, despite a powerfully-drawn ‘ouster clause’ which sought to prevent the decisions of the Investigatory Powers Tribunal from being questioned by a court.
Lord Carnwarth, who delivered the majority judgement, noted the ‘obvious parallel’ with the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Turning to the ouster clause in the present case, he considered that ‘a more explicit formulation’ might have ousted the jurisdiction of the High Court to consider a challenge to a decision by the IPT, but that, such as it was, the clause was not sufficiently clear to do so.
Lord Carnwarth also stated that: ‘It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.’ Although it was not necessary to decide on the general lawfulness of ouster clauses, he saw ‘a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.’ Lord Lloyd-Jones, another of the Judges in the majority, remained neutral on this statement.
Lord Carnwarth’s ‘rule of law’ argument was echoed by Caroline Wilson Palow, Privacy International’s general counsel, and Simon Creighton, of Bhatt Murphy Solicitors, which acted for Privacy International. Megan Goulding, a lawyer at Liberty, which supported Privacy International, stated that the ouster clause was ‘not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.’
In contrast, Professor Richard Ekins, a Tutorial Fellow in constitutional law at Oxford University, has stated that the ruling ‘violated the sovereignty of parliament.’ Ekins credited the three dissenting judges for their willingness to ‘[give] effect to parliament’s authoritative choice’ to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services.
In the News
The foreign secretary, Jeremy Hunt, has appointed Rita French, formerly his principal private secretary, to a post as the UK’s first human rights ambassador. Hunt put the appointment implicitly in the context of Brexit, stating that ‘as the UK enters a new chapter in its history’ he will ensure human rights are not forgotten in the rush to secure desperately needed free trade deals. Shami Chakrabarti, shadow attorney general, made her skepticism clear: ‘Rita French’s task will be an uphill struggle in a party that has consistently campaigned to scrap human rights instruments and cosied up to every despot in the pursuit of trade.’
The appointment came shortly after Human Rights Watch published a 115-page report condemning the UK government for breaching its duty to protect citizens from hunger by pursuing ‘cruel and harmful policies’ with little regard for children living in poverty. While a government spokesperson dismissed the findings, school staff and food bank volunteers confirmed that the report tallied with their experiences.
On Wednesday, the defence secretary, Penny Mordaunt, announced ‘a statutory presumption against prosecution’ for alleged offences committed in the course of duty more than ten years ago, covering wars in Iraq and Afghanistan. Following the announcement, Mordaunt went further, stating that she would like to see the proposed exemption extended to period of the Troubles in Ireland. Mordaunt’s comments were quickly met with criticism from human rights groups, a string of Conservative MPs, Ireland’s deputy prime minister Simon Coveney, and Sinn Féinn’s deputy leader Michelle O’Neill. An editorial in The Independent argued that the move would set human rights back by decades, allowing ‘the UK [to] opt in and out of the ECHR, depending on whether it is at war,’ while Amnesty UK’s campaign manager for Northern Ireland argues that the move undermines victims’ ‘fundamental rights to justice.’
In Other News
Ukraine responded angrily after ministers of the Council of Europe voted overwhelmingly in favour of allowing Russia to ‘participate on an equal basis’ in the council’s committee of ministers and parliamentary assembly, five years after the country was stripped of its voting rights over the seizure of Crimea. Ukraine’s envoy to the Council stated that the decision was not ‘diplomacy’ but rather ‘a surrender’.
US President Donald Trump has outlined his ‘strongly pro-life’ views on abortion days after Alabama passed a law banning abortion in almost all cases. In a series of tweets, Mr Trump stated that he was against abortion except in cases of rape, incest or ‘protecting the life of the mother’. While Republicans eager to overturn the 1973 Roe v Wade ruling welcome the ban and Trump’s approbation of it, Democratic presidential candidate Elizabeth Warren characterised the prohibition as ‘dangerous and exceptionally cruel’, and Human Rights Watch described the legislation as ‘a shocking abdication of responsibility by Alabama law makers’.
