Monthly News Archives: June 2017


Information law: when something is “on” an environmental measure

30 June 2017 by

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

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The role of employee legitimate expectations in unfair dismissal claims – Lauren Godfrey

30 June 2017 by

A recent EAT ruling JP Morgan v Ktorza continues a line of decisions which limit the role of employee expectations in the determination of unfair dismissals claims further curtailing the extent to which employees can rely on public law notions or human rights principles to challenge their dismissals.

In this case HHJ Richardson re-affirmed the correct approach to dismissal claims: (1) it is the employer’s view objectively judged which falls to be considered not the expectations of the employee; (2) the Employment Tribunal is not to substitute its own view; and (3) the s 98(1)-(2) of the Employment Rights Act 1996, gateway of ‘conduct’ as the reason for a dismissal should not be conflated with the band of reasonable responses test under s 98(4).

Background facts and law

Mr Ktorza was a highly paid sales executive in the trading arm of JP Morgan Securities Plc before his dismissal after an incident of alleged misconduct triggering an earlier (unrelated) final written warning. The more recent incident which resulted in JP Morgan deciding to dismiss Mr Ktorza was a practice known as ‘short-filling’ in respect of trades; a practice which carried financial and regulatory risk for JP Morgan.
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1 COR Breakfast Briefing – Vulnerable Asylum Seekers: Recent Developments

29 June 2017 by

Event:

Join us for an Immigration law briefing over breakfast at 1 Crown Office Row, London.

Short talks by the barristers covering some of the latest developments will be followed by an interactive discussion.

When:

Tuesday July 18th 2017 8.15am for an 8.30 start – running til 9.30am

Speakers: 

Jeremy Hyam QC – Specialist in Public Law and Human Rights

Sarabjit Singh – Draws experience from a diverse practice, with a focus on Immigration.

Suzanne Lambert – Has particular experience in Immigration, Judicial Review and Appeals.

Paul Reynolds – Paul is building a strong practice in Public Law and Human Rights, including Immigration

Where:

1 Crown Office Row, Temple, EC4Y 7HH

RSVP:

Please RSVP events@1cor.com

 

 

The Round Up: End of the Charlie Gard case, Russian Homosexuality Laws, and the Northern Ireland Abortion Case

27 June 2017 by

IN THE NEWS

The Strasbourg Court has ruled inadmissible the claims by Charlie Gard’s parents that the withdrawal of artificial ventilation from the severely ill child would breach their right to respect for family life under Article 8. Seven judges ruled that it was most likely that Charlie was “being exposed to continued pain, suffering and distress”. The parents had wanted to take him to undergo experimental treatment in the US, but the Strasbourg Court said that undergoing this treatment with “no prospects of success… would offer no benefit”.

These means that the Great Ormand Street Hospital may proceed with  the Supreme Court’s order to end the baby’s continued suffering by removing Charlie from life support.  We will post a link to the text of the decision when it becomes available; here in the meantime is the press release detailing the inadmissibility decision in the case Gard and Others v. the UK . See our most recent update here for more details and earlier posts here and here.

As the Law Gazette reports, David Lidington takes over from Liz Truss as Lord Chancellor and representative of the judiciary in the Cabinet. He is our fifth Lord Chancellor in just five years.  David Lidington has been Conservative MP for Aylesbury since 1992.  You can find his voting record here and check out this profile of his record on human rights by Rights Info.

The Independent reports that the number far right extremists reported to the government’s counter-terrorism Prevent strategists increased by 30% in the past year. Prevent has been criticised for its ineffectiveness and now for focusing too heavily on Islamist terror.  See  Liora Lazarus in the UK Constitutional Law blog on the tension between (and politicisation of) human rights and effective counter-terrorism, and Adam Wagner on how we respond to terror.

Litigation following the Grenfell Tower disaster is inevitable. Sir Keir Starmer, the former Director of Public Prosecutions (DPP), said on the Andrew Marr show that prosecutors are looking into corporate manslaughter charges. Such a charge is notoriously difficult to bring (see Solicitors’ Journal here and the CPS guidelines here). There have been other calls for charges to be brought under the common law offence of gross negligence manslaughter, especially after it was revealed that both the insulation and the tiles in the building failed multiple safety tests. But legal challenges regarding negligent maintenance are also difficult to bring due to the lack of legal aid for the claimants. We’ll keep you posted as this case develops.

