18 February 2019
From the popular four part episodes out of 1 Crown Office Row’s seminar ‘Erasure, Remediation and Rights of Appeal in Disciplinary Proceedings’, we bring you Episode 67 with Matthew Barnes, who asks the question in his talk about remediation – Can you teach an old dog new tricks?
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18 February 2019
MAS Group Holdings Ltd and others, R (on the application of) v Barco De Vapor B.V. and others [2019] EWHC 158 (Admin), 4 February 2019
As a matter of policy, the UK government is committed to improving the welfare of all animals, or so we are given to understand. In this little-covered ruling, we see that the responsible authorities are trying to do what they can to alleviate the suffering of farm animals enduring transport for slaughter:
[The government] would prefer to see animals slaughtered as near as possible to their point of production and thus trade in meat is preferable to a trade based on the transport of live animals. Whilst it recognises the United Kingdom’s responsibilities whilst remaining a member of the EU, it will be looking to take early steps to control the export of live animals for slaughter as the UK moves towards a new relationship with Europe.
Livestock transport has been a controversial subject in the UK for many years. Efforts by public authorities to reduce or mitigate the movement or export of live animals have hitherto foundered on the rocks of free movement of goods (see my post on TFEU Article 35). Despite the ethical controversy, the current position is that long distance transport of nonhuman animals for slaughter is lawful (Barco de Vapor BV v Thanet District Council [2015] Bus LR 593.)
18 February 2019
Renu Begum holds a photograph of her sister Shamima, taken prior to the then school girls travel to Syria to support the Islamic State. Credit: The Guardian
Immigration cases have dominated human rights case law this week. However, perhaps the greatest controversy concerned the Home Secretary’s intervention in the case of Shamima Begum. News broke on Sunday morning that the nineteen-year-old had given birth in Syria to baby boy, having travelled to the country to support ISIS as a school girl three years ago.
The Times newspaper’s report earlier in the week that Miss Begum wished to come back to the UK prompted Sajid Javid to tell the same paper that he “would not hesitate to prevent” her return. International law may be an obstacle; Article 8 of the UN Convention on the Reduction of Statelessness 1961, to which the UK is a signatory, prevents a government from depriving an individual of their nationality if it would render them stateless.
However, UK law does permit the removal of citizenship under certain conditions. Section 66 of the Immigration Act 2014 allows the removal of citizenship where that status results from naturalisation, the Secretary of State is satisfied that deprivation is conducive to the public good and there are reasonable grounds for believing the person is able to become a national of another country or territory. The Supreme Court has been happy to allow an individual to become de facto stateless, but not de jure stateless – Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015).
The key difference in Miss Begum’s case is that she appears to lack citizenship of another country. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 (Paragraph 70), Lord Bingham cited Sir William Holdsworth’s ‘A History of English Law (1938’), vol X, p 393:
The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it
Similarly, Laws LJ, at paragraph 39 of the judgement in Bancoult (No 1), stated:
For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen.
Mr Javid may well find that preventing Miss Begum’s return is more difficult than giving a hard-line soundbite to The Times. It is not difficult to imagine a whole array of different grounds on which to challenge such a decision, including her age at the time she left the United Kingdom, positive secondary duties owed under Human Rights law and obligations owed to her child, who appears to automatically inherit British citizenship through his mother.
In other news…
12 February 2019
Rosalind English presents the first of three highlights from 1COR’s recent seminar on professional discipline; ‘Erasure, Remediation and Rights of Appeal in Disciplinary Proceedings’, with Robert Kellar and Jeremy Hyam QC discussing the General Medical Council‘s right of appeal.
11 February 2019
Conor Monighan brings us the latest updates in human rights law
Credit: the Guardian
In the News:
The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.
The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions.
Continue reading →
8 February 2019
Matthew Hill is a barrister at One Crown Office Row.
The Lord Chancellor and Secretary of State for Justice, David Gauke, has published his report into the Review of Legal Aid for Inquests. This follows numerous campaigns and calls for more extensive funding for bereaved families at inquests, particularly those where the state is represented.
