Disability Discrimination, Judicial Review Standing and Right to Die – The Human Rights Roundup
4 August 2013
Welcome back to the UK Human Rights Roundup, your regular heat wave 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.
A fairly quiet week in terms of volume, but nevertheless some notable issues. Of note are plans to restrict judicial review, the ‘bedroom tax’ judgment, and a key decision in the ongoing debate on assisted suicide.
In the News
Disability Discrimination and the ‘Bedroom Tax’
This week’s ‘bedroom tax’ judgment in the High Court has been seen by a number of critics to be a severe blow to disabled tenants in council and housing association accommodation.
Changes to housing benefits regulations came into force in April, and this week, 10 families brought a judicial review case over the lower payments for people in homes deemed too large. Ministers argue that this change will control welfare costs and free up social housing. However, critics have countered that it will be detrimental to households with disabled occupants who require the extra space for health reasons.
Lawyers representing the families argued that the cuts violate the Human rights Act and Equality Act. Nevertheless, the court found that it did not unreasonably discriminate against disabled people. Kate Webb, writing for Shelter, calls the verdict ‘disappointing’ and that the judge did not ‘engage with the limitations of relying on a short term and unpredictable approach to safeguard disabled people’. Further, whilst the offer of additional Discretionary Housing Payments were seen as adequate, the funds, in reality, will only be able to support 5% of those affected by the tax. Unlike what was previously claimed, this will not just be given to disabled people.
Thinking Legally goes further in its discussion of the verdict, stating that it is ‘an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the ECHR’.
Judicial Review Curtailment
The Ministry of Justice has announced plans to restrict the test for standing in judicial review cases with a requirement of ‘direct interest’ instead of the current ‘sufficient interest’.
Mark Elliot discusses the implication of such a decision and looks at the current criteria. Writing in defence of judicial review, he notes that ‘it is now fashionable to dress up everything in public law in the language of rights, administrative law is fundamentally not about individual rights: it is about public wrongs’. Further, whilst politicians often refer to judicial review as undemocratic because of the role of unelected judges, he argues that a true democracy calls for those who wield public power to be held to account.
David Blackburn, writing for The Spectator, agrees with Elliot that judicial review is actually about ‘the rule of law and representative democracy’ but does wonder whether there is a case for the system being a little tighter. This is due to what he calls the abuse of the system by politically motivated groups, ‘many of which do not bother with the representative system at any level; and are, therefore, unaccountable to everyone except themselves’.
Judicial Review is also up in the air in Scotland, where there has been a recommendation (which has been taken forward by the Scottish Government) that there also be a leave requirement and a three month time limit. Aileen McHarg analyses what the repercussions of this would be and concludes that ‘it is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis’.
The Right to Die
Three cases revolving around the right to die were decided upon in the Court of Appeal this week (judgment here). Whilst the family of late locked in syndrome sufferer Tony Nicklinson and paralysed road accident victim Paul Lamb (pictured) lost their right to die challenges, a third (represented by 1 Crown Office Row’s Philip Havers QC) won his case seeking clearer prosecution guidance for health workers who help others die. However, the Court of Appeal made it clear that with issues that involve life and death, Parliament represents ‘the conscience of the nation’ and that ‘judges, however eminent, do not: our responsibility is to discover the relevant legal principles and apply the law as we find it’.
Obiter J notes that Parliament has so far made no move to amend the Suicide Act 1961. It can even be seen to have affirmed the prohibition against assisted suicide by amending section 2 by the Coroners and Justice Act in 2009.
The UKHRB has a post here on the issue.
Rally for Legal Aid speeches
In other news
- David Allen Green offers a thought provoking analysis on the fate of Alan Turing, ‘the national hero and genius of the first order who was prosecuted in 1952 because of his homosexuality and ‘chemically castrated’ as a sanction of the state’. Turing was prosecuted under section 11 of the Criminal Law Amendment Act 1885.
- The UK Crime blog looks at the case of two jurors imprisoned for internet research and facebook messages, noting that ‘some are of the view that a custodial sentence is wholly unsuitable and totally unnecessary in cases like this’.
- The Appeal Court has criticised the lawyers of refugees who were wrongly jailed for carrying false documents and fleeing their countries under threat of persecution, who seemed not to know that there was a valid defence to protect those in fear of losing their lives or freedom.
- The British Institute of Human rights has just published a factsheet – available here.
- Marc de Ward looks at this week’s Strasbourg cases. This week focuses on whether big companies should be protected under a treaty that protects fundamental human rights, refugees, presumptions of innocence and lawyer-client confidentiality.
In the Courts
- Nicklinson & Anor, R (on the application of) v A Primary Care Trust  EWCA Civ 961 (31 July 2013) August 2, 2013
Court of Appeal refuses to develop defence in to murder for assisted suicide but does rule DPP prosecution guidance for assisters needs to be clearer
- Navaratnam v Secretary of State for the Home Department  EWHC 2383 (QB) (31 July 2013) July 31, 2013
Refusal of leave to asylum seeker successfully challenged removal in Strasbourg not conspicuously unfair despite committee of ministers thinking he had been granted 6 months
- MA & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors  EWHC 2213 (QB) (30 July 2013)July 30, 2013
Judicial Review challenge to the effect of the ‘bedroom tax’ Housing Benefits changes on disabled recipients of the benefits fails. No breach of Equality Act or Art 14 ECHR
- TD, R (on the application of) v The Commissioner of Police for the Metropolis & Anor  EWHC 2231 (Admin) (25 July 2013) July 25, 2013
Retention of police records for nine years (and counting) re alleged sexual assault but no charge is lawful and does not breach Article 8 ECHR, for now
- Modaresi, R (on the application of) v Secretary of State for Health  UKSC 53 (24 July 2013) July 24, 2013
Supreme Court: Hospital’s failure to transmit woman’s mental health detention review application to tribunal not a breach of Article 5 ECHR – she has adequate access to a court
- X, R (on the application of) v London Borough of Tower Hamlets  EWCA Civ 904 (24 July 2013) July 24, 2013
Council policy that family foster carer receives less money than she would receive as an unrelated foster carer looking after the same children was unlawful. Court of Appeal affirms High Court decision
To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.
- EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts
ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm
- Rihanna wins against Topshop but does she have a right to her image? – August 2, 2013 by Emily Goodhand
- No trade unions for clergy if the Archbishop says no, rules European Court – August 1, 2013 by Alasdair Henderson
- Disabled challenge to bedroom tax fails – July 31, 2013 by Rosalind English
- Appeal court shies away from right to die issue – July 31, 2013 by Rosalind English
- Standing and judicial review: why we all have a ‘direct interest’ in government according to law – July 30 2013 by Dr. Mark Elliott