Monthly News Archives: November 2017


Cohabiting partners should have same rights as spouses to claim bereavement damages — Lucy Eastwood

30 November 2017 by

House

 

Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916 – read judgment

In a landmark decision handed down on 28th November 2017 the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners.

 
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Animal welfare after Brexit: adjustable upwards or downwards

30 November 2017 by

Updated: Brexit, Article 13, and “animal sentience” in law (28 November 2017) –    Animal Law’s Expert Briefing Note

In November 2017  a vote took place in the House of Commons on a proposed amendment to the EU (Withdrawal) Bill. The Commons Library briefing paper was published on 7 December: Animal Sentience and Brexit.  The amendment  sought to incorporate into UK law a provision in the European treaty that stated the EU and its member States “shall, since animals are sentient beings, pay full regard to the welfare requirements of animals” when formulating and implementing the EU’s policies.  The vote was defeated by 313 to 295 votes.

The story of this debate has prompted a great deal of comment in newspapers and on social media, mostly critical of the UK Government’s position. The coverage reflects much of the prejudice and confusion attaching to animals reared for our use, be it for medical therapy, food or companionship. That is to be expected. But what is less excusable is that most of the coverage was  based on misunderstandings of both the Treaty Article and other EU provisions relating to animals.

So may I put in a plea for anyone who is interested to read the clear and balanced account of this issue set out by the UK Centre for Animal Law in their Briefing Note, which I will attempt to summarise here. I do urge reading the original document, which is an excellent summary of the legal and factual issues involved.

A quick reminder

When the Brexit vote came in, I wrote a post under the heading of One Trade Freedom We can Do Without. Maybe not tactful timing then, but this question is now ripe for consideration, with DEFRA secretary Michael Gove promising better protections for animals raised for food, and even for companion animals such as dogs and horses, once they are no longer trapped in the imperative of free movement of goods under the EU Treaty provisions.
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Separate but not equal? – Rajkiran Barhey

30 November 2017 by

Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al Hijrah School [2017] EWCA Civ 1426 – read  judgment

Update: Listen to the Law Pod UK podcast episode 20, available for free download from iTunes or from Audioboom here.

This fascinating judgment, delivered by the Court of Appeal on 13 October 2017, found that a policy of gender segregation in a co-educational school amounted to unlawful gender discrimination.

Background

Al-Hijrah School taught children from ages 4-16 according to an Islamic ethos. At age 9, children were segregated completely by gender in lessons, breaks, school trips, clubs etc. Following an inspection in June 2016, Ofsted published a report criticising segregation as gender discrimination.
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Damages for wrongful birth: how far does a doctor’s responsibility go?

28 November 2017 by

Meadows v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment 

Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?

The claimant sought damages arising out of the wrongful birth of her son Adejuwon.  She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000.  
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Two New Law Pod UK podcasts on Inquiries

28 November 2017 by

If you download Episodes 17 and 18 from iTunes or Audioboom, you will hear Jim Duffy discussing the proposed inquiry into the contaminated blood scandal which took place during the eighties and nineties. Episode 18 features a discussion between former historians now barristers Matthew Hill and Gideon Barth on inquiries in general, particularly ones that have been set up to investigate events which took place in the distant past.

Law Pod UK Episode 7: Prospects for the Tainted Blood Inquiry

Law Pod UK Episode 8: Do Judge Led Inquiries Work?

Related Posts:

Re-consultation for planning applications: how to do it – Charlotte Gilmartin

28 November 2017 by

(on the application of Holborn Studios Ltd) v Hackney LBC; R. (on the application of Del Brenner) v Hackney LBC [2017] EWHC 2823 (Admin) – John Howell QC sitting as a High Court Judge  read judgment

Update: Listen to the Law Pod UK podcast episode 19, available for free download from iTunes or from Audioboom here

The High Court has just ruled that the public should be reconsulted on a planning application which has been amended. Failure to do so may be procedurally unfair and therefore unlawful.

This important case will signal to public authorities the need to consider carefully their procedural obligations when determining the outcome of planning applications. They will now need to be alive to the risk that a court will substitute its own view of whether “fairness” requires that the public be re-consulted where a planning application has been amended.

Factual Background

In two judicial review applications the claimants challenged the process by which Hackney London Borough Council gave planning permission to a proposed development.

