Monthly News Archives: July 2013


Disabled challenge to bedroom tax fails

31 July 2013 by Rosalind English

first-home-buyersMA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment

The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.

The arguments

This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ).  These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities.
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Appeal court shies away from right to die issue

31 July 2013 by Rosalind English

the-diving-bell-and-theR (on the application of) Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961   – read judgment

The Court of Appeal has today unanimously dismissed appeals by Jane Nicklinson and Paul Lamb challenging the legal ban on voluntary euthanasia.

We have posted previously on the Hight Court ruling in the Nicklinson case, here and here. The following is based on the Court’s press summary. An analysis of this case will follow shortly.

Summary of the facts and the ruling

These appeals concern two individuals who suffer from permanent and catastrophic physical disabilities. Both are of sound mind and acutely conscious of their predicament. They have each expressed a settled wish to end their life at a time of their own choosing in order to alleviate suffering and to die with dignity.
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Standing and judicial review: why we all have a “direct interest” in government according to law – Dr Mark Elliott

30 July 2013 by Guest Contributor

RCJ restricted accessAccording to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:

We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.

This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.


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Immigrants Go Home, the Third Source & Judicial Review Standing Changes – The Human Rights Roundup

29 July 2013 by Daniel Isenberg

Human rights roundup (IGH)Welcome back to the UK Human Rights Roundup, your regular social media storm of human rights news and views. 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.

With the judges winding down for their end of term break, this is not such a busy week of news; so instead a good opportunity to think over the role of the European Convention on Human Rights.  Various immigration stories keeping the commentators busy, if not making the headlines; and keep up-to-date in public law with the latest from the ALBA conference.

Reminder: there is a Rally for Legal Aid  tomorrow, Tuesday 30 July, 4:30-6:30 at the Old Bailey. Full details here.


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Keep it short, judges: no need to churn to earn

27 July 2013 by David Hart QC

zq5cNeumanns v. Adronikou [2013] EWCA (Civ) 916, 24 July 2013  read judgment

This time of year, high court and appellate judges will have been trying to clear their desks – to stop the complex half-finished judgment from skulking around in their minds and spoiling their holidays.

So they must relish this advice from Mummery LJ, a long-standing member of the Court of Appeal, about brevity – in particular, what to do when the CA is dismissing an appeal from an immaculate judgement below: 

What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

Quite so.

But Mummery LJ did a little more than this in an attempt to stifle down at least some of the words pouring out from the courts, as we shall see.

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HS2 challenges fail but powerful dissent

26 July 2013 by David Hart QC

_65547471_65547470R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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Second Christian B&B case headed for the Supreme Court

23 July 2013 by Alasdair Henderson

black and morganBlack and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.

The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull [2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court. 

This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.

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Putting a ring on it, Constitutional Carnage and Court Transparency – The Human Rights Roundup

23 July 2013 by Sarina Kidd

Screen Shot 2013-07-23 at 08.21.56Welcome back to the UK Human Rights Roundup, your regular summer thunderstorm of human rights news and views. 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 Sarina Kidd.

This week, the government’s controversial legislation on same sex marriage received Royal Assent. And, as we welcome a new royal baby, less glamorous facets of the UK’s constitutional arrangements have been in the news.


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Transforming Strasbourg’s A1P1 right to property?

20 July 2013 by David Hart QC

private-property“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen.  He declares his position up front: 

“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”

These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects

thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.

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UK court ducks position on circumcision

20 July 2013 by Rosalind English

605islamSS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment

This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.

This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.
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Permission to amend after expiry of time limits – and an unfair hearing

18 July 2013 by David Hart QC

dunmow-map-alldev2Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013read judgment

There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months  (see my post on this last point) and the permission hurdle to clear.

Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?

The conundrum in this case was – what to do about a set of grounds (drafted by lawyers)  filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.

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Is complicity with the death penalty illegal? – Dr Bharat Malkani

17 July 2013 by Guest Contributor

Texas-death-chamber-007In a previous blog post on these pages, the case of Lindsay Sandiford was examined. Sandiford – a British citizen facing the death penalty in Indonesia – had asked the UK Government for funding to help her appeal, but was refused financial help. The Court of Appeal ruled in favour of the Government, stating that the decision to provide legal aid to a British citizen abroad is a discretionary matter for the executive.

Regardless of whether one agrees with the decisions of the Government and the Court, the case raises interesting questions about the obligations that are imposed on states that have abolished the death penalty. The primary duty on states is to simply refrain from imposing the death penalty, but it is possible to detect an emerging secondary obligation to refrain from facilitating the use of the death penalty elsewhere. This issue is particularly relevant to the UK, because although the UK takes a leading role internationally in campaigning for the abolition of the death penalty, there is evidence that the UK has on occasion aided the use of capital punishment elsewhere.

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No witness immunity for the Forensic Science Service

15 July 2013 by Rosalind English

bigstock_Smoking_Gun_4399171Thomas James Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783 – read judgment

There was evidence in this case that employees of the Forensic Science Service had altered the exhibit numbers on the evidence in question, possibly to cover up their mistake.

The appellant challenged an order of the court below striking out his claim that the respondent (the FSS) had acted negligently and in breach of his rights under Article 8 of the European Convention on Human Rights.

Factual background

The police had searched the appellant’s home for drugs. During the search, the officers found a bullet which the appellant claimed he had bought as an ornament, assuming it not to be live. Whether it was live could not be discerned from a visual examination, and it was sent to the FSS for analysis.
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Home Office may detain illegal entrant who appears to be over 18

15 July 2013 by Rosalind English

Border-AgencyR (on the application of AA) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2013] UKSC 49 – read judgment

The Immigration Act 1971, Schedule 2, paragraph 16(2) (“paragraph 16”) empowers the Home Secretary, acting through immigration officers, to detain a person if there is reasonable ground to suspect that he is liable to be removed as an illegal entrant to the United Kingdom. Section 55 of the Borders, Citizenship and Immigration Act 2009 (“section 55”) imposes duties regarding the welfare of children on the Secretary of State and immigration officers in all immigration matters. The issue on this appeal was whether section 55 rendered the appellant’s detention for a period of 13 days unlawful, in circumstances in which the respondent acted in the mistaken but reasonable belief that the appellant was aged over 18.
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Whole Life Tariffs, No Litvinenko Inquiry & Keeping Things Quiet – The Human Rights Roundup

15 July 2013 by Daniel Isenberg

litvinenkoWelcome back to the UK Human Rights Roundup, your regular Swiss Army Knife of human rights news and views. 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.

The focus of this week’s news was on the European Court on Human Rights’ views on whole life tariffs and miscarriages of justice, which has fed into the recent Abu Qatada deportation and continuing questions about the relationship between the UK, the Convention and the Court. Elsewhere, the Attorney-General was deemed to have lawfully exercised his override to suppress disclosure of Prince Charles’ letters, and there will be no public inquiry into the death of Litvinenko.

Supreme essay success

Top billing this week comes from our very own Daniel Isenberg’s fantastic winning essay in the UK Supreme Court, which has now been published on Guardian.co.uk – Do we need more or fewer dissenting voices in the UK supreme court? [Daniel did not put his own essay in top billing, it was me – but from everyone at UKHRB, we wish him hearty congratulations! Adam]

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