16 October 2019
Lady Hale has thrown her wig into the debate on whether the law, represented by the courts, is gaining power while politics in Parliament is losing it. She is not the first to critique Lord Sumption’s Reith Lectures, as they were covered at ALBA’s Annual Conference too (see Law Pod UK episodes 88, 89, and 91).
15 October 2019
This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.
Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai
Introduction: The ‘Benefit Cap’
Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).
Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.
In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)
14 October 2019
The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.
Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.
Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson.
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11 October 2019
Pastörs -v- Germany (Case no. 55225/14))
On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.
Previous Holocaust denial cases before the European Court have arisen from statements made in various media, including a book (Garaudy -v- France (dec.), no. 65831/01, 24 June 2003), a TV show (Williamson -v- Germany, no. 64496/17, 8 January 2019) and even as part of a comedy routine (M’Bala M’Bala -v- France, no. 25239/13, 20 October 2015). This time the Court was called upon to consider statements made in a parliamentary context. The case involves ultra-right wing nationalist politics, parliamentary immunity from prosecution, the parliament’s ability to self-regulate that immunity, and the courts as final arbiters of such disputes. Although the statements concerned were made back in 2010, 9 years later the case still feels very topical.
9 October 2019
Delve & Anor, R (On the Application of) v The Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin) – read judgment
In a judgment handed down on 3rd October, the High Court has ruled that successive statutes between 1995 and 2014, which legislated to equalise the state pension age between men and women were not discriminatory. The High Court also determined that it was not a matter for the courts to conclude whether the steps taken to inform those affected by the changes in the state pension age for women were inadequate or unreasonable.
Background
The origins of this claim rest in the Old Age and Widows’ Pension Act 1940, where the state pension age for women was lowered from 65 to 60 in response to a campaign by unmarried women in the 1930s. The policy created a relative disadvantage to men, justified by the social conditions at the time.
The Pensions Act 1995 was enacted to equalise the age discrepancy and the methodology followed in subsequent legislation was to stagger the advancement of the pension age by reference to age cohorts. The first change to women’s state pension age contained in the 1995 Act would take effect in 2010, 15 years later.
8 October 2019
Where one looks across the piste of emergent significant climate litigation – that is, important cases in courts around the world that deal significantly with issues related to climate change – the case of State of Netherlands v. Urgenda (hereafter ‘Urgenda’) looms as large as most, if not any, court ruling to date.
This case, brought by the eponymous Dutch NGO Urgenda, has been rightly held up by many lawyers, commentators and environmental activists concerned to protect our planet from the harmful impacts of anthropogenic climate change as an important testament to the capacity for human rights law to assist in grappling meaningfully with hard problems posed by climate change in the courts.
Here, The Hague Court of Appeal ruled in October 2018 that the State was required to adjust the Netherlands’ national greenhouse gas emissions reduction target for 2020 upward from 20% to 25% (measured on 1990 emissions levels). This example of national courts ordering a state to adopt a more stringent climate mitigation target is unprecedented at the present time.
In addition to being of particular interest to human rights lawyers and legal analysts, including in these pages where key elements of the ruling have been summarised and discussed by David Hart QC, the broader ripple-effects of the case have become a motivating force in the wider context of climate activism, including in relation to some of the climate protests that have been springing up lately around the world.
7 October 2019
Charlotte Gilmartin of 1 Crown Office row, currently doing a Pegasus internship in Strasbourg, posted about the case of TT, R(on the application of) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam) last week.
Births and Deaths Registration Act 1953
In Episode 96 of Law Pod UK she discusses the case with Rosalind English. As promised, the statutory regime and relevant international law instruments are set out below.
Registration of Births and Deaths Regulations 1987
Gender Recognition Act 2004
Human Fertilisation and Embryology Acts 1990 and 2008
The European Convention on Human Rights Article 14 and Article 8
Law Pod UK is available on Spotify, iTunes, Audioboom, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
7 October 2019
Sam Sykes and Conor Monighan provide the latest updates in human rights law
In the news
This week marked the 70th anniversary of the Community Party’s rule in China. In Hong Kong, there were violent protests and clashes with the police. The unrest which began in the wake of the controversial extradition bill introduced 4 months ago has developed into a wider movement for democracy, and there is no resolution in sight. The situation has caused damage to buildings and transportation infrastructure, and serious injuries: this week, an 18-year-old was shot in the chest – police say that he is now recovering.
