Thinking about reasons again

_70626907_792ccfc-arielsiteplan2R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment

There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.

And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.

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The Round Up – locking up leakers for longer

whistleblowingInformation leaks have led to some slippery situations for some in recent weeks. Not even David Beckham escaped unscathed, when his disappointment at being overlooked for a knighthood was revealed in a series of expletive-ridden emails by Football Leaks earlier this month, and saw him vilified by the British public for his attitude to charity, tax and Katherine Jenkins.

Donald Trump too found himself insisting at a press conference, and – as ever – on his trusty twitter account, that his former US national security adviser had been a victim of criminal and illegal leaks. Michael Flynn was forced to resign after allegations emerged that he had conducted meetings over diplomatic issues with the Russian ambassador before holding office at the White House, even though it is illegal for private citizens to engage in US diplomacy. These revelations have only increased concerns over the US’ relationship with Russia.

Back in the UK, the issue of intelligence leaks has been a hot topic this month since the Law Commission unveiled its latest consultation paper which seeks to reform the Official Secrets Act. The paper was conducted in an effort to modernise UK legislation, with the Official Secrets Act harking back to 1911. Many have argued that it is in dire need of reform in the technology age of the 21st century, and there has been particular pressure for this to occur since the disclosures by Edward Snowden. Continue reading

The Round-Up: this week in human rights legal news

child-refugees

THE DUBS AMENDMENT

The big news this week is that the UK government will only accept another 150 unaccompanied refugee children under the Dubs Amendment.

What’s the Dubs Amendment?

Alfred Dubs, who himself came to the UK via Kindertransport, introduced an amendment to the Immigration Act 2016. The amendment, which became Section 67 of the Act, mandated that a number of unaccompanied child refugees in Europe would be allowed to come to the UK. The number was left unspecified, until this week.

Since the law was passed in May, it has brought around 900 children to the UK, many from the camp (the ‘Jungle’) in Calais. Many of these came over when French authorities ransacked the Jungle in October 2016.

(FYI, the Dubs Amendment is not to be confused with the Dublin rules, an EU Regulation governing how asylum claims are handled and shared between EU countries. Amber Rudd herself has on occasion gotten it wrong. For news this week on the Dublin Regulations and time limitations, see here).

What just happened?

Now Amber Rudd has announced (in a written statement the day before Parliamentary recess) that the number of children brought by the Dubs Amendment will not exceed 350. That includes 200 already transferred, and only children who were in Europe before the Immigration Act was passed in May 2016 are eligible (at least under this provision – the Syria Vulnerable Persons Resettlement Scheme and the Vulnerable Children’s Resettlement Scheme are still in operation).

What now?

Well, the charity Help Refugees had already launched an application for Judicial Review for the government’s failure to properly implement the Dubs Amendment, back in 2016. The claim (brought by three barristers from Doughty Street, instructed by Leigh Day) asserts that the government failed to properly consult with local authorities as required by statute (as per Section 67.2 of the 2016 Act), and therefore both unlawfully and incorrectly calculated the number of children to bring. The case characterises the government’s figure as woefully low, and the claim won a pretty significant victory in December 2016: the court found that the Dubs Amendment was an additional obligation that the government did not meet by acting in accordance with EU law, specifically Dublin III above.

The next hearing for this case is actually today, in the High Court. This in an interesting one to watch in light of these recent developments, so watch this space!

TRANSGENDER PARENTING

The Family Court in Manchester has denied a transgender parent access to her five Orthodox Jewish children. J, a transgender woman, left her wife and the Charedi Jewish community in 2015 and has been fighting a legal battle for access to her children since.

In family law, the welfare of the children is the paramount consideration: any decision regarding parental access must be made with that in mind. A parent’s presence in a child’s life is presumed to be beneficial unless the contrary is shown.

Mr Justice Peter Jackson, in his judgment, had the unenviable task of balancing J’s rights on the one hand, to see her children and to be free from discriminatory treatment as a transgender women, and the potential harm to the children. The judge, who said that “it is not for the court to judge the way of life of the ultra‐Orthodox Jew or of the transgender person,” found “with real regret” that the overriding concern was the risk, amounting to a probability, that the children and their mother would be rejected by their Orthodox community if they continued to have a relationship with J.

(J v B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4)

MARRIAGE LAWS

Two separate judgments this week have been a win for unmarried couples.

The ECHR found that to exclude children born out of wedlock from their inheritance rights is discriminatory. German legislation previously provided that children born out of wedlock before 1st July 1949 were precluded from the right to inherit, and the ECHR followed the direction of movement in both national and EU-wide case law to find that this was unlawful. (Mitzinger v. Germany, Application no. 29762/10 ECHR)

Closer to home, the Supreme Court found in favour of a Northern Irish woman, Denise Brewster, who applied for Judicial Review after she was denied her deceased partner’s pension. Unmarried cohabitees in Northern Ireland were required to nominate their partners with a designation form, whereas married couples would benefit from automatic entitlement. Because Ms Brewster’s partner didn’t fill out the nomination form before his sudden death, she was not entitled to his pension. The five sitting justices in the Supreme Court found unanimously that the requirement for an opt-in form should be removed. This judgment is predicted to have wide implications for the rights of cohabiting couples in other areas.