In short, the news is not good for those campaigners:
Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented [sic]. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.
Another search, it seems, for ‘alternative arrangements’.
5 February 2019
Esegbona v Kings College Hospital [2019] EWHC 77 (QB)
Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe QC sitting as a High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.
4 February 2019
Following our popular interview with James Badenoch QC on the “doctor knows best” rule of evidence in medical negligence cases, we bring you John Whitting QC, healthcare law specialist at 1 Crown Office Row (@JohnWhittingQC). In Episode 64 of Law Pod UK, John talks to Rosalind English about the realities of clinical encounters and considers to what extent patients are willing, or in some circumstances even able – to take on board multiple options for their treatment.
4 February 2019
At the end of January the Investigatory Powers Commissioner published his first annual report for 2017. Its coverage of errors provides some very welcome transparency. But one matter remains opaque and exposes a legislative and policy challenge: when serious mistakes are made, who finds out?
In this post I set out what the IPC report says in this regard, explain the legislative framework, and then identify the challenges and choices for both law and policy. The two points I highlight are:
4 February 2019
The Supreme Court has upheld challenges to the legal regimes for disclosing criminal records in England and Wales, and Northern Ireland, finding them to be incompatible with Article 8 of the European Convention on Human Rights (“ECHR”).
R (P, G and W) and Anor v Secretary of State for the Home Department and Anor [2019] UKSC 3 – Read Judgment
4 February 2019
In the news
A cross-party group of MPs is seeking to put an end to indefinite detentionin immigration centres. Led by Harriet Harman MP, the Chair of the Joint Committee on Human Rights, the group are backing an amendment to the Immigration and Social Security Coordination (EU Withdrawal) Bill, which will make it illegal for people to be held for more than 28 days in an immigration detention centre, unless a judge issues a 28-day extension.
The Human Rights group Liberty has published two important reports. The first report highlights the failings of the UK military justice system, including a lack of transparency and a practice of downgrading offences to as to deal with them internally; the report recommends a new independent supervisory body for the Service Police. In connection with the report, Liberty has launched an Armed Forces Human Rights Helpline.
The second Liberty report evaluates the use of ‘predictive mapping’ by the police to identify crime hotspots and to conduct ‘individual risk assessments’. The report concludes that this system threatens privacy and freedom of expression, and encourages discrimination and racial profiling.
A few pending cases are of interest:
31 January 2019
Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.
Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson[1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:
I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)
31 January 2019
Conference Report by Anthony Wenton
The evolution of international human rights law (IHRL) in the UN era has seen a paradigm shift away from a view of international law as applying solely to states and their relations with other states, to a focus on the rights of individuals and the duties states owe to citizens. As articulated in the Universal Declaration of Human Rights, certain rights are so fundamental as to be universal in scope based on our common humanity. As Reisman notes‘no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law.’
The question is how these inalienable rights, expressed so forcefully on the international level, can be transposed into domestic law. One way is through the process of judicial interpretation. However, this poses a challenge in dualist systems where, traditionally, courts do not take international law into account, unless implemented by national legislation. This reluctance to engage with unincorporated IHRL is what the 1988 Bangalore Judicial Colloquium—a group including such luminaries as Michael Kirby, Ruth Bader Ginsburg, Anthony Lester and P.N. Bhagwati—sought to address. The resulting Bangalore Principles, concluded that:
It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes—whether or not they have been incorporated into domestic law—for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.
31 January 2019
If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832.
The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.
30 January 2019
Dominic Ruck Keene is a barrister at One Crown Office Row.
The European Court of Human Rights has held in Catt v The United Kingdom (43514/15)) that that the retention by UK police of information on the Domestic Extremism Database about a 90 year-old activist’s presence at political protests was a breach of his Article 8 ECHR rights. The ruling follows the Supreme Court’s contrasting judgment that such gathering and retention had been lawful and a proportionate interference with Mr Catt’s Article 8 ECHR rights.
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 |
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| Editorial Team: |
Rosalind English Angus McCullough QC David Hart QC Martin Downs Jim Duffy |
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