Monthly News Archives: July 2016


Scottish Government’s Named Persons scheme incompatible with Article 8

29 July 2016 by David Scott

The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here

The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).

by David Scott

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The Round-up: Counter-Extremism Bill – Counter-Productive?

26 July 2016 by Charlotte Bellamy

The round up 25.07.16

Photo Credit: Steve Parsons/PA

In the News

In a new report on the much-delayed Counter-Extremism Bill, the Joint Committee on Human Rights (JCHR) has concluded that the proposed legislation is confusing, unnecessary, and likely to be counter-productive.

Though first announced by the Government in the Queen’s Speech in May 2015, the Bill itself has yet to appear. The JCHR report is a result of what was in effect a pre-legislative scrutiny inquiry into the Government’s proposals, due to the Committee’s concerns that it would be likely to raise significant human rights concerns, specifically where Articles 9 (freedom of religion), 10 (freedom of expression) and 11 (freedom of association) are concerned.

Five key problems which the report has identified are:

  • No clear definition of extremism – The Counter-Extremism Strategy, launched in October 2015 (previously covered here) defines extremism as the “vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of those of different faiths and beliefs”. This is currently too vague to be workable as a legislative definition. There is neither a consensus on the meaning of “extremism” nor “British values”. The extent to which a lack of mutual respect and tolerance towards different faiths and beliefs will be unlawful is likely to be particularly contentious.
  • Discrimination and religious freedom – The difficulty here is twofold. Measures which impact on those expressing religious conservatism would either operate indiscriminately against any religious conservatism which had no intention of inciting violence (including, for example, Islam, Orthodox Judaism, Evangelical Christianity), or would operate discriminately, specifically targeting Muslims and alienating the Muslim community.
  • The “escalator” approach – In trying to tackle extremism by placing restrictions on religious conservatism, the Government has wrongly assumed that violent jihadism necessarily follows from religious conservatism. Yet there is no proof that the two are correlated. The focus should rather be on extremism which leads to violence. Placing restrictions on religious conservatism amounts to suppressing views with which the Government disagree.
  • Conflicting duties on universities – Universities are under a duty to promote free speech under Section 202 of the Education Reform Act 1988, which provides that University Commissioners have a duty to ensure that academic staff have “freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.” It is unclear how “controversial or unpopular opinions” will be differentiated from “vocal or active opposition to our fundamental values”, and therefore what will count as extremism.
  • The civil order regime – in the Queen’s speech in May 2016, a “new civil order regime” was mentioned, though with little detail. There is concern that ill-defined civil orders, breach of which would be a criminal offence, should not be used by the Government to avoid having to make a criminal case to a higher standard of proof, especially where a proper definition of the prohibited behaviour is lacking. It is likely that these orders may interfere with freedom of religion, expression and association.

The Committee concluded that the Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework for terrorism and public order offences. In their view, the Government has not been able to demonstrate that such a gap exists, and there is a danger that any new legislation would be counter-productive.

Other news

  • Turkey has told the Council of Europe that it wants to temporarily derogate from the human rights protections under the ECHR, due to the state of emergency in the country declared by President Erdogan last week. Emma Sinclair-Webb, Senior Turkey researcher at Human Rights Watch, writes that it is unclear whether the current situation meets the required “threat to the life of the nation” criterion for derogation, provided for under Article 15. Even if this criterion is met, derogation from certain Convention rights is not permitted, including the prohibition on torture and inhuman and degrading treatment (Article 3), the right to life (Article 2); prohibition on slavery (Article 4(1)). Though Turkey has pointed to France’s state of emergency powers (extended after the Nice attack) to justify its own derogation, a state of emergency imposed where there are clear signs that the government is ready to crack down more broadly is an “alarming prospect”. Amnesty International has gathered evidence that detainees in Turkey are being subjected to beatings, torture, including rape, in official and unofficial detention centres in the country. Amnesty calls on Turkish authorities to allow international monitors to visit these places of detention.
  • A clause in the contracts of Deliveroo workers say that they are not allowed to take their grievances to an employment tribunal, and that if they do they must indemnify the company against all costs and expenses it incurs. Michael Newman, partner at Leigh Day, has said that the clause is likely to be unenforceable as they attempt to exclude or limit established employment rights, and imposed penalties. Deliveroo say that their contracts reflect the fact that riders are allowed to work flexibly on a freelance basis. Deliveroo joins several other companies in the spotlight for their use of self-employed workers, who do not receive the same rights as employees. A group of drivers are currently taking legal action against Uber, arguing that they should be entitled to the living wage, sick pay, and pensions. Uber is arguing that drivers are “partners”, not employees. It has also recently emerged that some workers for parcel firm Hermes have claimed that they earn as little as £5.50 an hour over some periods.

