Monthly News Archives: October 2014


Consultation duty gets to the Supreme Court

29 October 2014 by

NL33293-039Moseley R (ota) v. London Borough of Haringey [2014] UK 56  – read judgment

Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?

The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.

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Removal of subsidy for spare room not unlawful

29 October 2014 by

Bedroom taxCotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  [2014] EWHC 3437 (Admin) – read judgment

Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156.

Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the  rights of singe parents under Article 8 ECHR  who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall.
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Three strikes and out? Major defeats for Government Judicial Review reform plans in the Lords

28 October 2014 by

Pannick Faulks

Lords Pannick and Faulks

Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.

Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.

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Government not required to disclose full details of defence

27 October 2014 by

blind justiceCF v The Ministry of Defence and others [2014] EWHC 3171 (QB) – read judgment

Angus McCullough QC of 1 Crown Office Row acted as Special Advocate in this case. He has nothing to do with the writing of this post.

The High Court has ruled that in a case against the state which did not directly affect the liberty of the subject, there was no irreducible minimum of disclosure of the state’s case which the court would require. The consequences of such disclosure for national security prevailed.

Factual and legal background

The claimant, Mohammed Ahmed Mohamed, had made a number of claims against various government departments, alleging complicity in unlawful and arbitrary detention and inhuman and degrading treatment and torture on the part of British authorities in Somaliland.  He also sought damages for trespass, breach of the Human Rights Act 1998, and misfeasance in public office. As Irwin J said,

The remedy sought is not confined to ordinary compensation, but extends to damages for breach of the Convention and to declaratory relief, which in the context of this case, and if the Claimant succeeded, would represent an important marking of unlawful behaviour: a matter in which there is a legitimate public interest.

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Barclay bros duck out – leaving Supreme Court to sort out the constitutional problem

25 October 2014 by

sark aerialR (ota) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2014] UKSC 54 – read judgment

 The Supreme Court has just ruled on a case which appeared before the Administrative Court on the judicial workings of Sark, and the power of the ruling body to alter the pay of the local judge (known as”Seneschal”). The Administrative Court had thought this was potentially open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention – read judgment and Rosalind English’s post here.

But things took a different turn in the Supreme Court. For reasons unexplained, the Barclay brothers (who own these island just off Sark) dropped out of the case, and none of the remaining parties sought to uphold the judgment of the Administrative Court. The Article 6(1) point was not adjudicated upon, and the case became a constitutional one. The Channel Islands are not part of the UK, and have their own legislatures, though they act internationally by the UK Government.

In those circumstances – how should a UK Court go about reviewing the London approach to reviewing a measure put forward by an independent legislature?

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Kenyan President uses Tory human rights plans to defend war crimes charges

24 October 2014 by

Photo credit: Guardian.co.uk

Photo credit: Guardian.co.uk

It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.

This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.

Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving 1,200 dead and 600,000 displaced.

He has recently stepped down in order to face the charges. He made a speech to the Kenyan Parliament (PDF) on 6 October strongly asserting Kenya’s “sovereignty”, and in doing so he said this:
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“UK must not think only of itself”: Massacre families urge UK not to leave ECHR – Alice Donald

24 October 2014 by

Photo credit: Guardian.co.uk

Photo credit: Guardian.co.uk

The Conservative Party’s proposals to introduce a British Bill of Rights and Responsibilities that would weaken the UK’s obligations under the European Convention on Human Rights (ECHR) – and the legal chaos that would ensue if it was ever enacted – have been hotly debated. The proposal makes clear that if the Council of Europe was to reject the UK’s unilateral move, as it would be bound to, the UK ‘would be left with no alternative but to withdraw’ from the Convention. 

The policy is highly isolationist. The brief section on the ‘international implications’ of the plan does not pause to consider the impact of withdrawal on the other 46 states on the Council of Europe or the Convention system as a whole. Nor does it address the implications for the UK’s ability to promote human rights and the rule of law in countries with significantly worse human rights records.

This is despite the evident risk of contagion to newer Council of Europe states. The Council of Europe Commissioner for Human Rights, Nils Muižnieks, has argued that if the UK persists in its disrespect for the Strasbourg Court, exemplified by its protracted non-compliance with the judgment on prisoners’ voting rights, this would

… send a strong signal to other member states, some of which would probably follow      the UK’s lead and also claim that compliance with certain judgments is not possible,     necessary or expedient. That would probably be the beginning of the end of the   ECHR system.