In the Washington Times, Neil Bush called for the release of Marsha Lazareva, a prominent Russian businesswoman imprisoned in Kuwait since May 2018 after being found guilty of embezzling 17 million dinars from the Kuwaiti Port Authority. Her latest hearing has been delayed until 9 June, after the judge recused himself unexpectedly. The manner in which Lazareva was tried and sentenced has been criticised by a number of human rights groups and diplomatic figures, including the former US Representative Ed Royce. Louis Freeh, a former judge and Director of the FBI, expressed concern for Lazareva’s health and wellbeing, and called the refusal of the Kuwaiti authorities to release her on a $33 million cash bail something he had ‘never heard of’ in his years as a judge and advocate. Lord Carlile of Berriew QC, senior counsel for Lazareva, has said that the ‘expert auditor’ on whose testimony much of the evidence relied has since been charged with the forgery of the three documents on which he depended during the case.
In the Courts
R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21: The Supreme Court considered whether the revised benefit cap, introduced by the Welfare Reform and Work Act 2016, s8, to lone parents with children under two years old (i) unlawfully discriminates against parents and/or their children, contrary to ECHR Articles 14 and 8 and the UN Convention on the Rights of the Child Article 3, and/or (ii) is irrelevant. The court concluded, by a majority of 5-2, that the rule engaged ECHR Article 8, but could be justified because it was not manifestly without reasonable foundation. Lady Hale and Lord Kerr, dissenting, considered that a fair balance had not been struck.
Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818: The Court of Appeal dismissed an appeal for wrongful dismissal by a nursing sister employed by the Trust. The sister was a ‘committed Christian’ fired for breaching an undertaking not to have inappropriate religious discussion with patients. One of the patients who lodged a complain was told by Mrs Kuteh that if he prayed to God he would have a better chance of surviving a major surgery for bowel cancer which he was about to undergo. ‘Even having regard to the importance of the right to freedom of religion,’ the court concluded that the Employment Tribunal’s decision was ‘plainly correct’, and the Trust’s decision to dismiss Ms Kuteh for misconduct ‘fell within the reasonable band of responses’ in this case.
In Episode 79 Emma-Louise Fenelon talks to Christopher Mellor about causation in inquests, and the findings of the Divisional Court in R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin).
This episode was recorded shortly before the Court of Appeal decision was handed down in R (Maughan) v HM S Coroner for Oxfordshire [2019] EWCA Civ 809, upholding the civil standard of proof in relation to findings of suicide in inquests.
Dominic Ruck Keene has previously written about Maughan at first instance here and the Court of Appeal decision here.
Jeremy Hyam QC previously covered Maughan on the podcast in Episode 58 here.
The podcast also refers to the following cases (links to WestLaw):
R (Lewis) v HM Coroner for the Mid and North Division of Shropshire[2009] EWCA Civ 1403;
R (Tainton) v R. (on the application of Tainton) v HM Senior Coroner for Preston and West Lancashire[2016] EWHC 1396 (Admin)
R (Khan) v R. (on the application of Khan) v HM Coroner for West Hertfordshire [2002] EWHC 302 (Admin)
R v Sellu [2016] EWCA Crim 1716 CA
Law Pod UK is available on Spotify, iTunes,Audioboom, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
Lord Justice Davis gave the only substantive judgment. He began by summarising that in the instant inquest concerning the death of a prisoner who had been found hanging, the Chief Coroner for Oxfordshire had followed the Chief Coroner’s Guidance No 17 and also the guidance contained within the Coroner’s Bench Book. The Coroner had accepted that the evidence on a ‘Galbraith plus’ basis was insufficient to enable a jury, properly instructed, to conclude to the criminal standard that the deceased had intended to take his own life.
However, having so ruled, the Coroner had further decided that it would not be appropriate simply to elicit an open conclusion from the jury and that they should be asked to ask a number of questions in order to elicit a narrative conclusion. In light of the way the questions were framed, the jury had for the purposes of their narrative conclusion, considered whether the deceased had intended fatally to hang himself by reference to the balance of probabilities. Their narrative conclusion included a determination that the deceased had intended to kill himself.
The Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the Investigatory Powers Tribunal’s decisions are nevertheless amenable to judicial review, despite the existence of a powerfully-drawn ‘ouster clause’preventing its decisions from being questioned by a court.
In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be.
Background
The Investigatory Powers Tribunal (IPT) is the body which has jurisdiction to examine the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance.
The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?
In Episode 78 we explore the implications of the EU Directive on Copyright in the Digital Single Market for the music industry. Intellectual Property lawyer Andrew Lewis considers the criticism levelled at the new proposals for closing the “value gap” created by platforms such as You Tube. Will the Directive bring about the earth shattering change as its detractors claim, or will it simply level the playing field between You Tube and subscription only streaming services?
Law Pod UK is available on Spotify, iTunes,Audioboom, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.
Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.
Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.
She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court. Continue reading →
How can someone who suffers from severely limited sight avail herself of the process for making a mark on a paper ballot under the Representation of the People Act 1983?
In R (on the application of Rachel Andrews v Minister for the Cabinet Office [2019] EWHC 1126 (Admin) Swift J was presented with this very question, as the claimant, a sufferer from myopic macular degeneration who has been registered blind since 2000, was unable to vote without assistance, “either from the Presiding Officer at a Polling Station or a companion”
The main basis for her claim was that the regulations under the 1983 RPA have failed to achieve the purpose of prescribing the use of a device that enables blind and partially sighted voters to vote without assistance.
In the judgment, Swift J refers as short hand to “blind voters”, rather than “blind and partially sighted voters”.
Under challenge were the provisions for voting for blind voters. Rule 37 sets out the procedure thus:
The voter, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the number and other unique identifying mark, and put the ballot paper so folded up into the ballot box in the presiding officer’s presence.
The provision for blind voters is limited to “at least one large version of the ballot paper” to be displayed at the polling station and
A device of such description which may be prescribed for enabling voters who are blind or partially-sighted to vote without the need for assistance from the presiding officer or any companion.
The device prescribed is a “tactile voting device” made from a sheet of plastic with a number of tabs, printed in Braille, corresponding to the number of candidates standing in the constituency. However there are a number of shortcomings with the TVD, including the fact that a blind person has no way of knowing the name of the candidate or the name of the party the candidate represents. The TVD only permits a blind person to vote without assistance if she or he has memorised the order of candidates on the ballot paper.
The claimant contended that this was unsatisfactory. Without the assistance of the poll officer or a companion there was no way that she could mark her ballot paper against the name of the candidate she wished to vote for. It was not realistic, she contended, to expect her to memorise not only all the names of the candidates but the order in which they appeared on the ballot paper. In the 2009 by-election in her constituency for example there were twelve candidates. The position becomes even more complicated if more than one election takes place on the same day.>
This effectively denied her the opportunity to cast her ballot in secret.
The question before the court was the precise meaning of the words in Rule 29(3A) making provision for blind voters:
…a device … for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion …
The judge concluded that a device that enabled a blind voter to vote without the need for the assistance that could be provided by a Presiding Officer or companion would need to do more than the present TVD.
It would, at the least, have to comprise a fuller TVD of the sort suggested by the Claimant, which in addition to the numbered tabs has the name of each candidate and/or the party she stands for, either in raised lettering, or Braille, or both.
