Monthly News Archives: September 2016


Strasbourg again favouring safety of conviction over cross-examination of witnesses?

30 September 2016 by

Strasbourg_ECHR-300x297Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.

In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.

by Fraser Simpson

Background

In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana to the United Kingdom via the Netherlands and Belgium.
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No finding of discrimination for British Gurkha pension scheme

29 September 2016 by

Joanna-Lumley-and-Gurkha--003

British Gurkha Welfare Society and others v. The United Kingdom, Application no. 44818/11 – read the judgment here

The Court has rejected claims that the cut-off scheme for British Gurkha pensions was in violation of Article 14 in conjunction with Article 1 of Protocol 1, but leaves open space for future proceedings.

by David Scott

Background

The Gurkha have a long and storied history within the British Army. Originally serving in the (British) Indian Army, Gurkha regiments have remained within the British armed forces since 1815. More than 200,000 Gurkha soldiers fought in the two world wars, and in the past fifty years they have served in Hong Kong, Malaysia, Borneo, Cyprus, the Falklands, Kosovo, Iraq and Afghanistan.

Today these soldiers form the Brigade of Gurkhas, an administrative entity that ensures that Gurkha units are able to be integrated into the British Army. Since July 1997 the Brigade’s home base has been in the United Kingdom, due to the completion that year of the handover of Hong Kong – its previous home base – to China.

In October 2004 the Immigration Rules were changed to permit Gurkha soldiers who retired on or after 1 July 1997 with at least four years’ service to apply for settlement in the United Kingdom. Approximately 90 per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the UK with their qualifying dependants. A further amendment was introduced in May 2009, allowing former Gurkhas who had served in the British Army for at least four years to settle permanently in the UK. Approximately thirty-five per cent of those eligible have since applied for resettlement.
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Arguments in the referendum challenge now available

29 September 2016 by

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The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government 

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.

Citizens’ Rights

People’s Challenge

Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.

Government

Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.

In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.

Devolution

People’s Challenge

The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.

Government

The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.

Concluding statements

People’s Challenge

If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.

Government

It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.

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No more human rights? Wait. No more lawyers??

28 September 2016 by

415h7k2lel-_sx329_bo1204203200_Not only is God dead, says Israeli professor Yuval Noah Harari, but humanism is on its way out, along with its paraphernalia of human rights instruments and lawyers for their implementation and enforcement. Whilst they and we argue about equality, racism, feminism, discrimination and all the other shibboleths of the humanist era, silicon-based algorithms are quietly taking over the world.

His new book, Homo Deus, is the sequel to Homo Sapiens, reviewed on the UKHRB last year. Sapiens was “a brief history of mankind”, encompassing some seventy thousand years. Homo Deus the future of humankind and whether we are going to survive in our present form, not even for another a thousand years, but for a mere 200 years, given the rise of huge new forces of technology, of data, and of the potential of permissive rather than merely preventative medicine.

We are suddenly showing unprecedented interest in the fate of so-called lower life forms, perhaps because we are about to become one.

Harari’s message in Sapiens was that the success of the human animal rests on one phenomenon: our ability to create fictions, spread them about, believe in them, and then cooperate on an unprecedented scale.  These fictions include not only gods, but other ideas we think fundamental to life, such as money, human rights, states and institutions. In Homo Deus he investigates what happens when these mythologies meet the god-like technologies we have created in modern times.

In particular, he scrutinises the rise and current hold of humanism, which he regards as no more secure than the religions it replaced. Humanism is based on the notion of individuality and the fundamental tenet that each and everybody’s feelings and experiences are of equal value, by virtue of being human. Humanism cannot continue as a credible thesis if the concept of individuality is constantly undermined by scientific discoveries, such as the split brain, and pre-conscious brain activity that shows that decisions are not made as a result of conscious will (see the sections on Gazzaniga’s and Kahneman’s experiments in Chapter 8 “The Time Bomb in the Laboratory”).

…once biologists concluded that organisms are algorithms, they dismantled the wall between the organic and inorganic, turned the computer revolution from a purely mechanical affair into a biological cataclysm, and shifted authority from individual networks to networked algorithms.

… The individual will not be crushed by Big Brother; it will disintegrate from within. Today corporations and governments pay homage to my individuality, and promise to provide medicine, education and entertainment customised to my unique needs and wishes. But in order to do so, corporations and governments first need to break me up into biochemical subsystems, monitor these subsystems with ubiquitous sensors and decipher their working with powerful algorithms. In the process, the individual will transpire to be nothing but a religious fantasy.

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Breakfast Briefing – Is Crowdfunding The Future? The Judicial Funding Revolution – limited places left

26 September 2016 by

With Legal Aid good as dead, PCOs turned into CCOs, and judgement on Wednesday 28th September in the record-breaking Crowdfunding JR as junior doctors against the Secretary of State, come for an interactive and lively breakfast debate about the future for JR funding and costs protection now looks like.

