Monthly News Archives: July 2015


Sport, public/private law, and a judge waxing lyrical – Diarmuid Laffan

31 July 2015 by Guest Contributor

imageO’Connell & anor v the Turf Club [2015] IESC 57read judgment

This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this jurisdiction’s legal debate, that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.

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Justice Human Rights Conference, 12 October 2015

31 July 2015 by Adam Wagner

-0430-POLITICS-Justice.-006Here at the UK Human Rights Blog, we love justice, and we also love JUSTICE. Let’s all go to their annual conference, 12 October 2015. All details here and below.

One of the highlights of the human rights lawyer’s calendar, the JUSTICE Annual Human Rights Conference offers a key opportunity to update your legal knowledge and gain valuable insight into the human rights issues of the year.

The Rt. Hon. Sir Brian Leveson and Natalie Lieven QC will be joining us as our keynote speakers and the programme for this year’s event will focus on the challenges facing practitioners and the wider public policy debate on human rights law in the UK.

Morning Breakout Sessions:
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The RightsInfo Summer Party

31 July 2015 by Adam Wagner

e62761dc-5e3a-4437-aa0d-44d2ee4e190fA quick note to say RightsInfo is having a summer party on 13 August. If you want an invite, sign up to the newsletter here, the invitations will be going out at midday today. It’s going to be great, sun guaranteed.  We will be also launching an exciting new project… wait and see!

‘Limbs in the Loch’ killer wins Article 8 claim

24 July 2015 by Thomas Raine

Beggs v Scottish Ministers [2015] CSOH 98, 21st July 2015 – read judgment

The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.

The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond.
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More bad news in the fight for a right to die

22 July 2015 by Isabel McArdle

281851582_1115426167001_110818righttodie-5081250R (o.t.a A.M) v. General Medical Council [2015] EWHC 2096 (Admin) Read the full judgment here

The High Court has rejected the argument made by “Martin”, a man with locked-in syndrome who is profoundly disabled and wishes to end his own life. This comes shortly after Strasbourg’s rejection of the Nicklinson and Lamb cases, for which see my post here.

Philip Havers QC, of 1COR, acted for Martin, and has played no part in the writing of this post. 

Martin would like to travel to a Swiss clinic to end his life, but wishes to obtain a medical report, from a doctor, to assist. He would also like to take medical advice on methods of suicide.

There is no dispute that a doctor advising him in this way will likely break the law, by committing the crime of assisting suicide. However, Martin argued that in practice, the Director of Public Prosecutions (DPP) has relaxed guidelines on when it is in the public interest to bring a prosecution against a doctor in these circumstances.

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Supreme Court: no-win-no-fee costs regime compatible with Article 6

22 July 2015 by David Hart QC

11769Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here

The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.

In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”

The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .

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Strasbourg rejects right to die cases

20 July 2015 by Isabel McArdle

Paul LambThe European Court of Human Rights has ruled that the applications to the ECtHR in Nicklinson and Lamb v UK, cases concerning assisted suicide and voluntary euthanasia, are inadmissible.

This is the latest development in a long running series of decisions concerning various challenges to the UK’s law and prosecutorial guidelines on assisted suicide and voluntary euthanasia. You can read the press release here  and the full decision here.
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Scheme for Exceptional Case Funding not providing the required safety net

19 July 2015 by Rosalind English

legal-aidIS (by the Official Solicitor as Litigation Friend)  v The Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin) (15 July 2015) – read judgment

Collins J has ruled that the Legal Aid guidance as to whether to provide exceptional funding in certain cases is so rigid and complicated as to be unlawful.  

Although no declaration has been made in terms, he said that the scheme as operated was “not providing the safety net promised by Ministers and is not in accordance with [the relevant statute] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”

The actual case before him concerned a defendant who had in fact been granted legal aid consequent to an earlier decision by the Appeal Court. There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of Exceptional Case Funding under Section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before the same judge, Collins J, and on 13 June 2014 he granted judicial review in each of the six cases. His decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases were reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor (read my previous post on the Court of Appeal’s decision).
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Copying for private use: to be quashed with prospective or retrospective effect?

19 July 2015 by David Hart QC

fva-630-copyright-infringement-dmca-stock-photo-shutterstock-630wBritish Academy of Songwriters, Composers and Authors and others, R(on the application of) v Secretary of State for Business, Innovation and Skills and another [2015] EWHC 1723 (Admin) – read original judgment and [2015] EWHC 2041 (Admin), 17 July 2015 read remedies judgment

On 19 June 2015, Green J ruled that an exception to copyright infringement for private use was unlawful, at common law, because of flaws in the consultation process which had preceded its enactment. See Rosalind English’s post here.

The judge left open for further argument what should be done about this unlawfulness.

The Secretary of State agreed that the offending statutory instrument should be quashed, and that he would re-consider whether a further private copying exception should be introduced.

