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The debate about the proper role of judges in our democracy has taken on the shape of the political landscape in which we find ourselves: pitched between two distant poles. Lord Sumption’s Reith lectures put forward the thesis that the courts have been getting more powerful while politics has been getting less powerful; he criticises this perceived shift, holding that while ‘law has its own competing claim to legitimacy … it is no substitute for politics’. Lady Hale’s recent response rejected ‘the suggestion that judicial processes are not also democratic processes,’ proffering instead the view that the courts have been, and must go on, ‘doing their job — the job which Parliament has given them or which the common law has expected of them for centuries’. Brexit, the polarising problem which has been pushing judges into the public eye recently, seems also to have pushed them into expressing starkly opposite points of view.
Given the vast, intricate, all-consuming issue that gave rise to the debate, it is interesting that both Lord Sumption and Lady Hale begin by centring their arguments on an acutely intimate issue. Lord Sumption singles out the case of Charlie Gard as an example of ‘law’s expanding empire’. He argues that the High Court’s intervention into the baby’s treatment illustrates an increasing tendency of the law to limit individual autonomy, even in cases where the exercise of that autonomy does no harm to others, and there is no consensus as to its morality. After making it clear that she will not be addressing the Supreme Court’s recent decision on the prorogation of Parliament, Lady Hale tackles this argument at once. Citing the decision of the High Court in the case of Tafida Raqeeb earlier this month, she argues that far from judicial over-reach, these cases simply illustrate the courts doing their job well: ‘resolving disputes according to clear legal standards in the light of all the available evidence’. The distinction between the cases of Charlie Gard, Alfie Evans and Isaiah Haastrup, in which doctors were allowed to withdraw life support, and Tafida’s case, in which her parents were permitted to transfer the child to Italy for treatment, was that the evidence as to her prognosis, awareness and pain level was less clear cut. Mr Justice MacDonald acknowledged that the decision as to her medical best interests was made on ‘a fine balance’.
It is difficult to accept that in cases like these—which involve strongly-held religious and cultural convictions, conflicting medical evidence, clashing public opinion, desperate parents, and desperately unwell children—intervention by the courts is nothing more than an exercise in clarity and objectivity. Equally, it is difficult to accept that the courts have no place whatsoever in such decisions. Whichever view you take, it’s a leap to accept that a problem on this scale, even a very knotty and complicated problem on this scale, should be stretched and expanded to make a bigger point about how politics and the law ought to interact when it comes to the most fundamental, far-reaching problem facing our country today.
Unsurprisingly, both Lord Sumption and Lady Hale chose their words fastidiously. If there was a stretch or expansion to be made, they invited their audiences to make it themselves. What then did Lady Hale want her audience to understand by her comment, at the very conclusion of her lecture, that she took comfort in the fact that ‘in the Supreme Court we are not alone’ since ‘there is safety in numbers’? Rightly or wrongly, our judiciary is embroiled in a political issue which has whipped up violent threats against MPs on both sides of the debate and resulted in the first killing of a sitting British MP since the Troubles. Whether the sitting Justices acted as lions under the throne, “Enemies of the People,” or simply did their jobs, they acted unanimously. Perhaps Lady Hale’s closing comment subtly reminds us why.
In related news, the Supreme Court has extended human rights protections to whistleblowing judges, unanimously granting an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996. After receiving death threats and dealing with violent litigants, Claire Gilham secured the right to receive standard employment protections given to all other workers. In her judgement, Lady Hale stated that to deny Gilham these remedies would ‘be an interference with her right to freedom of expression, protected by article 10 of the European convention on human rights.’ Speaking outside the Supreme Court, Gilham said that the decision would only enhance the independence of the judiciary, ‘and that is a valuable constitutional safeguard’.
In other related news, the Court of Appeal has unanimously refused Liberty permission to have heard an urgent application seeking to prevent Boris Johnson crashing out of the European Union without a deal. Liberty’s director Martha Spurrier framed the case as being ‘nothing to do with Brexit. It is about ensuring the government … obeys the law’. Three senior judges, the lord chief justice, Lord Burnett of Maldon, the master of the rolls, Sir Terence Etherton, and president of the Queen’s bench division, Dame Victoria Sharp, agreed that there was no need for the matter to be considered by the English courts immediately, and said they would give their reasons at a later date.
