Monthly News Archives: July 2017


Jackson LJ on costs in all judicial reviews: Aarhus rules to apply

31 July 2017 by David Hart QC

 

Review of Fixed Recoverable Costs: Supplemental Report, 31 July 2017 – here

Jackson LJ is still toiling away at costs issues some 8 years after his main report. The original report changed the whole way in which the civil courts go about working how much, if anything, is due from one side to another at the end of a case – budgets being one key element. The main part of this new report concerns extending fixed costs further.

This post is about something different, judicial review. Rather different factors may come into play when you are challenging public authorities. You may have a direct financial or other interest in the outcome, or you may just think that the law needs properly enforcing against those authorities. It does not follow that the winner should recover costs on the same rules as elsewhere in the civil system. And Jackson LJ returns to the question of costs in this context in Chapter 10 of his report.

Since 2013, things have been different in the area of environmental judicial reviews. With substantial prods from the EU, things are now better off for claimants, though recent reforms have sought to put further obstacles in the way of claimants: see my post here.

So it is refreshing to read something from a very senior judge which recognises the true value of judicial review as a whole and why the costs rules need adjusting in this area for the benefit of claimants.

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The end of a chapter

25 July 2017 by Rosalind English

Great Ormond Street Hospital v Yates and Gard –  [2017] EWHC 1909 (Fam) – read judgment

A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions. Many opinions have been expressed based on feelings rather than facts.”

So said Francis J, when dealing with an unusual application by Great Ormond Street Hospital (Gosh) asking for an order, rather than a declaration, that Charlie Gard should be allowed to slip away quietly.  The involvement of the White House, the Vatican, the Bambino Gesu Children’s Hospital in Rome and Dr. Hirano and the associated medical centre in the USA  in this story demonstrates the fact that a mere declaration carries too much ambiguity to allow the hospital staff to do what the courts have approved. The terms in which Gosh put its application were unambiguous indeed:

Therefore orders are sought to remove any ambiguity; orders are enforceable. Despite all of the hospitals best endeavours, this appears as potentially necessary. Not for the first time the parents through their solicitors raised the prospect of criminal proceedings against the hospital and its staff. The Hospital understands that no court order best interests proceedings can afford it or its staff from prosecution.

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The Round Up: Lady Hale, Gayle Newland and Ian Paterson’s Sentencing

25 July 2017 by Sarah Ewart

The Law Pod UK podcast for this roundup is available on iTunes – Episode 7

In the news…

The Unduly Lenient Sentence Scheme

Disgraced surgeon Ian Paterson’s sentence has been referred to the Court of Appeal under the Unduly Lenient Sentence Scheme. Paterson was jailed for 15 years in May, having been found guilty of 17 counts of wounding with intent and three of unlawful wounding. The breast surgeon was accused of negligence in performing so-called ‘cleavage-sparing mastectomies’, an unapproved procedure leaving tissue behind for cosmetic reasons and for some women leading to the return of their cancer, and furthermore, of carrying out unnecessary operations where a simple biopsy would have sufficed.

The Unduly Lenient Sentence Scheme was also in the news this week when the Ministry of Justice announced that 19 terror offences would be incorporated, including encouraging terrorism and sharing terrorist propaganda. The Scheme allows anyone to refer a sentence that they feel was lenient to the Attorney-General, who has the power to refer it to the Court of Appeal for reconsideration.
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The clash between open justice and one’s good name

20 July 2017 by David Hart QC

Khuja (formerly known as PNM) v. Times Newspapers [2017] UKSC 49, Supreme Court, read judgment

The outcome of this case is summed up in its title, an unsuccessful attempt to retain anonymity in press reporting.  It is a stark instance of how someone involved in investigations into very serious offences cannot suppress any allegations which may have surfaced in open court, even though no prosecution was ever brought against them.

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Enforcement of environmental law: what is not in the Brexit Bill

20 July 2017 by David Hart QC

I posted recently on the European Union (Withdrawal) Bill and its approach to rolling over EU-derived laws into our domestic law. But a law is only as good as its enforcement makes it, and so we all need to think how this is going to be done post-Brexit. 