Carrie Lam, the Chief Executive of Hong Kong, invoked the Emergency Powers Ordinance to try and create order. It is the first time in 50 years that such regulations have been created. The regulations ban people from wearing face masks, which protesters use to protect themselves from tear gas, and also to preserve their anonymity. Although many have ignored the rule, the Hong Kong authorities are now bringing the first charges under the new law.
7 October 2019
This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.
This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.
The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.
4 October 2019
Richard Lloyd v. Google LLC [2019] EWCA Civ 1599
The Court of Appeal has ruled that a claimant can recover damages for loss of control of their data under section 13 of Data Protection Act 1998 without proving pecuniary loss or distress. The first instance judge, Warby J, had dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction in the USA, so preventing the claim getting under way.
The following paragraphs are based on the Court of Appeal’s own summary of the judgment.
The central question was whether the claimant, Mr Richard Lloyd, who is a champion of consumer protection, should be permitted to bring a representative action against Google LLC, the defendant, a corporation based in Delaware in the USA. Mr Lloyd made the claim on behalf of a class of more than 4 million Apple iPhone users. He alleged that Google secretly tracked some of their internet activity, for commercial purposes, between 9th August 2011 and 15th February 2012.
3 October 2019
A short examination of whether the policy endorsed by the Labour Party as part of its pledge to support social justice can be justified in law or is a flagrant contravention of human rights. This article was first published in Counsel magazine.
It didn’t take long for some rather well-known lawyers to point out there may be a flaw in this plan. Lord Lester QC of Herne Hill in a letter to the Times that weekend pithily explained that as long ago as 1982, he and David Pannick had advised the school governing bodies that ‘Labour’s plan would violate the European Convention on Human Rights and its first protocol. Our opinion was published. No one disputed our advice and the policy was dropped.’ He expressed surprise about the plan being reignited and continued to be of the view that the plan would violate the European Convention on Human Rights (‘the Convention’).
30 September 2019
A person who undergoes the physical and biological process of carrying a pregnancy and giving birth, irrespective of gender? This was the ruling of the Rt. Hon. Sir Andrew McFarlane P, President of the Family Division, on 25th September in TT, R(on the application of) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam) . He decided that the Claimant, (known as “TT”), who was legally recognised as male at the time of giving birth to his child, (“YY”), is correctly registered as “mother” on YY’s birth certificate.
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27 September 2019
Emma-Louise Fenelon talks through the recent Supreme Court ruling that prorogation was unlawful with Jonathan Metzer, Commissioning Editor of the UK Human Rights Blog, and Jo Moore, Head of Outreach at 1 Crown Office Row in Episode 94 of Law Pod UK
24 September 2019
R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41
In a historic decision, a panel of 11 justices of the Supreme Court has held that the decision of the Prime Minister, Boris Johnson, to prorogue Parliament for 5 weeks from 9 September to 14 October 2019 was unlawful on the basis that it constituted an unjustified frustration of the constitutional principles of Parliamentary sovereignty and accountability.
Giving the summary of the Court’s reasons for the decision, the President of the Supreme Court, Lady Hale, said that
when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper … Parliament has not been prorogued.
It follows, said Lady Hale, that the Speaker of the House of Commons and the Lord Speaker of the House of Lords “can take immediate steps to enable each House to meet as soon as possible”.
24 September 2019
The verdict is in. The Supreme Court has unanimously held that Boris Johnson’s advice to the Queen to prorogue Parliament until October 14 was ‘unlawful, void and of no effect’, since it had the effect of frustrating Parliament. As such, the prorogation was itself void.
The full judgment and the summary judgment are available and can be downloaded from the Supreme Court website. Lady Hale’s summary judgement is also widely available to watch in full.
For those with still less time, The Guardian has summarised the six key paragraphs as follows.
This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
| Commissioning Editor: | Jonathan Metzer |
|---|---|
| Editorial Team: |
Rosalind English Angus McCullough QC David Hart QC Martin Downs Jim Duffy |
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