Monthly News Archives: October 2013
23 October 2013 by David Hart KC
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013 read judgment
I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won.
The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).
The application was conspicuously unsuccessful, as we shall see, but what was all this about? Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.
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23 October 2013 by Rosalind English
R v Gul (Appellant) [2013] UKSC 64, 23 October 2013 – read judgment
It is a platitude that one man’s terrorist is another man’s freedom fighter. It is for precisely this reason that the international community has not been able to agree on a definition of terrorism to be embedded in international law.
The issue in this appeal was whether the definition of ‘terrorism’ in the UK Terrorism Act 2000 includes military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict.
The following is taken from the Supreme Court’s press summary. References in square brackets are to paragraphs in the judgment.
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22 October 2013 by
R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England [2013] EWHC 3055 (Admin) – read judgment
Where a patient, detained in hospital under Section 3 of the Mental Health Act 1983, takes their own life, Article 2 imposes procedural obligations on the State to investigate the circumstances of the death. These obligations are fulfilled by a coroner’s inquest. Unlike in prison and police station deaths, there need not be any independent investigation system prior to the inquest stage, and nor does Article 2 require one.
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21 October 2013 by Rosalind English
There have been many interesting contributions to the debate triggered by Geraldine van Beuren’s fascinating guest post on the right to food.
But one comment deserves prominence in a post of its own. It comes from veteran blogger 1923thebook and he has this to say:
Growing up in the North of England in the 1920s and 1930s, I knew hunger as did my ancestors who despite the “charter of the forest” lived miserable, hungry, short lives while Britain’s ruling classes grew fat on the spoils of Empire. What I experienced as a lad along with the rest of my working class generation was famine and despite recent news reports, we are not experiencing the wide spread hunger that occurred in my youth when there was no social welfare state.
This is not to say that there is not hunger in today’s Britain because as joblessness increases poverty creeps back into this nation’s villages and cities like an ebb tide. But malnutrition today is not caused by want of food but the type food on offer to the poor which is empty of nutrition but rich in fat, sodium and chemicals that only a food scientist without a moral conscience could devise.
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21 October 2013 by Rosalind English
The proposed new extension to the six week badger cull has been defended on the basis that insufficient numbers of the animals in Gloucestershire have presented themselves to the marskmen’s bullets.
This proposal is now under attack from two directions. The chief scientific adviser for Natural England, the body responsible for licensing the cull, has called upon the government to stop the badger cull immediately. According to Damien Carrington writing in the Guardian,
The intervention by David Macdonald, chair of NE’s science advisory committee and one of the UK’s most eminent wildlife biologists, is a heavy blow for the environment secretary, Owen Paterson, and the National Farmers’ Union, who argue that killing badgers to curb tuberculosis in cattle is scientifically justified and necessary.
The Badger Trust is also sharpening its knives for fresh legal challenge. Its lawyers at Bindmans have written to Natural England and DEFRA, pointing out that the policy that DEFRA successfully defended in the Trust’s original judicial review , was based on “effectiveness”:
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20 October 2013 by Guest Contributor
At first glance, prisoner voting proponents may interpret the Supreme Court’s R (Chester) v Justice Secretary decision (see Adam Wagner’s previous post) as a defeat for advancing prisoner voting rights in the UK. This blog post offers a different perspective. By comparing Chester to the seminal US Supreme Court case of Marbury v. Madison, we summarise that such proponents should take a step back and see the wood, rather than merely the trees. This is because Lord Mance’s Chester judgment offers human rights advocates, and therefore supporters of prisoner voting rights, an unequivocal foundation from which to defend future human rights claims.
Chester does not achieve the same ends as Marbury. Marbury established the institution of judicial review in the United States, against Congressional legislation. Chester does not disturb the supremacy of the UK Parliament. Comparison arises within the strategies of the leading judgments in each case. Chief Justice Marshall’s judgment in Marbury is celebrated not only for its conclusion, that the Constitution of the United States is the highest form of law and therefore “it is emphatically the province and duty of the judicial department to say what the law is”, but also for how it reached that conclusion.
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20 October 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular chocolate fondu of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
The issue of prisoner votes returned to the courtroom this week, with an unsurprising judgment on many fronts. Meanwhile Lord Neuberger made his views known on how access to justice forms a crucial component of the rule of law; and commentators discuss why public bodies can’t bring claims under the HRA.
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18 October 2013 by Guest Contributor
People are going hungry in England because England, to the detriment of the poor, has forgotten its legal history.