But the parties disagreed about the date from when it should be quashed. Should it be prospective or retrospective? Or, in the Latin that lawyers still love, ex nunc (from now) or ex tunc (from then)? (Auto-correct so wanted those words to be “ex tune” – which would have been very appropriate, but wrong)

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The round-up – Books, Boycotts, and Gove’s Debut

19 July 2015 by Laura Profumo

01_NH10RES_1148962kLaura Profumo serves us the latest human rights happenings.

In the News: 

Michael Gove appeared before the Justice Select Committee last Wednesday, in the first true baring of his political mettle as justice secretary. Overall, it seems, the MP made a largely favourable impression, though legal commentators remain wary. UKHRB’s own Adam Wagner deftly compared Gove’s success to “when they gave Obama the Nobel Peace Prize…because he wasn’t George Bush”. The “post-Grayling Gove-hope” may, then, prove deceptively shallow, defined by the simple relief that Gove is not Grayling.

Yet Gove’s evidence before the committee was laudable – reasonable, measured, and skifully non-committal. Gove’s comments on the Human Rights Act obliquely signalled the “proposals” will be published “in the autumn”, failing to specify whether they would be accompanied by a draft Bill. His substantive points were similarly vague. The Lord Chancellor invoked the “abuse” of human rights as justification for the repeal of the HRA, before conceding he could not offer a “one-hundred per cent guarantee” that the UK would remain a party to the Convention. Such a position suggests a British Bill of Rights may “seek to limit certain rights”, argues academic Mark Elliot, which would, “quite possibly”, precipitate British withdrawal from Strasbourg altogether. Gove also stressed the role of the judiciary in applying the common law to uphold human rights, holding that “there is nothing in the Convention that is not in the common law”. Such a view is “highly contestable at best, plain wrong at worst”, holds Elliot, whilst Conor Gearty finds it stokes the fantasy of “the civil libertarian common law”. Gove seems to suggest that HRA-repeal and possible ECHR-withdrawal would be “far from earth-shattering events”, Elliot notes, as judges could still invoke a panoply of common-law rights. Whilst Gove is right to remind skeptics that HRA-repeal would not leave domestic judges powerless, such “overstatement” of the common-law rights model “might end up hoist on its own petard….ringing hollower than its cheerleaders”.
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Divisional Court strikes down DRIPA communications data law

19 July 2015 by David Hart QC

David-Davis-Tom-Watson-HOCR (ota Davis et al) v. Secretary of State for Home Department [2015] EWHC 2092 – 17 July 2015 read judgment

When a domestic Act of Parliament is in conflict with EU law, EU law wins. And when a bit of the EU Charter (given effect by the Lisbon Treaty) conflicts with an EU Directive, the EU Charter wins.

Which is why the Divisional Court found itself quashing an Act of Parliament on Friday – at the behest of four claimants, including two MPs, the Tories’ David Davis and Labour’s Tom Watson. 

The doomed Act is the Data Retention and Investigatory Powers Act 2014 or DRIPA. It was in conformity with an underlying EU Directive (the Data Retention Directive 2006/24/EC or DRD – here). However, and prior to DRIPA, the DRD had been invalidated by the EU Court (in the Digital Rights Ireland case here)  because it was in breach of the EU Charter.

All this concerns communications data, which tell us who was sending an email, to whom, from where, and when – but not the content of the email. DRIPA in effect compels telecoms providers to keep communications data for 12 months, and to make it available to public bodies such as intelligence and law enforcement agencies.

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Scotland, Sewel, and the Human Rights Act

18 July 2015 by David Scott

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

by David Scott

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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TTIP news, and whether the UK should encourage big business to sue it

15 July 2015 by David Hart QC

GET_3A2_shutting_down_nuclear_plants_lQuite a lot has happened in the 6 months since my post here on the Transatlantic Trade and Investment Partnership (TTIP). TTIP is a proposed trade agreement between the US and the EU, with negotiations on the substantive issues between the EU and the US underway in Brussels at the moment.

The proposed treaty may have significant effects on EU regulation, but let’s concentrate on whether TTIP should contain specific provisions enabling investors to sue governments.

The ground for action would be governmental “expropriation” of investments – and that may mean anything from telling a cigarette manufacturer that he must have to change what his packets look like, (with consequential loss of profits), to imposing new environmental standards on a power generating plant.

This mechanism is known as Investor-State Dispute Settlement or ISDS. Our government seems astonishingly sanguine about this, on the basis that it has not yet been sued successfully under existing bilateral treaties with similar provisions. This does not seem to be a very profoundly thought-through position to adopt, if the proposed system has its problems – which it plainly does, when one compares it with traditional claims in the courts. Put simply, why wave it on?

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How mad must you be, not to be responsible for your actions?

14 July 2015 by David Hart QC

1a45b808-20f6-11e5-_934669cDunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment

This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.

Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.

You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.

You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.

The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?

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