It’s Refugee Week this week, so head over to Free Movement for an in-depth look at the new Home Office policy of periodically reviewing (and where possible returning) refugees who have been granted indefinite leave to remain.
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Transgender father to appeal for greater contact with ultra orthodox children

27 June 2017 by

J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 (30 January 2017) – read judgment

The Court of Appeal has granted permission to the father to appeal against the decision of the High Court earlier this year. Briefly, Peter Jackson J denied a father, who now lives as a transgender person, direct contact with his five children who live with their mother in the heart of a Charedi community of ultra-orthodox Jews.

The judge said that he had reached the “unwelcome conclusion”

that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.

The appeal hearing, estimated to last one day, will take place on 15 November 2017.
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No bans on local authority disinvestment decisions

25 June 2017 by

R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment

Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.

Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.

The key bit of the impugned guidance was that those running local authority pensions must not use their policies to

pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;

or

“pursue policies that are contrary to UK foreign policy or UK defence policy”.

The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.

No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.

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International human rights can help reverse yet another heavy blow on sexual and reproductive health

25 June 2017 by

Koldo Casla  of the Policy, Research and Training Manager of Just Fair @JustFairUK, an organisation that monitors and advocates economic and social rights in the UK

Women’s sexual and reproductive rights are not safe and accessible in all corners of the United Kingdom: see Rosalind English’s post on the Northern Irish situation here and here.

Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).

Abortion is still a crime in Northern Ireland. Women who choose to exercise their sexual and reproductive rights have to travel to mainland Britain, but they have to face costs (about £900 in the recent case discussed by Rosalind English) that would not apply if they lived in England, Wales or Scotland.

By a majority of 3 to 2, the Supreme Court ruled that, while this situation does in principle concern the right to enjoy a private and family life without discrimination (Articles 8 and 14 of the European Convention on Human Rights), the difference in treatment is justified because the decision on this matter falls under the powers of the devolved administration of Northern Ireland (paragraph 20 of the Judgment). And therefore the human rights of women living in Northern Ireland are not being breached.
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Charlie Gard: Strasbourg Court rules parents’ case inadmissible

20 June 2017 by

Yates v United Kingdom –  here

Update: On 27 June the Strasbourg Court ruled the application by Charlie Gard as inadmissible. The full decision is not yet up on the Court’s website but here is the press release detailing the Inadmissibility decision in the case Gard and Others v. the UK – decisions by UK courts endorsed A spokesman for the Great Ormond Street Hospital said:

Today’s decision by the European Court of Human Rights marks the end of what has been a very difficult process and our priority is to provide every possible support to Charlie’s parents as we prepare for the next steps.

The Strasbourg Court by a majority endorsed in substance the approach by the UK courts, saying that they had been “meticulous” in their reasoning. It is likely that Charlie’s life support will now be withdrawn and he will be given palliative care only.

Following the Strasbourg Court’s request for interim measures for the UK – which means the hospital may not take Charlie Gard off life support as the Supreme Court has allowed it to do – the Supreme Court arranged a short hearing to take place Monday 19 June, to give directions. The Strasbourg Court has now put in place a further request that treatment and nursing care be continued beyond its original deadline of 19 June (see the press release from Strasbourg here: Gard and Others v. the UK) . This is because that Court has to consider the parents’ application that the case does not just concern Charlie’s right to die with dignity but their rights under Article 8 as his parents to be afforded respect for their decisions as to what is in Charlie’s interests.

