Monthly News Archives: June 2013
20 June 2013 by Rosalind English
In the matter of B (a child) (FC) [2013] UKSC 33 – read judgment
This appeal concerned whether a child of two years of age should be permanently removed from her parents and placed for adoption; and, in that regard, whether the child was likely to suffer “significant harm: within the meaning of s.31(2)(a) of the Children Act 1989; and a consideration of whether her permanent removal might interfere with the exercise of the right to respect for family life under Article 8 of the ECHR, and, if so, whether the order should be proportionate to its legitimate aim of protecting the child.
The following summary is based on the Supreme Court press report. References in square brackets are to paragraphs of the judgment.
Background facts
The child concerned had been removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step-father. She also had criminal convictions for dishonesty and a history of making false allegations. She had been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found.
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19 June 2013 by Jim Duffy
According to the President of the Supreme Court, the judiciary not only has a right but an obligation “to speak out on matters concerning the rule of law.” In recent months, it is a duty from which Lord Neuberger has not shirked, and last night’s lecture to the Institute of Government was no exception. Its focus was the importance of legal aid, which Neuberger described through the prism of the UK’s constitutional set-up and the respective roles of the legislature, executive and judiciary within it.
This is not the first time that the UK’s most senior judge has intervened in the debate surrounding the Transforming Legal Aid consultation, which closed on 4 June. Back in March, he warned that proposals intended to save £350 million a year by 2015 could end up costing the Government more, with greater numbers of litigants appearing in court without legal assistance, and longer hearings.
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19 June 2013 by David Hart KC
Bank Mellat v HM Treasury [2013] UKSC 38 (CMP: see judgment) and 39 (main: see judgment)
Two sets of judgments today from a 9-judge Supreme Court in the Bank Mellat case. The first explains why the Court adopted a secret procedure in the absence of the Bank (i.e. a Closed Material Procedure) but added that the whole palaver in fact added nothing to their knowledge. The second concludes that financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market were arbitrary and irrational and were also procedurally unfair.
The saga started when on 9 October 2009 the Treasury made a direction under Schedule 7 of the Counter-Terrorism Act 2008 requiring all persons operating in the financial sector not to have any commercial dealings with Bank Mellat. The Treasury said that the Bank had connections with Iran’s nuclear and ballistic missile programme.
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19 June 2013 by Rosalind English
Smith and Others (Appellants) v The Ministry of Defence (Respondent); Ellis and another (FC) (Respondents) v Ministry of Defence (Appellant); Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant) [2013] UKSC 41 – read judgment
The Court has ruled that the negligence claims taken by the families of servicemen injured or killed in Iraq should not be struck out on the ground of combat immunity, and that they were within the UK’s jurisdiction for the purposes of the Convention at the time of their deaths.
The effect of the Court’s decision is that all three sets of claims may proceed to trial. The following summary is based on the Supreme Court’s press report; a full analysis of the judgment will be posted shortly.
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17 June 2013 by David Hart KC
Elvanite Full Circle v. AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), Coulson J read judgment
The Jackson reforms, which are designed to stop lawyers spending too much of their clients’ or their opponents’ money, are still but young, and therefore not yielding much in the way of decided cases. But there were some pilot schemes which are very similar, and this case about one such scheme (in the Technology & Construction Court) is an interesting, and tough, example of why costs budgets must be taken seriously.
Elvanite claimed that AMEC had given them negligent planning advice about waste management. Coulson J dismissed the claim. AMEC sought and got their costs. But, from the judge’s judgment on costs, it seems unlikely that they will recover more than 50% of their actual costs. Why?
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16 June 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn 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. Links compiled by Adam Wagner, post by Daniel Isenberg.
Not our own proposed “Snooper’s Charter” getting the civil liberties groups excited this week, but the all-sensing eyes and ears of the American government. Meanwhile, Europe publishes a useful handbook on asylum and immigration issues; whilst the Strasbourg Court cuts down its growing backlog of cases.
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16 June 2013 by David Hart KC
The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council (Interested Party) [2013] EWCA Civ 673, 276, 14 June 2013 read judgment
This case came before the Court of Appeal earlier this year (read judgment of April 2013, and Rosalind English’s earlier post giving the background), when the landowner Port’s attempts to exclude members of the public from West Beach, Newhaven were unsuccessful. They were defeated by the beach being registered as a “village green” – improbable though that description may sound to those not versed in this arcane bit of the law. The lawfulness of this registration in turn depended on it being established that members of the public had used the beach for at least 20 years “as of right” – i.e. “without force, without stealth and without permission” – an age-old lawyers’ mantra that has mercifully been translated from the original Latin in recent times.
