Monthly News Archives: March 2018


New Zealand’s Parliament to consider assisted dying – David Seymour

28 March 2018 by Guest Contributor

David Seymour is a New Zealand MP sponsoring a Bill in support of assisted dying.

Our liberal history can be briefly sketched out in two stages. Establishing a bundle of rights and then expanding them to include a wider range of people. In one sense, the right to assisted dying is a continuation of this movement and perhaps its final chapter.

In dark ages past people had few dimensions of freedom and little self-expression. Most people had one option for spiritual thinking with severe penalties for deviance.  As for choice in sexuality, the electoral franchise, freedom of speech, unless you fitted in exactly the right box, forget it.

In my maiden speech to parliament, I borrowed heavily from AC Grayling’s excellent Towards the Light of Liberty where from the Inquisition to the Reformation through the abolition of slavery, the liberation of women and expansion of the franchise, the black civil rights movement and finally the LGBTI movement, the sphere of liberty was expanded and then eventually included all people.

The British Commonwealth has long been an important institution for advancing these liberties. The Treaty of Waitangi, which established ‘the same rights and duties as citizens of England’ for all New Zealanders, was an extraordinary document for colonial times marred by arrogance and violence by colonisers. Today, the Commonwealth Charter sets out an admirable set of values that would make the world a better place if only they were universally followed. They include access to health: voluntary euthanasia is merely consistent with this value.
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Round Up- Fried eggs, Facebook, and the right to choose one’s counsel

26 March 2018 by conormonighan

Conor Monighan brings us the latest updates in human rights law

fb

Credit: The Guardian

In the News:

The consultancy company Cambridge Analytica has come under fierce criticism for its treatment of Facebook users’ data. A whistle-blower, Christopher Wylie, alleged that Cambridge Analytica had gathered large amounts of data through a personality quiz, posted in Facebook, called ‘This is Your Digital Life’. Users were told the quiz was collecting data for research.
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The ‘reasonable citizen’ — Sergei Skripal

26 March 2018 by Dominic Ruck Keene

blood analysis.jpgIn Secretary of State for the Home Department v Sergei Skripal [2018] EWCOP 6, Mr Justice Williams made a best interests decision that blood samples could be taken by the Organisation for the Prohibition of Chemical Weapons from Sergei and Yulia Skirpal in order that the Organisation for the Prohibition of Chemical Weapons (OCPW) could undertake their own analysis to find evidence of possible nerve agents. Both Sergei and Yulia were and remain unconscious and in a critical condition, and were unable to consent to such blood samples being taken.

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Two New Podcasts: Private Hospital Liability

23 March 2018 by Rosalind English

We have posted two new episodes of Law Pod UK today.

Episodes 25  and 27 feature extracts from the seminar given by 1 Crown Office Row in February 2018 on the lessons learned from the Paterson litigation. These are free and available for download.

Episode 26  Law Pod UK: Hannah Noyce discusses vicarious liability in private hospitals and clinics

Episode 27 Law Pod UK: Dominic Ruck Keene summarises non-delegable duty in private hospitals and clinics

Seminar handout

Subscribe to Law Pod UK on  iTunes or on Audioboom.

Sensitisation to allergy is physical injury – Supreme Court

23 March 2018 by Rosalind English

Dryden and Others v Johnson Matthey [2018] UKSC 18 – read judgment 

We are all made of stuff, and that stuff is not inert because it’s organic matter. Changes at the molecular level happen all the time, through cell death and replenishment, growth and the constant attrition caused by cosmic radiation on our DNA.  Other changes are wrought by the environment or other organisms. Some changes are beneficial, even life saving, such as the removal of an appendix or the insertion of a pacemaker.  The production of antibodies by vaccination have eradicated many diseases.  Most of the time the body manages this itself.  Every time certain cells in the blood encounter a foreign invader, they recruit the immune system to come up with a focussed weapon. This is an antibody, which lies dormant until the threat (the antigen) arises again.  Antibodies are good things to have around until they’re provoked by enemies akin to the ones that created them, whereupon the body produces an allergic reaction to get rid of the toxin/allergen.

So, does the triggering of an antibody (an immunoglobulin molecule) constitute tortious injury, sounding in damages? This is the question raised by this case, and it goes to the heart of what “injury” is for the purposes of the law.
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Immigration Detention: One Step Forward, Two Steps Back — Sophie Walker

19 March 2018 by Guest Contributor

immigration centreNew legislation significantly curtails accommodation provision for those seeking release from immigration detention. The likely result is more and more people being held in immigration detention.

The fight to end to indefinite detention of immigrants pending their removal from the UK has been gathering momentum.  There have been parliamentary debates and expert reports, all critical of the Home Office policy of what effectively involves ‘warehousing’ immigrants in cramped and often unsafe conditions with no end in sight.

While there is no legal maximum for how long someone can be held in immigration detention, the Home Office can only use their power to detain if they intend to remove the person and can do so ‘within a reasonable period’.  If at the outset it is apparent that the person cannot be removed within a reasonable period they should not be detained at all. If it becomes apparent once detention has commenced that the person cannot be removed within a reasonable period, then the person should also be released. In addition, the Home Office should exercise appropriate diligence in their efforts to remove the person.