This was because of what it means to vote, which extends beyond the dictionary definition of the word. The respondent claimed that it meant the mere marking of one of the areas indicated on the ballot paper. But, in Swift J’s view, there was more to it, as indicated by the rules on spoilt ballot papers, which reflect
the clear (and to my mind obvious) connection between marking the ballot paper and choice. Voting under the rules means marking a ballot paper so as to indicate an intention to vote for one or other candidate….A device that does no more than enable blind voters to identify where on a ballot paper the cross can be marked, without being able to distinguish one candidate from another, does not in any realistic sense enable that person to vote. Enabling a blind voter to mark ballot papers without being able to know which candidate she is voting for, is a parody of the electoral process established under the Rules. [paras 21 – 22]
His conclusion was that the present TVD did not represent the fullest possible use of the power at Rule 29(3A). In order to enable a blind person to vote, a device must allow the blind voter to mark the ballot paper against the name of her candidate of choice. Declaratory relief was ordered to that effect.
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Josef. K the protagonist of Kafka’s novel ‘The Trial’ was an ambitious and successful banker prior to his unexpected arrest. The criminal charges brought against him were never explained because they were beyond the comprehension of all but the most senior judges. Attempting to understand his guilt, consumed K’s every thought – he was distracted at work, subservient to his lawyer and ultimately docile when led to his execution. ‘The Trial’ eloquently argued that transparency is a prerequisite of accountability. In the Age of the Algorithm, Kafka’s novel is now more relevant than ever.
Machine learning algorithms increasingly regulate our lives making decisions about us in finance, education, employment and justice. Ultimately, it will become pervasive in most, if not all aspects of decision making in the foreseeable future. But what is a machine learning algorithm? How does it decide? What rights do data subjects have? This article aims to answer all three of these questions.
Usually when a court in the UK is asked to consider a question of foreign law, the contents of that law are treated as a question of fact that must be pleaded and proved by the parties, usually by expert opinion. This is the case too in the United States, and in Hong Kong.
If the parties do not adduce factual evidence on the contents of the foreign law concerned, the English court will assume that the foreign law is exactly the same as the relevant English law – this is the common law notion of “presumption of identity”. This means, in effect, that where there is no foreign precedent on the point in question, or where the authorities are in conflict, the court must decide the matter for itself.
In an interesting briefing published by Links Law Office as part of their Dispute Resolution Bulletin, authors Patrick Zheng and Charles Qin explain that in China it is not clear whether foreign law constitutes a question of law or fact, as the Chinese court retains the power to investigate and clarify the applicable foreign law of its own motion.
Chinese law provides a number of ways for the parties and the court to “investigate and clarify” the applicable foreign law, including submissions by the parties, or the relevant foreign embassy, Chinese or foreign legal experts or “any other reasonable way to find foreign law, for example through the internet”.
TM (Kenya) concerned a 40 year old Kenyan woman who faced deportation after her applications for leave to remain and asylum were rejected by the Home Office. She had been detained at Yarl’s Wood Immigration Removal Centre in advance of proceedings to remove her from the country, during which time she had been uncooperative with staff. In light of her behaviour and in advance of her removal to Kenya, she was removed from free association with other detainees. Such detention was authorised by the Home Office Immigration Enforcement Manager at Yarl’s Wood, who was also the appointed “contract monitor” at the centre for the purposes of section 49 of the Immigration and Asylum Act 1999.
She sought judicial review of the decision to deprive her of free association. The initial application was refused. She appealed to the Court of Appeal where she advanced three grounds, including that her detention was not properly authorised.
The court found no conflict in the dual positions held by the manager at Yarl’s Wood. The Home Secretary had legitimately authorised her detention under the principles described in Carltona Limited v Commissioners of Works [1943] 2 All ER 560. In addition, there was no obligation to develop a formal policy concerning removal from free association, as Rule 40 of the Detention Centre Rules 2001 was sufficiently clear to meet the needs of transparency. Continue reading →
Angus McCullough QC is a barrister at One Crown Office Row. Read Part 1 about Anonymity orders in Personal Injury proceedings here.
In Part 1 we looked at the circumstances in which a court may be prepared to grant anonymity in personal injury proceedings, and the applicable principles. In Part 2 I consider practical issues in the drafting of these orders, and problems encountered in this.
In particular, I will suggest that the standard Court Form PF10, that is now frequently being adopted, is generally inappropriate for anonymity orders in personal injury proceedings.
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