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Anorexia, alcoholism and the right to autonomy

22 October 2014 by

imagesA NHS Foundation Trust v Ms X (By her litigation friend, the Official Solicitor), 8 October 2014  [2014] EWCOP 35 – read judgment

The issues that arose before the Court of Protection in this case encapsulate the difficulties involved in applying legal tools to the organic swamp of human pathology. Everything that one may envisage, for example, in planning a “living will” (or, more precisely, an Advance Decision under the Mental Capacity Act), may have no application at the critical time because the human body – or rather the way it falls apart – does not fit in to neat legal categories. In such a situation it is often the right to autonomy that is most at risk, since what you plan for your own medical and physiological future may not square with what the authorities you decide you were capable of planning. Cobb J’s sensitive and humane judgement in this sad case is a very encouraging sign that courts are beginning to resist the tyrannous claims of Article 2 and the obligation to preserve life at all costs.

Factual and legal background

Ms X, a young woman who lives alone in a private rented bed-sit, has suffered from anorexia nervosa for the last 14 years. She also suffers an alcohol dependence syndrome which has caused chronic and, by the time of this hearing, “end-stage” and irreversible liver disease, cirrhosis; this followed many years of abuse of alcohol. The combination of anorexia nervosa and alcohol dependence syndrome is unusual, and has always been medically acutely difficult to manage. This is a vicious cycle of self destructiveness and treatment, and as Cobb J observed,

The causes of her distress are multi-factorial but include the treatment for her anorexia itself and the removal of her personal autonomy when treated

So damaging had been the previous admissions for compulsory feeding, her doctors regarded it as “clinically inappropriate, counter-productive and increasingly unethical”  to cause her to be readmitted; their experience revealed that on each recent admission, she had been more and more unwell (as a result of her anxiety to reverse the weight gained in hospital during the previous visit, combined with renewed alcohol abuse).  In fact Ms X had been on an ‘end of life pathway’ twice in recent months and it was said that her physical condition “is now so fragile that her life is in imminent danger.”
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British Jihadists and treason

21 October 2014 by

remember-remember-the-fifth-of-november-gunpowder-treason-and-plot-i-see-no-reason-why-gunpowder-treason-should-ever-be-forgotThe news last week was that the Foreign Secretary has proposed a revival of a fourteenth century statute in order to prosecute British jihadists who travel to Iraq or Syria to fight. Cries of foul are coming from the usual quarters, and there’s even a protest that the Strasbourg Court would object, which, given the current controversy surrounding that tribunal, may be a good reason in itself for such a move.

In the current froth over the Convention versus “home grown” human rights, there is much talk of the Magna Carta. So may be of interest to some that in the opinion of one of the greatest legal scholars in history, Edward Coke, the Statute of Treason had a legal importance second only to that of the “Great Charter of the Liberties of England”, piloted by feudal barons to limit King John’s power in 1215.

Politics aside, how would this work? On the face of it, a law which has been on the statute books for centuries, and is found to be applicable to a current state of affairs, is an equum donatum whose dental health should not be examined too closely. Although the last person to be convicted under the 1351 Treason Act – the Nazi propagandist William Joyce (otherwise known as Lord Haw Haw)- was hanged, now any British citizen convicted of the offence could be given a life sentence.
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Tory Plans to Repeal the Human Rights Act: the Legal Community Responds – the Human Rights Roundup

19 October 2014 by

Tory HRRWelcome back to the UK Human Rights Roundup, your regular kicking collection of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

This week, the legal community reacts to Tory plans to repeal the Human Rights Act. Given the significance of the proposals for human rights protection in the UK, this week’s roundup focuses on how those plans have been received. 
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Munchausen, MMR and mendacious “warrior mothers”

15 October 2014 by

andrew-wakefieldA Local Authority and M (By his litigation friend via the Official Solicitor) v E and A (Respondents) [2014] EWCOP 33 (11 August 2014) – read judgment

It’s been an interesting week for the extreme fringes of maternal care. The papers report a trial where a mother is being prosecuted for administering toxic levels of medication to her daughter for “conditions that never existed” (as the court heard). Let’s see how that pans out.

And now the Court of Protection has published a ruling by Baker J that a a supporter of the discredited doctor Andrew Wakefield embarked on an odyssey of intrusive remedies and responses to her son’s disorder, fabricating claims of damage from immunisation, earning her membership of what science journalist Brian Deer calls the class of “Wakefield mothers.”

On the face of it, the detailed and lengthy judgment concerns the applicant son’s reaction to the MMR vaccination when it was administered in infancy, and whether it was the cause of his autism and a novel bowel disease, the latter being Wakefield’s brainchild.  But at the heart of the case lies the phenomenon that we all used to know as Munchausen’s syndrome by proxy.

