Monthly News Archives: April 2017


The Round Up: Immigration Appeals, Vaginal Mesh, and Farage and Defamation

24 April 2017 by Sarah Ewart

Farage

IN THE NEWS THIS WEEK

With election fever well and truly afflicting the exhausted electorate again, Gina Miller, of Article 50 fame, has launched a tactical voting initiative to back candidates who will “commit to keeping the options open for the British people.” The crowd-funding campaign, rousingly named “Do what’s best for Britain!”, reached and surpassed its £135k goal in just 24 hours. It’s not the first initiative of its kind: moreunited.co.uk contributed to the Lib Dem success in the Richmond Park by-election, and has doubled its crowd-funding target after raising more than £50k in the 48 hours since the announcement of the general election. Neither initiative is allied to a particular party: instead, they aim to support individual candidates sympathetic to their values.

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Right to die case allowed to proceed

13 April 2017 by Rosalind English

Conway, R(on the application of) v The Secretary of State for Justice[2017] EWCA Civ 275

The Court of Appeal has overturned the refusal of the Divisional Court to allow a motor neurone disease sufferer to challenge section (1) of the Suicide Act. He may now proceed to seek a declaration under section 4(2) of the Human Rights Act 1998 that the ban on assisted dying is incompatible with the European Convention on Human Rights. The background to this appeal can be found in my post on the decision from the court below, which focussed on the vigorous dissent by Charles J.

Briefly, Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.

The main argument in support of the permission to appeal was that it was self-evident from the division of opinion in the Divisional Court that there would be a realistic prospect of success. Mr Conway’s legal team also argued that the issues raised about Mr Conway and those in a similar position to him were of general public importance and that this was a compelling reason for the appeal to be heard.
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The Round-Up – chemical weapons and Supreme Court judgments

10 April 2017 by Poppy Rimington-Pounder

Chemical weapons

Chemical attacks in the northern Syrian province of Idlib have left at least 80 dead and 100 more injured. It has been reported that in a raid last Tuesday morning Syrian government planes exposed countless civilians in the town of Khan Sheikhun to toxic gas, suspected to be sarin. While Syrian President Bashar al-Assad denies claims that he is the author of these attacks, outrage has erupted across the world, which culminated in US President Donald Trump commencing airstrikes on Syria.

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Do you enjoy writing about rights?

10 April 2017 by Adam Wagner

RightsInfo, the UK Human Rights Blog’s sister site, is looking for new volunteer writers. Do you have a passion for human rights and can you write about law for a lay audience? If so, please apply! All details below, via RightsInfo.

We’ve had a cracking start to the year, covering all the biggest human rights news from Brexit developments to the London terror attackTory MPs who say we must stay in the Human Rights Convention to why the Tampon Tax is a human rights issue.

Most of what we produce is written by our amazing volunteer team. To support our news coverage further, we’re seeking new volunteers to write for RightsInfo. We are looking for people with excellent writing skills and a good knowledge and understanding of UK human rights law. If you’re keen on British politics, Brexit or human rights in practice then all the better!

We particularly need people who have time to work on more responsive pieces mid-week as part of our news rota, but we’d love to hear from you even if that’s not you.

If you’d like to apply, send us:

  • a brief statement on why you would be a good volunteer (max. 100 words)
  • a summary in 150 words or fewer of this recent ‘right to die’ case, aimed at a lay audience – no legalese please!
  • an indication of whether you would be able to be ‘on call’ one day per week to help us respond to breaking human rights news and, if so, which day of the week you would be able to cover
  • All in the body text please – no attachments and no C.V.s please!

Please email your application to info@rightsinfo.org no later than 10pm on Sunday 30th April with the subject line “Volunteer application – [NAME]” and with the case summary and other information all in the body text of the email. We regret that due to the high number of candidates expected, we cannot give individual feedback.

We look forward to hearing from you – good luck!

Scottish law on sexual offences incompatible with human rights

7 April 2017 by Guest Contributor

AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2017] UKSC 25 – read judgment 

This week the Supreme Court ruled handed down its judgment on the legality of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009.

Section 39(1)(a) of the 2009 Act allows a person accused of sexual activity with an under-age person to rely on the defence that, at the time, he or she believed that the under-age person was in fact over the age of 16. Section 39(2)(a)(i), however, deprives the accused of this defence where he or she has previously been charged by the police with a ‘relevant sexual offence’. The relevant sexual offences are set out in Schedule 1 of the 2009 Act.

The appellant argued that s.39(2)(a)(i) of the 2009 Act is not compatible with the European Convention on Human Rights (“the Convention”). If a Scottish Act is incompatible with a right under the Convention, in accordance with section 29 of The Scotland Act 1998, it is outwith the competence of the Scottish Parliament and therefore not law. It was submitted that section 39(2)(a)(i) was incompatible with Article 6 (right to a fair trial), Article 8 (right to privacy and family life) and Article 14 (prohibition on discrimination) of the Convention.
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Rose Slowe: Article 50 Notice and Implied Conditionality

7 April 2017 by Guest Contributor

England Europe

More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.

On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.

That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is indeed irrevocable. Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given. The arguments in favour of revocability are difficult to dispute, finding their basis in the UK constitution, EU Treaties and international law.

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Immigration and Minimum Income Requirements – “significant hardship” caused, but still ECHR compatible

6 April 2017 by Fraser Simpson

money_1945490cSS (Congo) v Entry Clearance Officer, Nairobi, [2017] UKSC 10 – read judgment. 

The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR.

by Fraser Simpson

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THE ROUND UP: victims of forced labour, assisted dying and the Hillsborough law

3 April 2017 by Sarah Ewart

Assisted dying There’s a lot to cover this week, as the Round Up looks at (among other things) Strasbourg’s view on forced labour in Greece, the High Court’s latest decision on assisted dying, a mooted Hillsbrough law, Katie Hopkins’ twitter fiasco receiving short shrift in the courts and, inevitably, the triggering of Article 50.

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Judges once again avoid right to die issue

2 April 2017 by Rosalind English

Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment

Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act  was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).

Background facts and law

The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.

In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.

The Court concluded – with an interesting dissent from Charles J – that  this was a matter for parliament.  A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.

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