NB: there is nothing in the Bill which touches on enforcement; that is for later, if at all.

The issue arises particularly starkly in the environmental field, where there are not so many players with direct legal and commercial interests around (as in, say, equal pay or competition law) to seek consistent enforcement.

A task force within the UK Environmental Law Association (chaired by Professor Richard Macrory and Andrew Bryce, left and right in the pic) has been applying its mind to this enforcement problem, and on 18 July 2017  published a short and powerful report on the issue – Brexit and Environment Law. Its main messages are these.

 

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Human rights job alert

20 July 2017 by Adam Wagner

RightsInfo is one of one of the UK’s newest and most exciting charities, building knowledge and support for human rights with engaging, accessible and beautifully presented online content.

We’re looking for an enthusiastic, talented Project Coordinator to join our multi-award winning team.

All details here

The Round-Up: Niqab ban does not violate human rights

19 July 2017 by Poppy Rimington-Pounder

The European Court of Human Rights has upheld the Belgian ban on Islamic burqas and other full-face veils by ruling that it does not violate human rights.

In doing so the Court has held by its position in S.A.S v. France (2014), where it ruled that a similar ban in France was lawful. In these latest cases the Court was asked to rule on the lawfulness of such bans in Belgium, where the applicants argued it was in violation of Articles 8 (right to respect for private and family life) and 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.

Belcacemi and Oussar v. Belgium

This case concerned the compatibility of a Belgian law introduced on 1st June 2011 which banned the wearing in public places of clothing which partially or totally covers the face. The applicants, Samia Belcacemi and Yamina Oussar both claimed that they had chosen to wear the niqab (a veil which totally covers the face except for the eyes) because of their religious beliefs, and that the restriction on doing so had violated their human rights. Ms Oussar in particular argued that since she has decided to stay at home and wear the veil there has been a restriction on her private and social life.
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EU Law provides Pension Equality

18 July 2017 by Martin Downs

Image result for uk supreme courtEU Equality law had its moment in the sun in the week after London Pride with the UK Supreme Court Judgment in the case of Walker v Innospecalbeit that the front page treatment in The Metro was not exactly the same as that in The Telegraph.

Many commentators had feared that the ECJ decision in David Parris v Trinity College Dublin would  be a problem but Professor Rob Wintemute argued in this Blog earlier this year that it could be distinguished – and he was proved right. He also had quite a big walk on role in Supreme Court Judgment (see below).
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High Court allows UK government to continue exporting arms to Saudi Arabia

11 July 2017 by Rosalind English

Campaign against Arms Trade, R(on the application of) v The Secretary of State for International Trade [2017] EWHC 1754 (Admin) – read judgment

Angus McCullough QC acted as Special Advocate supporting the Claimant in this case. He is not associated with the writing of this post.

A challenge to the legality of UK’s sale of arms to Saudi Arabia has failed. The claim sprang from the conflict in Yemen and the border areas of Saudi Arabia. It focussed on airstrikes conducted by a coalition led by Saudi Arabia in support of the legitimate government of Yemen against the Shia-led Houthi rebellion.  UK arms export policy states that the government must deny licenses for sale of arms to regimes if there is a ‘clear risk’ that the arms ‘might’ be used in ‘a serious violation of International Humanitarian Law. This in turn is based on the EU Common Position 2008/944/CFSP on arms export control, which explicitly rules out the authorising of arms licences by Member States in these “clear risk” circumstances.

The claimant argued that the body of evidence available in the public domain not only suggested but dictated the conclusion that such a clear risk exists. It was therefore no longer lawful to license the sale of arms to Saudi Arabia.

The High Court dismissed their claim. The CAAT intends to appeal this decision.
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Implementation of ECHR judgments – have we reached a crisis point?- Lucy Moxham

7 July 2017 by Guest Contributor

In recent years direct challenges to the authority of the Court within a handful of member states have also become more explicit and vocal” and “the Convention system crumbles when one member state, and then the next, and then the next, cherry pick which judgments to implement.

