Monthly News Archives: March 2017


Is Strasbourg law the law of England and Wales?

30 March 2017 by David Hart QC


R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin)  24 March 2017, Kerr J – read judgment 

This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid Agency for some work they had done on two applications to Strasbourg. The underlying cases were housing, the first an attempt to stave off possession proceedings, and the second the determination of whether an offer of “bricks and mortar” accommodation to an Irish traveller was one of “suitable accommodation”. Both applications were declared inadmissible by the European Court of Human Rights, and thus could not benefit from that Court’s own legal aid system.

The major question turned on whether the Human Rights Act had “incorporated” the Convention. We all use this as a shorthand, but is it really so?

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Convention’s prohibition on discrimination may apply to pre-Human Rights Act wills

30 March 2017 by Rosalind English

Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment

The Adoption of Children Act 1926 s.5(2) had the effect that adopted children were not treated as “children” for the purposes of testamentary dispositions of property. The continuing application of this provision was a breach of the rights guaranteed by Article 14 in combination with Article 8 of the Convention. Therefore, the contemporary version of that provision, Adoption Act 1976 Sch.2 para.6, had to be read down so as to uphold the right not to be discriminated against.

Background Facts and Law

Henry Hand died in 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to their children in equal shares. The question at the centre of this claim was whether adopted children count as “children” for the purposes of this will. Under Section 5(2) of the Adoption of Children Act 1926, which was in force at the relevant time, adopted children were not included as “children” for the purposes of a testamentary disposition of property.

The claimants, the adopted children of Kenneth Hand, accepted that under the domestic law in force, they were not included and their father’s share of the Henry Hand trust would go to the their cousins the defendants. However, the claimants maintained that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The defendants argued that the ECHR could not be applied to interpret an instrument that was drawn up at a time before it existed.
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The Round-up: Harriet Harman and Liz Truss propose change in rape trials

28 March 2017 by Thomas Beamont

Harriet Harman

The Labour MP Harriet Harman has proposed a change in the law that would prevent rape complainants from being cross-examined in court about their sexual history.

Harman claims that the introduction of a complainant’s sexual history as evidence has “no evidential value.” Describing the practice as “outdated”, Harman said that “it’s based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman.”

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Maggots, sewage, bats, butterflies and Brexit

24 March 2017 by Emma-Louise Fenelon

Leigh Day and the Human Rights Lawyers Association  hosted a full house on Wednesday 22 March when Claire McGregor and David Hart QC from 1 Crown Office Row joined Sarah Sackman from Francis Taylor Building, Adrienne Copithorne from Richard Buxton LLP and Rebekah Read from Leigh Day to speak about how to become an environmental lawyer.

The audience heard how on her first day working in environmental law, Claire McGregor boarded a plane to the Ivory Coast to work on the Trafigura case involving 30,000 claimants suing oil multinational Trafigura for compensation following a toxic oil spill. The case went on to become the largest group litigation case in the UK.
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Assisted suicide and the right to private life: the enduring repercussions of Nicklinson – Stevie Martin

22 March 2017 by Guest Contributor

hand-in-hand-1686811_1920In the almost three years since the Supreme Court delivered its reasons in Nicklinson (in which a majority refused to issue a declaration that the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (‘ECHR’)), similar questions of compatibility concerning analogous bans have been considered by courts in Canada, South Africa and New Zealand. Additionally, California and Colorado have introduced legislation permitting physician-assisted suicide (taking the total to six States in the US which permit physician-assisted suicide), France has introduced legislation enabling patients to request terminal sedation, and Germany’s Federal Administrative Court this month handed down judgment confirming that the right to self-determination encompasses a right of the ‘seriously and incurably ill’ to, in ‘exceptional circumstances’, access narcotics so as to suicide.

Given news of a new challenge by Noel Conway to the compatibility of s 2(1) of the Suicide Act with Article 8 (the application for permission to review was heard by the Divisional Court yesterday with judgment reserved), it is, then, a propitious time to re-examine a particularly dubious aspect of the majority’s reasoning in Nicklinson namely, its characterisation of the declaratory power, not least given the potential for such reasoning to deleteriously affect the new challenge.
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Three Person IVF to begin in UK

20 March 2017 by Isabel McArdle


A clinic in Newcastle upon Tyne has been granted the UK’s first licence to carry out a trial of “three person IVF” (Mitochondrial Replacement Therapy, or MRT). The fertility technique is intended to be used by couples who want to prevent genetic diseases being passed on to their children, due to faulty mitochondrial DNA. The process uses genetic material from the mother, father and a female donor, and replaces faulty genetic material in the mother’s DNA with the female donor’s genetic material.

There have already been a small number of three parent IVF pregnancies elsewhere in the world, resulting in reportedly healthy babies.

However the technique is not without its controversies and critics.
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Access to environmental justice

17 March 2017 by David Hart QC

On Monday 13 March, I went along to the latest Castle Debate, held in conjunction with the Environmental Law Foundation: see here for more of the same, all free debates, and fascinating topics for anyone interested in environmental law and policy.

It, and Tom Brenan’s talk in particular, reminded me that, despite it being not long after my last Aarhus post (on private law proceedings, here), it was time to set out the latest rules governing judicial reviews, which came into operation on 28 February. The bone of contention, as ever, is the concept that challenging environmental decisions should not be prohibitively expensive.  

