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’.
See Nearly Legal here and the UKHRB post here.
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
Two interesting speeches made at the Rally for Legal Aid, one by Liberty’s Shami Chakrabarti and the other by comedian Josie Long, can be found here and here.
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 [2013] 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 [2013] 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 [2013] 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 [2013] 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 [2013] 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 [2013] 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
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Why must the powerful constantly interfere in the lives of the less powerful and the unfortunate? When will they learn to temper their failure to understand the individual needs of those disabled through no fault of their own, with a simple common-sense approach to those needs?
I speak from experience. My late husband was disabled through the reckless driving of a drunken driver, but went on to qualify as a doctor and lead a life of service to his fellow men. It took courage, but he never failed to give thanks to those who made it possible by saving his life in the first place, though circumstances and events played their part. Being in the right place at the right time, plus loads of determination helped, but he never forgot those who played such a huge part in his rehabilitation. His accident was at a time when the NHS was run by those dedicated to their jobs and full of confidence in its future; this contrasts to today’s abysmal record of penny-pinching and political correctness gone mad.
My daughter works with those who experience life lived with autism, dyslexia, and similar disabilities. Funding is tight, and getting tighter. The lives of individual victims and their families are being blighted by the interfering busybodies who continue to penny-pinch and increase the work-load of those who want to help, but can’t because finances are not available.
And all this when we are being regaled with the news that those who sit at the top, running the biggest charities, are commanding salaries of over one hundred thousand pounds a year; likewise chief executives of local authorities; and bankers, lawyers and politicians set their own benchmarks that rise by thousands rather than tens or hundreds of pounds a year while the rest of us are told to accept cuts in our standards of living and put up with cold-calling from those charities we support exhorting us to dig even deeper into our pockets and agree to monthly direct debits on top of the amount already given. My instincts tell me to tell them: ‘A pox on all your houses.’ and give only to those small charities without grand addresses and expensive advertising programmes.
I’ve tried at length to understand why the High Court was not bound by the result in Gorry. Laws’ explanation does not really make sense as far as I can see.
The possibilities seem to be either:
1) Gorry was about children, and this was about adults. (The government seem to be taking this view). I can’t see that the distinction in meaningful.
2) Gorry was about the private sector, this is about social housing. Again, there’s no meaningful basis to make this distinction. If anything the discrimination is worse from the bedroom tax as it cuts HB below the relevant amount that would be payable for the same property in the private sector.
Gorry already held that DHPs (and the other factors) are no justification. As far as I’m concerned there is a strong case Gorry is the authority of a higher court on that point and should be followed by tribunals deciding bedroom tax cases with disabled people unable to share. But given that Laws has held that the regulations are valid, it’s hard to see what the remedy would be.
In the Nicklinson and others judgment, the court itself pointed out that Parliament had merely amended Suicide Act 1961 section 2 – (paras 21 and 153 of the judgment refer).
A ‘necessity’ defence was rejected but the judgment did not seem to me to really set out the basis for arguing that there ought to be a necessity defence. ‘Necessity’ surely involves the need to act where there is no true alternative.
Will the case get to the Supreme Court? For my part, I do not really see why it should. The courts have been clear in saying that Parliament must resolve this matter. It is not for the courts to determine these difficult problems where opinion is massively divided. Whilst the Supreme Court might take a different view, I do not see why it should.
As for tweaking the DPP’s guidance, one could go on forever. Lord Judge was surely right on this point.
“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’. ”
It’s worse than that. By finding as it did, the court effectively made a declaration that disabled people are subordinate; that they should not be given full and strong human rights. The courts observe the law reluctantly when defending the human rights of criminals or suspected criminals, but then hold back when defending the human rights of vulnerable and innocent people.
Foolish, ignorant and oppressive old men who, not for the first time, betrayed their ugly mind-set of Social Darwinism. I have no respect for them.