 

In the Courts

Foulon and Bouvet v France – Mr Didier Foulon and his daughter Emilie were the applicants in the first case. Mr Foulon is a French National and his daughter Emilie was born in Bombay, India. In the second case the applicants were Mr Philippe Bouvet, a French National, and his twin sons Adrien and Romain Bouvet, who were also born in Bombay. In both cases the applicants were unable to obtain recognition under French law of their biological affiliation. The French authorities were refusing to transcribe birth certificates issued in India, due to their use of Gestational Surrogacy Agreements (GPA) in India, which are unlawful in France. The Court de Cassation in both cases provided reasons for the refusal to transcribe the certificates, partly on the basis of fraude à la loi (evasion of the law) due to the conclusion of the unlawful GPA agreements. A violation of Article 8 was found (right to respect for private life) with respect to Emilie Foulon and Adrien and Romain Bouvet.

Shahanov and Palfreeman v Bulgaria – This case concerned the disciplinary punishments given to prisoners for complaining to the prison authorities about prison officers. Mr Nikolay Shahanov, a Bulgarian national, and Mr Jock Palfreeman, an Australian national, are serving a life sentence and a sentence of 20 years respectively in Bulgarian prisons. Mr Shahanov had made two written complaints to the Minster of Justice, in which he accused two prison officers of favouritism towards a prisoner because they were related. Mr Palfreeman had written to the governor of the prison alleging that unnamed prison officers were rude to two journalists who had visited him in prison and had stolen other visitors’ effects from lockers during their visit. Both were found guilty of making defamatory statements and false allegations about prison officers. Mr Shahanov was placed in solitary confinement for ten days and Mr Palfreeman was not allowed to receive food parcels for three months. A violation of Article 10 (freedom of expression) was found in respect of both applicants.

Previous Posts 

Should asylum seekers take action to avoid persecution on the ground of political opinion incorrectly attributed to them?

22 July 2016 by Lois Williams

Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment

The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion.  Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.

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How will human rights fare under new PM Theresa May? – the Round-up

19 July 2016 by Hannah Lynes

In the news

Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.

The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.

Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.

In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.

On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.

Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.

In other news:

The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here.  The UK Constitutional Law Association Blog provides  extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.

Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.

BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.

Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.

In the courts:

Taddeucci and McCall v Italy (judgment in French only)

This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).

Buzadji v the Republic of Moldova

This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.

On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).

UK HRB posts

Whose fair trial prevails? – David Hart QC

Justice for everyone: another Grayling reform bites the dust – Gideon Barth

Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon

The Chilcot Report – an Illegal War? – Dominic Ruck Keene

Another door closes for the Chagossians – Dominic Ruck Keene

Get out the back, Jack? make a new plan, Stan? – Rosalind English

Hannah Lynes

Whose fair trial prevails?

17 July 2016 by David Hart QC

shutterstock_152336216-505x337Da Costa and another v. Sargaco [2016] EWCA Civ 764   14 July 2016 read judgment

Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.

But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.

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Justice for everyone: another Grayling reform bites the dust

14 July 2016 by Gideon Barth

R (on the application of Public Law Project) v Lord Chancellor [2016] UKSC 39

Supreme Court bins the Government’s residence test for legal aid as ultra vires: just as the latest non-lawyer assumes the role of Lord Chancellor, the reforms made by the first non-lawyer to assume that role continue to fade away.

In April 2013, the Government announced it would introduce a residence test for civil legal aid funding under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (“LASPO”) 2012. If you were not lawfully resident in the UK (or a Crown Dependency or British Overseas Territory) at the time of your application for legal aid, or for the last 12 months, you would not be eligible for legal aid.

The Public Law Project (“PLP”) challenged this residence test on two grounds: (i) the secondary legislation was ultra vires; and, (ii) the test was unjustifiably discriminatory, and has now been successful before the Supreme Court in doing so.