The development would have replaced a number of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney. It is a listed area of local architectural and historic interest and lies within the Regent’s Canal Conservation Area.
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Fight Hate With Rights

26 November 2017 by

I wanted to alert you to a campaign RightsInfo has been running called #FightHateWithRights.

It’s about fighting the rise of extremism by standing up for human rights. Because social breakdown and even genocide don’t happen overnight – they are the result of the steady denial of rights over months or years. By protecting human rights, we also protect against the small cuts to liberty which can lead to far worse.

You can see all of the videos and resources here.

I have posted some of the key video content below the break, including a  film featuring three genocide survivors spanning 70 years, a film featuring Professor Philippe Sands and a short video where I sum up the points of the campaign.

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Can you draw a line between this case and Anisminic?

25 November 2017 by

Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017

Introduction

As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.

A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the

determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.

Fast forward 50 years, and another Act which says

determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.

Why?

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Announcement – new Commissioning Editor

24 November 2017 by

We are delighted to announce that Jonathan Metzer has been appointed the new Commissioning Editor of the UK Human Rights Blog.

Jonathan practises across a range of human rights-related areas, including public law, immigration, inquests and public inquiries. He will develop the work of the existing and previous editorial team in ensuring that the Blog remains one of the go-to resources for any reader interested in the latest developments in human rights law.

We thank the outgoing editors Michael Deacon and Hannah Noyce for their excellent work over the last 12 months.

Equal Civil Partnerships: Implications of Strasbourg’s latest ruling for Steinfeld and Keidan – Helen Fenwick & Andy Hayward

21 November 2017 by

Ratzenböck and Seydl v Austria (ECtHR) 26 October 2017 – read judgment

Equal civil partnerships divide opinions. For their proponents, access to such a status, and the legal benefits that follow, allows couples critical of marriage – whether same or different-sex – the ability to express their relationship through (in their view) a more appropriate, modern and egalitarian legal institution. Opponents question such a need in light of the availability of civil marriage, which has over centuries evolved and may not now necessarily be perceived as embodying the patriarchal or heteronormative values that its critics challenge. Calls for allowing different-sex as well as same-sex couples to enter civil partnerships in England and Wales have grown louder recently following the failed Equal Love case (Ferguson v UK), the production of several Private Members Bills and the on-going litigation in Steinfeld and Keidan v Secretary of State for Education, due to be heard by the Supreme Court in Spring 2018. The desire, however, for different-sex civil partnerships is not limited to this jurisdiction, and was recently explored for the first time by the Strasbourg court in Ratzenböck and Seydl v Austria. After exploring the background to this legal challenge, this post will critically analyse the reasoning of the Strasbourg Court and assess its implications for the challenge in Steinfeld.

The key argument this piece puts forward is that states should not maintain asymmetry of access to formal relationship statuses based on sexual orientation: if a state has introduced registered (civil) partnerships it should open them to both different and same-sex couples, an argument that also applies to marriage. The term ‘asymmetry of access’ will be used to cover: offering access to marriage for different-sex couples and no such access to same-sex ones who also cannot access any registered partnership scheme; offering access to marriage to different-sex couples and access to such a scheme to same-sex ones; offering access to either of two formalised relationship statuses to one group of couples, based on gender and sexual orientation, and access to only one such form to the other group.
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Minimum price of 50p on alcohol sales approved by the Supreme Court – for Scotland

17 November 2017 by

Scotch Whisky Association  v Lord Advocate and Another (Scotland)  [2017] UKSC 76 – read judgment

The Supreme Court has ruled that the introduction of minimum pricing into the sales of alcohol in Scotland will not constitute a disproportionate measure interfering with the free movement of goods and competition in the EU. The initial legislation that paved the way for minimum pricing was approved by the Scottish parliament five years ago but has been under legal challenge since. The Scottish Parliament had decided to address the health and social consequences arising from the consumption of  cheap alcohol by a minimum pricing regime. They did this by inserting in the Scottish licensing legislation an additional condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol. The minimum price is to be set by secondary legislation. The current proposal is 50 pence per unit of alcohol.
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Air quality breaches stops development which threatened to exacerbate them

13 November 2017 by

Gladman Developments v. SoS for Communities and Local Government, Interested Party:CPRE [2017] EWHC 2768 (Admin) 6 November 2017 – read judgment

 

An interesting example of how our planners must take air pollution concerns far more seriously in the light of the long-running ClientEarth litigation.