So said Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights, last year. This raises the question of whether the Convention system is facing an implementation crisis and what more might be done by the Committee of Ministers, the regional body responsible for supervising the execution of judgments of the European Court of Human Rights.

Last month, the Bingham Centre for the Rule of Law and Leicester Law School convened a public event that asked an expert panel to consider these issues. Speakers included Merris Amos (Queen Mary University London); Dr Ed Bates (Leicester Law School); Eleanor Hourigan (Deputy Permanent Representative, UK Delegation to the Council of Europe); Nuala Mole (The AIRE Centre); and Prof Philip Leach (EHRAC, Middlesex University London and the European Implementation Network). Murray Hunt (Legal Adviser to the UK Joint Committee on Human Rights and incoming Director of the Bingham Centre) chaired the event.

While a detailed summary of the presentations is available on the Bingham Centre website, this post highlights some of the headline points from the conversation.
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Whose womb is it anyway? NI Court shrinks from abortion law reform

7 July 2017 by Rosalind English

The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  [2017] NICA 42 (29 June 2017) – read judgment

Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times.  The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.

Let me start with a much quoted proposition derived from Strasbourg law.

when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.

Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:

the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.

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1COR Launches New Podcast Series – Law Pod UK

6 July 2017 by Rosalind English

1 Crown Office Row have launched a new regular podcast, Law Pod UK, with presenter Rosalind English, to discuss developments across all aspects of civil and public law in the UK.

It comes from the creators of the UK Human Rights Blog and is produced by the barristers at 1 Crown Office Row. Post production by Whistledown Studios.

Episode 5: Further ruling on NI abortion rights, Charlie Gard, and transgender in Ultra-Orthodox Jewish community (6 July 2017).

 Sarah Jane Ewart and Rosalind English discuss the latest developments in access to abortion for Northern Irish women, the lessons to be learned from the Charlie Gard case, and the difficult decision that the courts had to reach when considering the best interests of children in an Ultra-Orthodox Jewish family, where the father had left the community as a transgender person.

 Episode 4: Supreme Court rules on NI abortion case (19 June 2017)

 Rosalind English discusses the recent Supreme Court judgement on the case of women from Northern Ireland who seek abortions on the NHS in England.

 Episode 3: Negligence Ruling in Meningitis case (28 May 2017)

 David Hart QC and Rosalind English discuss the implications of a recent negligence case involving a young doctor’s failure to diagnose a child with meningitis.

Episode 2: Female terror plot trial, legal aid for unaccompanied minors, Value For Justice & post-Brexit legal landscape (18 May 2017).

Sarah Jane Ewart and Rosalind English discuss the prospect of the first all female terror plot trial, legal aid for unaccompanied minors in immigration cases, the Bar Council’s manifesto “The Value of Justice”, the law post-Brexit, and shift sleeping and the minimum wage

Episode 1: Election pledges on human rights, citizenship for third country EU nationals, CAGE case latest (26 May 2017).

Poppy Rimington-Pounder and Rosalind English discuss party election pledges and the Human Rights Act, the Muslim advocacy group CAGE’s forthcoming legal battle, a freedom of conscience ruling for members of the armed forces in the Bahamas, and citizenship rights for the children of third country nationals in Europe.

You can subscribe to Law Pod UK via Audioboom here. They will shortly be available for subscription and download from iTunes.

Please get in touch if you would like to collaborate on any future episodes.

 

 

The Round-Up – free abortions, no adoption for Sikh couple, and school uniform headscarves

4 July 2017 by Poppy Rimington-Pounder

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Women from Northern Ireland who travel to the UK seeking abortions will now be able to access the procedure without charge on the NHS. See the Supreme Court decision on this, posted by Rosalind English, which brought the whole matter to light. You can hear a discussion of the various issues in this case on our new podcast series.

The government changed its policy on the matter amid fears that Conservative MPs were planning on supporting an amendment to the Queen’s speech, put forward by Labour MP Stella Creasy, to provide Northern Irish women with access to free abortions in England; with the new Conservative government’s much reduced majority, Prime Minister Theresa May could not afford to risk a rebellion from her own MPs.

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