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Consultation process not unfair after all, says Court of Appeal

12 October 2014 by


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWCA 1271 (Civ) – read 
judgment

Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant  challenge is not an easy task. Three connected problems commonly arise:

(1) did the public body provide adequate information to enable properly informed consultation 

(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?

(3) did the consultation encompass sufficient alternatives?

In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).

The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.

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The UK in the European Convention: fudge, or a shining example?

9 October 2014 by

DSC02566Brick Court Chambers Public Law Event 2014: Is it time for the common law to break free from Europe?

Last night’s discussion at Gray’s Inn Hall featured a panel with  Dominic Grieve QC MP (formerly Attorney General), Lord Judge (formerly Lord Chief Justice), Bella Sankey (Policy Director, Liberty), Martin Howe QC (member of the Commission on a British Bill of Rights), David Anderson QC (Independent Reviewer of Terrorism Legislation), all chaired by  Shaun Ley of the BBC.

The Conservative Party’s proposal which sparked off the debate  was that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts our proposal that our own common law and statute fulfils the UK’s international obligations.

Martin Howe, a QC most closely involved with this move, simply didn’t understand why it has caused such a “furore”.  Other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. What is so inadequate about the UK’s protection of rights that it should be shackled to Strasbourg, particularly with that court’s history of spending the past sixty years

 inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording

This is an intolerable situation, Howe believes, and it has to be resolved.
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Asbestos victims successfully challenge change in conditional fee/ATE costs rules

8 October 2014 by


malignantmesothelioma1Whitston (Asbestos Victims Support Victims Support Groups Forum UK)  v Secretary of State for Justice and the Association of British Insurers (Interested Party) [2014] EWHC 3044 – read judgment

Jeremy Hyam and Kate Beattie of 1 Crown Office Row acted for the Claimant in this case. They had nothing to do with the writing of this post.

In April 2013 the rules permitting recovery of success fees under Conditional Fee Agreements (CFAs) and After The Event (ATE) insurance premiums changed in response to the Jackson proposals – with one exception, namely in respect of mesothelioma claims.

This case concerns the Lord Chancellor’s intention to bring costs rules in mesothelioma claims in line with other claims.

As many of you will know, mesothelioma is an industrial disease caused by the inhalation of asbestos. It is a rare form of cancer which  generally does not become apparent until many years after exposure to asbestos, a feature which at least in the past has led to real problems when mounting a claim against those responsible for the exposure. Once the cancer does become symptomatic its progression is rapid. Most sufferers survive for less than 12 months from the onset of symptoms. Yet the effects of the disease over the period from the onset of symptoms to death are hugely painful and debilitating. This combination of factors means that litigation in relation to mesothelioma is unusual in comparison with many other types of litigation involving personal injury or industrial disease. In almost every case in which a claim is made for damages for mesothelioma the effective defendant is an insurance company.
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The patentability of living things: the latest in the BRCA gene saga

7 October 2014 by

298x232-dna_genetic_test-298x232_dna_genetic_testD’Arcy v Myriad Genetics Inc [2014] FCAFC 115 (5 September 2014) – read judgment The recent ruling from the Full Federal Court of Australia allowing the breast cancer gene isolated in the laboratory to be patented contrasts sharply with the ruling by the US Supreme Court last year that a naturally occurring DNA segment is a “product of nature” and therefore not patent eligible merely because it has been isolated. The implications of this ruling for gene testing and patenting of biological products have been eloquently discussed elsewhere and I will not attempt to cover the same ground – see for example the excellent discussion posted by the Enhanced Genetic Services Project. All I want to point up in this post – apart from the obvious need for intellectual property law to encompass the development of science and technology – is the Australian court’s focus on how easily misled one may be by semantics in this sort of dispute. This ruling upholds an earlier decision that gene patenting is permissible under Australian law, declaring that “the boundaries of the conception of patentability are not dictated only by deductive logic from the linguistic premises formulated in the scientific knowledge of a particular age”. The concept of patentability has been broadening since the first quarter of the 17th century, and there is no reason why it should reach an artificial wall erected by unfathomable and unexplained “laws of nature” (a premise much relied upon by the US Supreme Court). I posted last year on the decision of the US Supreme Court in Association for Molecular Pathology v Myriad Genetics Inc. It will be remembered that that Court held that a sequence of DNA mimicking the BRCA breast cancer mutation could not be patented because DNA’s information sequences and  all the other processes that allow the information to manufacture bodily tissues occur naturally within human cells. 
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