Until last month, the rules were relatively simple, and were designed, for better or for worse, to minimise the amounts of arguments about costs in environmental challenges. If you were an individual, £5,000 capped the costs which you would have to pay the other side if you lost.

But Government had become obsessed that environmental challengers were somehow getting a free lunch, and the rules have now been spun into something so complicated that defendants who want to burn off claimants before the claim gets heard have been given a pretty broad licence to do so. For most individuals, committing yourself to paying £5,000 if you lose is a pretty sharp deterrent. But Government does not think so. 

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The Round Up – European Court unveils controversial new ruling

17 March 2017 by Poppy Rimington-Pounder

Cloths Scarf Islamic Lady Veil Women Fabric

The EU’s highest court this week held that employers are entitled to ban religious symbols in the workplace, including the Islamic headscarf.

What were the references about?

Two Muslim women, Ms Achbita (Case C‑157/15) and Ms Bougnaoui (Case C‑188/15), claimed to have been victims of discrimination after they were dismissed for refusing to comply with their employers’ stipulations that they not wear the Islamic headscarf.

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Rape, incest and damage: but who is the real victim?

15 March 2017 by Rosalind English

Criminal Injuries Compensation Authority v First Tier Tribunal (Social entitlement Chamber) and Y by his mother and Litigation Friend  [2017] EWCA Civ 139

The predictability of genetic disorders continues to challenge existing law. Here, the Court of Appeal had to consider whether a child born as a result of incestuous rape could claim compensation under the Criminal Injuries Compensation Scheme (CICS) for his congenital disabilities. These were 50% predictable as a result of the nature of his conception, as opposed to 2-3% in the general population.

The court ruled against eligibility for such claims, partly because English law does not recognise so-called claims for “wrongful life”, and partly because harm caused before birth which has consequences after birth cannot be treated as an injury sustained by a living person. But the main reason for keeping the gates closed for compensation in these circumstances is that the child concerned never had, nor could have, any existence save in a defective state.
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The Round Up: International Women’s Week

13 March 2017 by Sarah Ewart

Happy international women’s week, Human Rights Blog readers! Women’s rights are human rights and human rights matter, so to help you keep fighting the good fight we’ve curated the week’s legal updates for your immediate consumption.

Let’s start with the good news…

  • The Supreme Court has heard the issue of whether a male employee in a civil partnership is entitled to the same pension for his spouse as if he were married to a woman (Walker v Innospec, UKSC 2016/0090).
  • Our friends over at Rights Info have curated some landmark cases for women’s equality, and you can read up on them here.

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Canals and Article 8 – again

10 March 2017 by David Hart QC

Jones v. Canal & River Trust [2017] EWCA Civ 135 – 7 March 2017 – read judgment

In recent years, the Courts have come up with a pragmatic resolution to the clash of property and Article 8 rights which typically occur in housing cases. Where the tenant is trying to use Art.8 to fend off a possession order, because he is in breach of some term of the tenancy, then the Courts, here and in Strasbourg, have resolved the issue in the favour of the local authority, save in exceptional circumstances.

But the current case of a canal boat owner raises a rather different balance of rights and interests – which is why the Court of Appeal evidently found the issue a difficult one to decide.

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The extraterritorial application of the EU Charter in Syria: To the Union and Beyond? – Michael Rhimes

10 March 2017 by Guest Contributor

1) The Situation

no one leaves home unless

home is the mouth of a shark

you only run for the border

when you see the whole city running as well

  • Warsan Shire

Shire’s words are the background to the recent case of C-638/16 X and X. So much was recognized by Advocate General Mengozzi, who concluded his Opinion as follows:

“175. Before concluding, allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach, after his family had attempted, by means of smugglers and an overcrowded makeshift vessel full of Syrian refugees, to reach, via Turkey, the Greek island of Kos. Of the four family members, only his father survived the capsizing. It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it.”
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Rose Slowe: Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

9 March 2017 by Guest Contributor

England Europe

On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.

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Human rights and fake news: what we need to do now

8 March 2017 by Adam Wagner

Last night I gave the annual Human Rights Lecture for the Equality and Human Rights Commission’s Wales office. 

My chosen topic was access to justice, human rights and fake news. I tried to sum up some of my experiences of setting up this blog and RightsInfo, made a probably ill-advised foray into cognitive psychology, and also gave some modest (and non-exhaustive!) proposals for what the human rights community could be doing to make things better.

Thank you for the EHRC for inviting me, to Cardiff University for their very gracious hosting and the audience who were really engaged and asked some difficult questions!

You can watch here or below. Comments most welcome.

The Round Up – EU citizens lord it over Brexit

3 March 2017 by Poppy Rimington-Pounder

house-of-lords-picture

Theresa May had appeared to have bounced back from the Article 50 Supreme Court case with the relatively smooth passing of the Brexit Bill through the House of Commons.

But her woes were clearly not at an end this week when she suffered defeat at the hands of the House of Lords. The peers voted 358 to 256 in favour of amending the Brexit Bill in order to guarantee the rights of EU citizens already living in the UK – the amendment drawing support not only from Labour, Liberal, and Crossbench peers, but also 7 Conservative peers.

What’s the issue?

There are currently over 3 million EU citizens living in the UK. While we are part of the EU they are allowed to move and work freely in whichever Member State area they choose.

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