Finally, in a development which some might consider more pressing to our children’s wellbeing and nation’s security than those discussed above, an ongoing battle to block the expansion of London’s Heathrow Airport will resume in the Court of Appeal on Thursday. The Guardian’s environmental correspondent reports that lawyers will argue that the expansion violates the climate rights of children and future generations, who will face the greatest impact of the climate crisis. She notes that the intervention comes ‘after young people spearheaded the biggest climate change protest in history last month, and follows Greta Thunberg’s challenge to world leaders that their inaction was letting down a generation’. As long as Brexit looms large on the horizon, however, it seems unlikely that environmental issues will truly take the foreground.
In Other News
The Guardian reports that a new study by the Oxford Technology and Elections Commission has warned that government, political parties and social media companies all need to take immediate action to reduce the risk of malicious actors in the UK and abroad from contaminating the results of a looming general election.
The Guardian has also covered the stories of a number of academics the Home Office plans to deport, or has given two weeks to leave the country, or whose children it has refused visas. The paper repeats the comments of an immigration lawyer who states that the UK immigration system is ‘failing academia’ and ‘undermining the efforts of educational institutions to attract and retain global academic talent.’ In a related story, the Home Office has overturned its ban on an NHS eye doctor returning to Brtain after the same paper highlighted his case.
The Independent outlines the Bar Council’s calls for the implementation of a number of proposals outlined by the government in its recent consultation on sexual harassment at work. The vice-chair of the council’s law reform committee expressed her view to the paper that the legal protections currently in place are not having the desired result and there is still widespread harassment taking place in the workplace.
The Telegraph outlines new guidance from the Equality and Human Rights Commission which provides that non-disclosure agreements must not prevent employees from bringing discrimination cases against their employer. Additionally, the guidances emphasises that NDAs should never prevent employees ‘from whistleblowing, reporting criminal activity or disclosing other information as required by law.’
The Independent reports on an analysis of official statistics by the Local Government Association which suggests that the number of council referrals of suspected child victims of modern slavery in England to the National Referral Mechanism has risen at an alarming rate in recent years. The paper asserts that affected children are falling back into exploitation and homelessness as local austerity-hit authorities struggle to deal with the surge.
In the Courts
Gray v Mulberry Co (Design) Ltd [2019] EWCA Civ 1720: The Court of Appeal ruled an employee’s belief that there was a statutory human or moral right to own the copyright and moral rights of her own creative works and output, except when produced on behalf of an employer, did not amount to a ‘philosophical belief’ for the purposes of the Equality Act 2010 s10(2). Accordingly, the employee, who had been dismissed after she failed to sign a confidentiality agreement on the basis of that belief, had not been discriminated against.
Re O (Committal: Legal Representation) [2019] EWCA Civ 1721: The Court of Appeal held that respondents to committal proceedings were entitled to be provided with legal representation if they wanted it, and would qualify for non-means-tested legal aid. Courts were obliged to ensure that such protection was made available, otherwise any resulting committal order might be procedurally irregular.
GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630: The Court of Appeal held that the First-tier Tribunal had erred by failing to consider relevant facts and misapplying appropriate legal tests in considering a Sri Lankan national’s claim that her removal from the UK would be in breach of her rights under ECHR Article 8. The Home Secretary was directed to reconsider her claim, taking into account that since the original decision her husband and two children had been granted indefinite leave to remain and the children had developed strong social links within the UK.
On the UKHRB
Will Hanson summarises and assesses the significance of Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44, a recent unanimous Supreme Court decision to grant an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 and therefore could not benefit from the whistleblowing protections it conferred.
Alice Kuzmenko outlines Lady Hale’s recent response to Lord Sumption’s Reith Lectures, and lays out some further points which might be made in support of her Ladyship’s argument.
Conor Monighan summarises and analyses some of the main points of interest arising from the Alba Conference 2019.
Law creates artificial relationships between non-related people and entities. It even gives person-hood to non-biological beings such as companies and partnerships (although not yet to non-human species). Genetics describe the underlying relationship of all biological beings. For centuries, law and genetic science developed in parallel with very little overlap. But as genetic discoveries ride the crest of the technological revolution, law finds itself on the back foot. Legal instruments, such as property law and the law of obligations between non-related individuals were crafted in feudal times with the aim of protecting property beyond the death of the owner. With genetic discoveries, we face a myriad of questions, from ownership of gene editing techniques to the dangers of discrimination based on genetic predisposition for disease.
Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment
The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.
In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).
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).
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)
Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.
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. Continue reading →
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.
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.
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 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
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.
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.
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 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.
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’).
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. Continue reading →
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