This is a unique situation facing the Supreme Court, and, probably, the judges of the European Court of Human Rights.  As the UK court acknowledges, by granting a stay, even of short duration, it would “in some sense” be complicit in directing a course of action which is contrary to Charlie’s best interests, since this was its last word on the matter. It is no wonder that this is causing some soul-searching. The Strasbourg Court’s interim measures order is directed at the government, not Great Ormond Street Hospital or its doctors. The latter won a ruling from the Supreme Court that they should remove life support from Charlie Gard because it is considered to be in violation of his right to die with dignity, and, of course, not in his best interests. 
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Strasbourg on excessive libel damages

19 June 2017 by

Independent Newspapers (Ireland) Ltd v. Ireland     ECtHR, 5th section, 15 June 2017 – read judgment here

The Strasbourg Court has decided that an award of damages in an Irish libel case was disproportionate – but, as I shall explain – it has not told us what a proportionate award would have been.

This odd position was reached in an application by a newspaper group against the Irish state. It was triggered by a massive jury award (1.872m euros) for what by all accounts was a deeply unpleasant libellous campaign by the paper. But the immediate cause of the litigation arose from an appeal to the Irish Supreme Court, who, by a majority, would have reduced the award to 1.25m euros. 

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NI Abortion Refugees: further thoughts

15 June 2017 by


R (o.t.a A and B) v. Department of Health [2017] UKSC 41, 14 June 2017 – judgment here; previous post here.

Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).

Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?

No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).

Background law and facts

The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS.
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Once more unto the breach

15 June 2017 by

The ClientEarth litigation on air pollution rolls into a new phase, six years after they first began proceedings. This post tells the story.

 On 31 May 2017, the environmental NGO ClientEarth announced that it had launched a third round of litigation against the government in relation to air pollution.

ClientEarth have stated that the policy measures set out in DEFRA’s latest draft Air Quality Plan for the UK (the 2017 Plan) do not meet the legal standard, and that more ambitious and far-reaching government action is required.

The 2017 Plan here, which is open to consultation until 15 June (so it ends today), addresses the continuing illegal levels of Nitrogen Dioxide (“NOx”) pollution that are present in both urban and rural areas all across the UK. However, environmental groups have been largely united in their criticism of the 2017 Plan’s limited content. The government had been required by European law to achieve NOx compliance by 2010, but the 2017 Plan now anticipates NOx breaches continuing into the 2030’s.

Currently, 40,000 premature deaths per year in the UK are estimated to be associated with air pollution.

ClientEarth have created an online platform for submitting responses here.

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Foreign criminals’ deportation ruled unlawful

15 June 2017 by

Image: Flickr.com

 

R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

In a nutshell

The Government’s flagship scheme to deport foreign criminals first and hear their appeals later was ruled by the Supreme Court to be incompatible with the appellants’ right to respect for their private and family life (reversing the decision below).

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Northern Ireland abortion refugees: Supreme Court

14 June 2017 by

 R (o.t.a A and B) v. Department of Health [2017] UKSC 41, 14 June 2017 – judgment here. 

Sometimes The Law comes to the rescue. And by this I do not mean constitutional law versus populism or the rule of law versus raw-knuckled fighting.  It just happens that, occasionally, litigation drawn from ordinary life encapsulates more political debating points than a week’s worth of press analysis.

If you want to hear the real deal about devolved government, Northern Ireland, sexual assault, the meaning of “England”, abortion, federalism, the power of the state, healthcare, medical tourism, women’s rights, discrimination, nationality, social security or the NHS, you need do no more than read this case. As for the majority judgments and the two dissenters, pay close attention to the language because within the phrasing other truths emerge.

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Breverse: Politically Problematic but Legally Possible, by Rose Slowe

14 June 2017 by

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On 29 March 2017, Theresa May’s Article 50 letter of notice was delivered to Donald Tusk, thereby formally triggering the Treaty-based process for the UK’s withdrawal from the EU. The question remains: is this trajectory irreversible, or can the UK rescind its notification?

While the legal arguments in favour of Article 50’s revocability have already been raised repeatedly in academic discourse, they now merit reconsideration. The results of the UK general election on 8 June have brought about a substantive change of circumstances, and the notion of Breverse no longer seems relegated to the realms of academic hypotheticals. This post explores the legal reality of revocability as a matter of UK constitutional, EU and international law, before considering how the current political situation interacts with this.

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