RIGHTS OF DISABLED PEOPLE

Various charities for disabled individuals have published reports finding that the UK government is violating the UN Convention on the Rights of Persons with Disabilities. These will be submitted to the UN Committee on the Rights of Persons with Disabilities, which announced in 2015 that it would conduct an inquiry into the UK government’s treatment of disabled people.

The UK has the (very) dubious honour of being the first: no other government has yet been investigated under this Convention. The Optional Protocol mandates the UN Committee to investigate where they have reliable evidence of ‘grave and systemic violations’ of the Convention, but this had not yet been used since the Convention was adopted in 2008.

The UN released a damning report in October 2016, finding that the UK government has systemically violated the rights of disabled people and making eleven policy recommendations. It delves into policies going back to 2010, including vicious cuts to welfare and social security benefits. Westminster’s response is expected later this year.

 

IN THE NEWS:

  • Trump’s executive order mandating a travel ban on citizens from seven countries has been found unlawful in multiple US appeals courts. With lawsuits currently moving through 11 out of the 13 US appeal court circuits, it’s easy to anticipate that the controversial order will provide grounds for litigation for months and perhaps years to come. The likelihood that the US Supreme Court will rule on the ban is growing, as Trump’s administration shows willing to defend the policy throughout the courts, and meanwhile the American Civil Liberties Union is moving towards international legal action, and applying for an emergency hearing before the Inter-American Commission on Human Rights.
  • The Bar Council and the Citizenship Foundation are creating lessons for secondary school pupils on constitutional law to explain the role of the judiciary in democracy. The move was prompted by the backlash against the judiciary after the Miller ruling about triggering Article 50, in particular the personal attacks against the three High Court judges. (BBC).
  • MP Liz Saville Roberts has tabled a Sexual Offences (Amendments) Bill 2017, which is attracting significant cross-party support. The Bill would tighten up existing laws on the use of sexual history evidence in rape cases, including questions in cross-examination. (Guardian)

IN THE COURTS THIS WEEK:

  • The High Court is hearing an application for Judicial Review on the government’s decision to continue selling arms to Saudi Arabia, despite warnings from senior civil servants that they might be used to kill Yemeni civilians. (Guardian)

 

EVENTS:

  • If you missed 1 Crown Office Row’s event in collaboration with Leigh Day, “Brexit and Fundamental Rights”, you can find the podcast here. Chaired by Joshua Rozenberg QC, no less, it’s well worth a listen!

More vaccine litigation

swine_flu_vaccine313John (A Minor: Vaccine Damage Payments scheme), Re [2017] EWCA Civ – read judgment

As commentators to my previous post on immunisation have pointed out, vaccinations are not cost-free. But the benefit of eliminating pathogens through herd immunity is generally agreed to outweigh the occasional risk to individuals. Acknowledging that there are such risks,  the government has run a modern compensation system since 1979 for people who are “severely disabled” as a result of vaccination (now the 2012 Vaccine Damage Payments Scheme). The initial scheme was put in place in response to side effects of the whooping cough vaccine.

The question before the Court of Appeal in the present case was whether the determination of the severity of a person’s disablement could take account of prognosis. If an individual has been assessed as having a lifelong condition, is the state obliged to compensate them for future disabilities?

Yes, said the Court of Appeal: this is not speculation, our legal system is used to it. It is the “very stuff” of personal injury litigation.

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Time limits for the return of asylum seekers – did the clock stop ticking?

Time limits for the return of asylum seekers – did the clock stop ticking?

Analogue-clock-007Mucaj, Re Judicial Review, [2017] CSOH 17 – read judgment.

Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.

The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.

As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland, [2015] CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.

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Should courts order vaccination against parents’ wishes?

Vaccine in vial with syringe. Vaccination concept. 3d

Vaccine in vial with syringe. Vaccination concept. 3d

SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017) [2017] EWHC 125 (Fam)

The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.

Background facts

The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine. Continue reading

Fathers4 (Access2) Justice: Administrative Court ruling on the public’s right to attend court hearings and the Court Service’s limited powers of control – Chris Adamson

fathers4justice-pic

R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin)

Summary

On 20 February 2015 Matthew O’Connor, the Claimant in this judicial review and the founder of the campaign group Fathers4Justice, was due to go on trial at Aldershot Magistrates’ Court for a public order offence. He arrived at court with around ten of his supporters, but when they tried to gain entry to the court building they were prevented from doing so by HMCTS staff. Only the Claimant and his Mackenzie Friend were allowed to enter.

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