But the earlier hearing before the CA left over for determination one issue, the Port’s contention that they had been deprived of property rights in breach of Article 1 of Protocol 1 (A1P1) of ECHR, because of a retrospective change of the law adverse to them. This is what last week’s decision is about.
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14 June 2013 by Guest Contributor
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment
The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).
Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.
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13 June 2013 by Rosalind English
Association for Molecular Pathology et al v Myriad Genetics Inc, et al, United States Supreme Court 13 June 2013 – read judgment. The headlines are misleading. Myriad Genetics has lost some, but not all of its patent protection as a result of this final ruling in the long running litigation concerning the company’s BRCA 1 and BRCA 2 breast cancer gene patents. According to the American Council on Science and Health, the Court’s decision is
a groundbreaking moment in the history of biotechnology, and a case that will surely rank among the most noteworthy biomedical decisions of our time.
I have posted here, here and here on previous stages in the Myriad patent case, in the United States and Australia, so will not set out the facts again (although for anyone who is interested, the Supreme Court judgment provides a superbly clear explanation of the molecular biology underlying the issues).
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12 June 2013 by Adam Wagner
12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.
As you might expect, the article is as full of arrant nonsense as the new guide – which can be downloaded for free here – is full of useful information. Nonsense like this:
In a list of examples of past cases, it even cites Islamist cleric Abu Qatada’s successful challenge under human rights laws against Home Office attempts to send him back to Jordan to face terror charges
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12 June 2013 by David Hart KC
Queen Mary University of London v the Information Commissioner (1) and Robert Courtney (2) First Tier Tribunal EA/2012/0229 read judgment
Rosalind English has recently posted here on incomplete academic work in the climate change field. This appeal is closely related, in that it concerns a university’s claim to hold on to data from a publicly-funded randomised controlled trial pending peer-reviewed publication.
Between 2005 and 2010 Queen Mary ran a trial into the efficacy and safety of the current treatments for Chronic Fatigue Syndrome/Myalgic Encephalopathy, namely Adaptive Pacing Therapy , Cognitive Behaviour Therapy and Graded Exercise Therapy. £5m of public money was spent, and the perceived benefits (and some of the detriments) were written up into a major article published in the Lancet in March 2011. The upshot, said this article, was that CBT and GET could be safely added to current medical care with a moderate improvement in outcomes. This recommendation has already fed into an interim review of the NICE guidelines on CFS/ME.
However, the data on deterioration within the trial had not been fully published. You could not see how many patients deteriorated in response to each therapy, just the net deterioration over the whole cohort. Our appellant, Mr Courtney, is evidently a bit sceptical about the results of this trial. As he pointed out, the deterioration data had a 20 point difference, whereas the improvement had only to be modest – an 8 point difference. And, he said, how can patients sensibly form a view on treatment without knowing how much deterioration that specific treatment might cause?
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11 June 2013 by Martin Downs
This was the question confronting Judge Hegarty QC in, McMillan v Airedale NHS Foundation Trust [2013] EWHC 1504 QB – read judgment
The answer of the Court was that clear and express words in the contract would be required in order to confer a power to increase a sanction on an Appeal Panel.
The Claimant was a Consultant Obstetrician and Gynaecologist who was involved in a serious untoward incident when a patient suffered significant and uncontrolled bleeding in the aftermath of a successful caesarean delivery which necessitated emergency surgery to remove her spleen. In the aftermath, the Trust’s Medical Director formed the view that the Claimant had not been honest about the care of the patient and had, in fact, given conflicting accounts. This was also the conclusion of a disciplinary hearing which then issued a final written warning and referred the case to the GMC. The Claimant appealed.
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11 June 2013 by David Hart KC
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment
The Divisional Court has now dismissed the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.
The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
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10 June 2013 by Rosalind English
Stephen McIntyre v Information Commissioner (Environmental Information Regulations 2004) [2013] UKFTT 156 (17 May 2013) – read judgment and [2013] UKFTT 51 (7 May 2013) read judgment
These are the latest in a series of freedom of information requests for disclosure of material from the UEA’s Climatic Research Unit (CRU). These requests arose following the ‘climategate’ affair where hacked university emails suggested that individuals within CRU might have attempted to abuse the process of peer review to prevent publication of opposing research papers and evidence. Hence the sensitivity of the data to both requester and CRU, and the passions engendered on these appeals.
Both cases turned on whether disclosure could be denied on the basis of the public interest exception to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material.
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9 June 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular Royal Variety Show 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, there was a flurry of comment and critique on the Ministry of Justice’s paper, ‘Transforming Legal Aid’, human rights abuses both past and present are in the spotlight and there have been some notable decisions from the courts.
by Sarina Kidd
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In the matter of B (a child) (FC) [2013] UKSC 33 – read judgment
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