After a topsy-turvy trip through the courts, the case ended up before the Supreme Court who, in an apparently unprecedented step, announced it had decided the case after day one of the two-day hearing, and did not need to hear the discrimination issue. The judgment, written by Lord Neuberger, with whom the other six justices agreed, has now been handed down.

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Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham

11 July 2016 by Michael Deacon

book

As we mentioned here, ‘The Inquest Book: The Law of Coroners and Inquests’, edited by Caroline Cross and Neil Garnham and written by members of 1 Crown Office Row, was published last month.  The Inquest Book provides practitioners with an up-to-date and comprehensive guide to the law of coroners and inquests.

Now available in hard copy and ebook format, The Inquest Book is available here with a discount of 30% available until 18 July 2016, and from Wildy’s, Waterstones and Amazon.

Please see below for a helpful review of the book by Bridget Dolan QC.

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The Chilcot Report – an Illegal War?

7 July 2016 by Dominic Ruck Keene

More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC’s ). The report’s executive summary, in particular the key findings section, is also well worth a read.  The intention is to cover in this and subsequent posts some of the key legal issues raised by the report.  This post considers the relevance of the Chilcot report’s findings to the broader issue of whether Britain’s intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry.
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Another door closes for the Chagossians

6 July 2016 by Dominic Ruck Keene

In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  [2016] UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.

Read More.

The Chagos Saga

Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.

The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.

The judgments

Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.

Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.

Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO.  Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.

Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.

Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.

Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.

The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.

Where next?

It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.

On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs [2016] EWHC 1444 (Admin).

Get out the back, Jack? make a new plan, Stan?

5 July 2016 by Rosalind English

slammingdoor1… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?

In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.

  1. The House of Lords EU Report

Is Article 50 the only means of leaving the EU?

States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so.
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Lights in the Dark: My speech to the Withington Girls’ School’s Model United Nations Conference

4 July 2016 by Adam Wagner

IMG_0242I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s  Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues.

In case you are interested, I have reposted the text of my speech below and as a PDF here. It’s a long-read, but in it I work through why I came to human rights as a career choice and why I think they are important.

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Pressing the Red Button on Rights – Joelle Grogan

4 July 2016 by Guest Contributor

Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.

The two-year countdown

Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.

But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero?
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Book Review – Marshall Hall: A Law Unto Himself by Sally Smith

2 July 2016 by Guest Contributor

Marshall-Hall-biog

Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.

Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey.
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Strasbourg Court rules on “excessive” length of Scottish criminal proceedings

2 July 2016 by Fraser Simpson

Photo credit: The Guardian

O’Neill and Lauchlan v. United Kingdom, nos. 41516/10 and 75702/13, 28 June 2016 – read judgment.

The European Court of Human Rights has ruled that criminal proceedings concerning two Scottish individuals ran beyond the “reasonable” period of time permitted under Article 6, ECHR. Despite considering that the individual stages of the proceedings were all reasonable in length, the cumulative time was excessive and in violation of Article 6(1).

by Fraser Simpson

Background

In August 1998, the applicants were sentenced to periods of imprisonment of eight and six years following convictions for various sex offences. During their incarceration, the police wished to question the applicants about the disappearance, and suspected murder, of their ex-housemate (AM) after she had been reported missing six months earlier. On 17 September 1998 the applicants were detained by police and interviewed separately for over five hours. During these interviews they were directly accused of the murder of AM but, subsequently, neither applicant was arrested or formally charged.

Following release from prison, and subsequent re-arrest and recall to prison due to the apparent abduction of a fourteen year old boy, the applicants were again convicted of various sex offences and sentenced to a further three years in prison. During this period of incarceration the applicants were also placed on petition in relation to the murder of AM in early April 2005. Formal charges were brought on 5 April 2005 whilst the police continued with their investigations. However, in late 2005, Crown Counsel raised concerns about the sufficiency of evidence. Accordingly, a decision to take “no proceedings meantime” was made in December 2005 and subjected to continuous review as investigations continued.
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Fertility regulator wrongfully denied consent for mother’s surrogacy

1 July 2016 by Rosalind English

Pregnant-woman-001M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)

The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.

The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.

The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.

Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee.
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