Monthly News Archives: May 2013
16 May 2013 by David Hart KC
N.K.M v. Hungary, ECtHR, 14 May 2013, read judgment
Those of a certain age will remember when top tax rates in the UK were 98%. This was the marginal rate of tax in this successful claim that such taxation offended Article 1 of the 1st Protocol (A1P1) – the peaceful enjoyment of possessions. But the very wealthy seeking to safeguard their bankers bonuses may not obtain too much comfort from the Strasbourg ruling, as the facts were fairly extraordinary.
The applicant had been a Hungarian civil servant for 30 years until her dismissal (with many others) in July 2011. Long-standing rules gave her 8 months severance pay. The 98% tax rate was introduced in 2010; it was then successfully challenged in the Hungarian Constitutional Court. On the day of the Court’s adverse judgment, the tax was re-enacted, but this time the 98% rate was applied to pay exceeding 3.5m forints – c. £10,000 – and, further, only where the earnings came out of specified categories of public sector employees.
A fresh challenge in the Constitutional Court annulled the retrospective effect of this law, but could not as a matter of jurisdiction review the substantive aspects of the tax. So the applicant went to Strasbourg to challenge the tax when deducted from her pay.
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15 May 2013 by Adam Wagner
A quick post to draw your attention to the British Institute of Human Rights’ excellent new publication, Mental Health Advocacy and Human Rights: Your Guide (PDF).
The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:
This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems. This guide has been produced with Mind Brighton and Hove, Wish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.
Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.
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15 May 2013 by Isabel McArdle
GROSS v. SWITZERLAND – 67810/10 – Chamber Judgment [2013] ECHR 429 – Read judgment / press summary
The European Court of Human Rights has ruled that Swiss guidelines for doctors prescribing lethal drugs were too unclear and therefore breached article 8 ECHR, the right to private and family life. Ms Gross sought a prescription for a lethal drug to end her own life. She has no critical illness, but is elderly and feels that her quality of life is so low that she would like to commit suicide. The Swiss medical authorities refused to provide her with the prescription.
Assisted dying and the right to die have been firmly back in the spotlight this week, with the cases of Lamb and “Martin” going to the English and Wales Court of Appeal. Mr Lamb is taking up the point made by Tony Nicklinson in the High Court, before his death, that doctors should have a defence of necessity to murder charges in cases of assisted suicide. Mr Nicklinson’s widow, Jane, is continuing his fight too. The cases also challenge the current guidelines on when prosecution should be brought for assisting suicide. You can read more about the background to the right to die caselaw here.
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13 May 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular chocolate selection gift box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week, the Government announced plans to curb Article 8 of the ECHR, Grayling continues to cause controversy with his reforms of both the Criminal Justice System and of judicial review, and Qatada may soon be leaving us for pastures new.
by Sarina Kidd
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9 May 2013 by Rosalind English
PC (by her litigation friend the Official Solicitor)[1] and NC [2] v City of York Council [2013] EWCA Civ 478 – read judgment
It may seem strange that the same individual, with learning difficulties, can be considered to have capacity to marry, but not the capacity to decide whether to live with the person they have espoused. What, in essence, is marriage, that puts it on such a different footing to informal cohabitation?
The question arose because the woman in question (PC) had married NC after he had been convicted and sentenced for serious sexual offences. She had briefly cohabited with the him before he was convicted and married him in 2006 while he was in prison. He was due for release on licence in 2012. It was common ground that he posed a serious risk to PC in her capacity as a cohabiting wife. The local authority obtained a declaration from the Court of Protection ([2013] Med LR 26) that although PC had had capacity to marry and to understand the obligations of marriage, she did not have the capacity to decide whether to cohabit with NC upon his release. What Hedley J said was this:
She is undoubtedly within section 2(1) [of the Mental Capacity Act] requirements of impairment. Applying the section 3(1) test I am not satisfied that she is able to understand the potential risk that NC presents to her and that she is unable to weigh the information underpinning the potential risk so as to determine whether or not such a risk either exists or should be run, and should, therefore, be part of her decision to resume cohabitation.
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8 May 2013 by Adam Wagner
I have written an article for the New Statesman on the announcement in today’s Queen’s Speech about Article 8 ECHR. It is here. Enjoy!
For more, see:
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7 May 2013 by David Hart KC
Holland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013 – read judgment
In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.
UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information.
This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them. UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.
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6 May 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular assortment of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Not a particularly noisy week on the human rights front, but some interesting summaries and analyses. The House of Commons Library has compiled a summary of UK cases before Strasbourg since 1975, as well as on the prisoner voting issue. Some commentary on the issue of secret justice, in particular the role of the independent reviewer of terrorism legislation, and the powers of the court of protection in contempt proceedings.
by Daniel Isenberg
In the News
Legal Aid
The Legal Aid cuts are set to continue – see Adam Wagner’s post on the latest consultation, which closes on 4 June 2013. As with previous consultations, we will be collating responses so please send us yours (to email click here).
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5 May 2013 by Adam Wagner
“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013.
The reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to
- removing legal aid for prisoners challenging the way they are treated in prison,
- reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
- the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
- amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
- introducing price competition into the criminal legal aid market,
- reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
- reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
- reducing fees to experts in civil, family and criminal cases by 20%.
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3 May 2013 by Alasdair Henderson
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here
The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions.
The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.
The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.
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2 May 2013 by Rosalind English
Faulkner, R (on the application of ) v Secretary of State for Justice and another [2013] UKSC 23 – read judgment
The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.
These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.
Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants.
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2 May 2013 by Guest Contributor
R (on the application of T) v Legal Aid Agency (formerly Legal Services Commission) [2013] EWHC 960 (Admin) Collins J, 26 April 2013 read judgment This successful challenge to a decision by the Legal Aid Agency (LAA) arose from an expert assessor in family proceedings – not unnaturally – refusing to begin work unless funding was in place. If the LAA are asked to fund an assessment on behalf of a party with legal aid, then it is common for lawyers to obtain prior authority from the LAA to ensure that the expert will be paid for their work. If not, then the lawyers themselves can be liable for an expert’s costs. In this case, prior authority to pay for the expert assessment had been refused by the LAA thus resulting in further court hearings and delay in the resolution of the case for the children.
The application for judicial review of the LAA came before Collins J. He concluded that:
For the reasons given the decision of the defendant was wrong in law. Reasons have not been given. This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed. Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary.
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1 May 2013 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs [2013] UKSC 25, Supreme Court, 1 May 2013 – read judgment
on appeal against Court of Appeal 30 May 2012 read CA judgment
The Supreme Court has taken the UK’s lack of compliance with EU legislation, Directive 2008/50 (limiting the amount of nitrogen dioxide in air) much more seriously than the courts below. It has made a declaration that the UK is in breach and has referred questions of interpretation concerning the Directive and remedies to the CJEU.
The UK has been in breach of Article 13 the Directive since 1 January 2010, because at that date 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and, given the admission, the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings.
This seemed to me like a cop-out – it is for the Commission and the courts to enforce directives, as I suggested in my previous posts (e.g. here) on this case.
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N.K.M v. Hungary, ECtHR, 14 May 2013, read judgment
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