Chair  Jeremy Hyam QC

Speakers  Isabel McArdle, Michael Deacon

Breakfast  Bagels and pastries, hot and cold drinks

Takeaways  Handouts and new legal insights

When  Wednesday 28th September 2016 8.30 am – 10 am

Where Bride Foundation, Bride Lane, Fleet St, London EC4Y 8EQ

RSVP  Events@1cor.com for solicitors and students

Contact  Rebecca King, Marketing Manager, 0207 797 7500

 

breakfast-briefing-flyer-pdf

 

Privacy of a doctor under GMC investigation clashes with that of his patient

24 September 2016 by

privacy-policy-fullDr DB v. General Medical Council [2016] EWHC 2331 (QB), 23 September 2016, Soole J – read judgment

An interesting three-way privacy fight between a GP, a patient who had complained about his treatment by the GP, and the GMC who had investigated that complaint. The prize in that fight was a copy of a medical report obtained by the GMC from an independent expert, which had concluded that the GP’s care had fallen below “but not seriously below” the expected standard.

The patient had wanted a copy of the report; all he had seen so far was a one-page summary. His motive was to investigate a possible claim for clinical negligence, arising out of the delayed diagnosis of his bladder cancer. The GP refused consent. 

The GMC then concluded it should disclose the report to the patient. And the GP brought these proceedings to stop disclosure.
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Xenakis the fisherman and the tangle of EU law

22 September 2016 by

Dead Southern bluefin tuna (Thunnus maccoyii) caught in a tuna pen, Port Lincoln, South Australia.

Understanding Standing: Post 1 of 3

Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.

Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies  The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.  

Introduction   

Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.

The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.

  1. The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
  2. The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
  3. The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.

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High Court calls for change in bereavement law to benefit cohabitees

21 September 2016 by

1152277_90340870Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) – read judgment

Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.

The issues before the Court

The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners.
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How often must we investigate torture?

20 September 2016 by

Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.

This is the third in a series of posts on the Court of Appeal’s recent judgment. The full background to the case can be found in my earlier post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here, and Alistair Henderson’s analysis of whether the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings here.

This post concerns the extent of any obligations imposed on the UK to investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose from two individuals whom had been captured by British forces in Iraq claimed they were transferred to American custody and subsequently ill-treated. The Article 5 issue arose from the detention by British forces in Iraq of  several individuals who claimed to have had their Article 5 rights violated whilst in British custody.

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A lift in a burning building? – Grand Chamber rules on terrorist Article 6 claims

19 September 2016 by

Ibralondon-bombings21him and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment here

The Grand Chamber has found a violation of Article 6(1) and 6(3)(c) in relation to one of the four applicants before it, partially overturning the earlier decision of the Chamber and providing much food for thought on the future of Article 6.

by David Scott. Many thanks to my colleagues at University of Zurich for comments on earlier drafts of this piece. Any mistakes are undoubtedly my own.

 
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Hard cases need better reasons

16 September 2016 by

13454123443_80fef9d87e_bR (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment

The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.

It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.


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Strasbourg finds that UK authorities again fail to show “due diligence” in deportation proceedings

15 September 2016 by

Yarl’s Wood immigration detention centre in Bedfordshire.

Photo credit: the Guardian

V.M. v. the United Kingdom, Application no. 49734/12, 1 September 2016: read judgment

The European Court of Human Rights has ruled that part of an individual’s detention pending deportation violated the right to liberty protected by Article 5, ECHR. This judgment is the second recent ruling to find a lack of “due diligence” on behalf of UK authorities following the Court’s judgment in J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 (see my previous UKHRB post here).

by Fraser Simpson

Background

The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.

In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported.
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War remains inside the court room – Part 2: the Torture Convention

14 September 2016 by

iraqAl-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.

This is the second in a series of posts on a very important judgment on the human rights obligations imposed on the British Armed Forces when operating abroad. The background to the case can be found in Dominic Ruck Keene’s post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here.

This short post looks at the third question raised in this judgment, namely whether or not the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings.

As well as being a fascinating question itself, this is part of a wider issue about the use of international law in the domestic courts. Countries are usually divided into ‘monist’ and ‘dualist’ legal systems. In a monist system international law is automatically included into domestic law. However, in a dualist system like the UK the general principle has always been that international treaties must be explicitly incorporated into UK domestic law by Parliament before they can be applied to an individual case.

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War remains inside the court room: jurisdiction under ECHR

11 September 2016 by

iraqAl-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016  – read judgment

This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.

3 main points arose on appeal.

The first was the jurisdictional question under Art.1 of the Convention – were  Iraqi civilians killed or injured by British servicemen covered by the ECHR?

The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).

And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.

I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.

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Juncker’s ban on post-Brexit negotiations may be illegal

11 September 2016 by

30n02junckertwoap-485712Shortly after the Brexit referendum, the President of the EU Commission Jean-Claude Juncker declared that he had

forbidden Commissioners from holding discussions with representatives from the British government — by presidential order.

In effect, he has prohibited any executives in the EU Commission from embarking on negotiations with British government representatives before the government triggers the exit process under Article 50. Now a legal challenge is being proposed to the legality of Mr Juncker’s declaration. There is no basis for this so-called “presidential order”, say the challengers, a group of British expats seeking to protect their interests in the negotiations over the UK’s exit.
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