The developers wanted to build a total of 470 dwellings and 60 care units in Newington, Kent. Their application went to appeal before a Planning Inspector, and they lost on air quality grounds. They unsuccessfully sought judicial review of his decision.

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Experimental treatment? “All of life is an experiment” – New Podcast

13 November 2017 by

B (Applicant, acting as litigation in person) – and – D (by his litigation friend, the Official Solicitor) (1) The Ministry of Defence (2) [2017] EWCOP 15 Respondents – read judgement

Stem cell therapy has been very much in the news recently, as doctors have saved the life of a seven year old boy with a genetic disorder that caused the top layer of his skin to blister and flake away. After years of struggling with this painful and dangerous disease – antibiotics, bandages and even skin transplants were to no avail – the boy was on the point of death from bacterial infection. The skin contains its own supply of specialised stem cells, which allows the epidermis to be constantly renewed throughout our lives, with cells turning over roughly every month. This also allows scientists to grow grafts in culture, simply by taking a small sample. Specialists in Germany cultured centimetre wide pieces of his skin and engineered this tissue to accept the correct gene through viral transfer. The healthy patch of skin was then grown in the laboratory until enough of it was ready to be grafted back on to the boy’s body. Ultimately the team was able to replace 80% of the child’s skin. He is now understood to be leading a normal life at school, playing soccer and generally not displaying any of the dangerous side effects of gene therapy.

The relevance of this success story to this Court of Protection case will soon become obvious. In this hearing Baker J, deciding the best interests of D, a young man severely brain damaged after being assaulted by another soldier, had to determine whether his strongly held desire to travel to Serbia for stem cell treatment should prevail over the medical opposition to such a step. This was not a case of scarce allocation of public resources as D had the money from his compensation award to spend on this treatment.
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Inquiries into historical events have a troubled past: will history repeat itself?

10 November 2017 by

The announcement of a statutory inquiry into the contaminated blood scandal may be a major step towards uncovering the truth for those affected. But an inquiry into historical events has its own unique challenges and potential pitfalls. Before it even commences, can the Government ensure the inquiry retains the confidence of victims, families and the public?

Historical events

As Jim Duffy explains here, the scandal goes back to events of the 1970s and 80s. Around 7,500 patients suffering with haemophilia were treated within the NHS with contaminated blood products from the United States and elsewhere. Many died and many remain terminally ill. Since then, many of the victims and families have been left dissatisfied by the government’s response. Can the inquiry resolve their concerns?

Given the length of time since the events in question, it is no longer enough to narrowly examine the facts of what happened to individual victims. Time is no healer when spent in the dark. Rather, more questions require answers, emotions become fraught, and distrust is entrenched. Wider issues have come to the fore. In particular, as former-MP Andy Burnham stated in Parliament, there is a belief that there has been a “criminal cover-up on an industrial scale”. Earlier inquiries suggest there is a delicate path to tread.

Another £192 million?
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Independence and public inquiries – why you need it and how you can lose it

9 November 2017 by

Independence and public inquiries – why you need it and how you can lose it

 There is a scene in “Yes Minister” in which the beleaguered Jim Hacker is contemplating a public inquiry into the latest failing of his department.  He warily suggests to his Permanent Secretary, Sir Humphrey Appleby, that perhaps the judge chairing the inquiry could be leant on to come up with a favourable outcome.  Sir Humphrey is outraged at this violation of the separation of powers.  Surely the Minister wasn’t serious?  After all, wouldn’t it be better to appoint a judge who didn’t need to be leant on in the first place?

Jim Duffy’s recent post  on the Contaminated Blood Inquiry – and the importance of an inquiry being independent and being seen to be independent – brought this encounter to mind.  The ever more frequent calls for a ‘judge-led inquiry’ must be a source of both pride and concern to the judiciary.  Pride as ‘judge-led’ is a synonym for a forensic, thorough and above all independent tribunal to assess the matter in question.  We will come to the concern later.

Times have changed since the careers of Hacker and Sir Humphrey.  The Inquiries Act 2005 contains provisions intended to secure and display the suitability and impartiality of those charged with conducting a statutory inquiry (see in particular s.8 and 9).  When it comes to appointing a judge, the Act provides that the minister must consult with the Lord Chief Justice or another relevant senior member of the judiciary (s.10).  Sir Humphrey would be disappointed.
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