Nearly eight hundred years ago, in 1216 English law first recognized a right to food. Yet between April and September this year over 350,000 people received three days’ emergency food from the Trussell Trust food banks, triple the numbers helped in the same period last year.
Although justifiable outrage has been expressed at this increasing hunger in 21st century England, such hunger has not been regarded as an issue of human rights law, but only of charity. The United Nations, however, has made clear that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights.
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18 October 2013 by Rosalind English
F v F [2013] EWHC 2683 (Fam) – read judgment
The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.
This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.
Background
Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely.
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17 October 2013 by David Hart KC
David Mead, in an interesting post – here – about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1.
As Mead points out, the judge was probably wrong to do so. On the face of it, the ODA had no rights under the Convention, under A1P1 or otherwise, because it was a public authority, and was likely to be acting as such in its protester-clearing role. One can perhaps save the judge’s blushes, by a slightly different route. The right of free speech under Article 10(1) has to be balanced against the protection of the rights of others under Article 10(2), and the latter would cover the ODA’s property rights which it was enforcing.
But the more fundamental question is why public authorities (think local authorities or NHS Trusts) cannot complain that they are HRA victims. After all, they can be unfairly dumped on by central government, can be lied about, can have their finances cut, their functions or their premises taken away (hospital unit closures), can receive an unfair trial, and ultimately lose their “life” in some governmental reorganisation.
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17 October 2013 by Guest Contributor
On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.
The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.
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16 October 2013 by Rosalind English
R (on the application of Maya Evans) v Secretary of State for Defence, with Associated Press intervening [2013] EWHC 3068 (Admin) – read judgment
In “Evans (No. 1)”, a 2010 case concerning the transfer of suspected insurgents for questioning in certain military centres in Afghanistan, the High Court had ruled, partly in an open judgment, partly in closed proceedings, that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without risk of ill treatment (which is contrary to UK policy), but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul. It was subsequently discovered that there had not been jurisdiction to follow a closed procedure in that case, but what was done could not be undone, so the confidentiality agreements and the closed judgment remained in force.
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16 October 2013 by Adam Wagner
R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland) [2013] UKSC 63 – read judgment / press summary
The Lord Chancellor Chris Grayling recently told The Spectator that he wants “to see our Supreme Court being supreme again“. In light of his respect for the court, he should read today’s judgment on prisoner votes very carefully indeed, as should David Cameron who has already endorsed the decision as a “great victory for common sense”.
The Supreme Court dismissed two claims by prisoners who argued their European Convention (Chester) and European Union (McGeogh) rights were being breached because they weren’t allowed to vote in various elections. I won’t summarise the detail of their arguments, which can be found in our previous posts on the Court of Appeal and Scottish Outer House Court of Session decisions.
We will aim to cover the substance of the decisions in due course. But what I find really interesting was the Justices’ views on the European Court’s various decisions on prisoner votes, which the Government argued were poorly reasoned.
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15 October 2013 by David Hart KC
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
Forgive me for returning to this case, but it raises all sorts of questions. On the face of it, it concerns 2 specific environmental directives, but it has implications for costs generally in environmental cases.
And why do I go on about costs? Because the prospect of being seriously out of pocket deters even the most altruistic environmentalist if they lose. Some may be purely NIMBYs, but most have a rather wider sense of the things that matter and that is not just about protecting their own assets. Claimants are normally up against public authorities and/or developers, so the balance of power has to be struck in the right place between them.
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15 October 2013 by Rosalind English
Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity) [2013] UKEAT 0401_12_0410 4 October 2013 – read judgment
These appeals, heard at the same time, raise the question whether someone employed in the UK by a foreign diplomatic mission as a member of its domestic staff may bring a claim to assert employment rights against the country whose mission it is, despite being met by an assertion of State Immunity under the State Immunity Act 1978. The EAT regarded itself bound by the supremacy of EU law to disapply the SIA, despite the fact that it had no jurisdiction to do so under the 1998 Human Rights Act.
This is the first time that the full force of the rights contained in the EU Charter of Fundamental Rights and Freedoms has made itself felt in a domestic dispute between private parties (although the embassies themselves are state institutions, as an employment dispute the matter is one of private law only). If upheld on appeal, this ruling will have consequences that extend far beyond the somewhat esoteric area of the immunity of diplomatic missions, and will make the effect of the Human Rights Act look puny by comparison (as pointed out by Joshua Rozenberg in his post on this case).
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The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013 read judgment
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