Despite these well-established restrictions on the power to detain, men and women are still held in detention centres for extended periods of time. In March 2018, a report by HM Inspectorate of Prisons of Harmondsworth Immigration Removal Centre found that 23 men had been held for over year, and one man had been held for four years.

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The Round-Up: Government wins benefits cap appeal, the scope of employee misconduct, and international crimes against humanity

19 March 2018 by eleanorleydon

Baby holds a woman's finger

Image credit: Guardian

DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.

Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:

the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.

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Who is it that doesn’t like Mondays?

18 March 2018 by Rosalind English

Moylett v Geldoff and Another (unreported)  Chancery Division (Carr J) 14 March 2018

Music nerds may remember with fondness the great copyright wrangle involving Procul Harum and Bach.   The focus of that dispute was the organ line in the 1967 hit Whiter Shade of Pale, and  Blackburne J’s judgment is imperative reading for anyone interested in the law’s dominion over music, ideas or intellectual property in general. Go to the end of this post for a reminder of that entertaining litigation and its outcome.

Less esoteric but potentially as interesting is this application brought before Carr J in the Chancery Division by the “well known music band”, the Boomtown Rats.
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New episode of Law Pod UK

15 March 2018 by Rosalind English

In our continuing reposts of Professor Catherine Barnard’s series on the legal steps to Brexit, we have reposted  her episode on the Draft EU Withdrawal Agreement – the Brexit political agreement turned into a legal document. Professor Barnard gives Boni Sones her own analysis of the text.

Listen to Episode 25 of Law Pod UK on Audioboom or iTunes.

The Round Up – Strikes, detainees, and was it a poison plot?

11 March 2018 by conormonighan

Conor Monighan brings us the latest updates in human rights law

Abbott

Photo credit: The Guardian

In the News:

Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.

The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.

This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website.
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Demolitions in the West Bank highlight a deep inequality — Josh Newmark

8 March 2018 by Guest Contributor

Josh Newmark is a History and Politics graduate from Durham University and an incoming History MSc at the University of Edinburgh, currently teaching in Salamanca. He is part of the youth-led #DontSettleForThis campaign with Yachad, the pro-Israel, pro-peace movement in the UK.

The security of a roof over one’s head, a space for personal and familial privacy… Having “a place to call home” is widely recognised as an essential prerequisite for human wellbeing. This is acknowledged across the political spectrum – from the phrase “property-owning democracy” shared by both Thatcherites and American liberal philosopher John Rawls, to left-wing movements for affordable housing. In Judaism, too, the value of having a home is recognised. A key aspect of Judaism’s story is learning from the experience of being a people in exile, yearning for a home – “love the stranger, for we were once strangers in Egypt” is a frequent refrain in the Torah. Moreover, the Jewish household is of central importance to Jewish life – with its important physical features, like the mezuzah (boxed prayer scroll attached to each door frame), and key practical functions, such as hosting the traditional Friday night family meal to welcome the Sabbath. Undoubtedly, this is one of the motivating factors for young British Jews’ repugnance towards the Israeli’s government continuing policy of demolishing Palestinian homes.

Yachad is a British Jewish NGO which promotes support for a political solution to the Israeli-Palestinian conflict within the Jewish community through education, debate, and advocacy. Under the hashtag #DontSettleForThis, young Yachad activists are raising awareness within the Jewish community of the demolitions of Palestinian homes, and pushing the UK government to help prevent these demolitions.

According to Israeli humans rights NGO B’Tselem, Israel has demolished at least 1,323 Palestinian residential units in the occupied West Bank, plus over 600 just in East Jerusalem, since 2006. This policy has taken homes from over 8,000 people in that time period, more than 50% of them minors. These figures exclude the demolitions which Israel controversially carries out upon the family homes of convicted or deceased terrorists. Rather, these are homes which are being demolished because they have been built without permits. While demolishing such structures might seem to be the right, even obligation, of a governing authority, only a little detail is necessary to make clear that this policy is an inflammatory and unjust policy which compounds the wider injustice of the occupation itself. The dual policy of allowing and stoking a Palestinian housing shortage whilst allocating land for well-planned, well-connected illegal Israeli settlements, often with illegal (even under Israeli law) structures tolerated on them, highlights the deep inequality inherent in the occupation.

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Listen Up! New episode of Law Pod UK just posted

7 March 2018 by Rosalind English

Our very own Commissioning Editor, Jonathan Metzer, is discussing with Rosalind English the right of appeal against refusal of a residence card under the EU immigration rules for family and extended family members of UK citizens. He has also written a post on this and the reference to the European Court of Justice in  Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC)  .

Listen to Episode 24 Law Pod UK on Audiboom 

Law Pod is also available for free download in iTunes

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Women “groomed, pimped and trafficked” as teenagers not required to disclose prostitution convictions to employers

6 March 2018 by Jo Moore

Demo 9 - Credit Making Herstory.png

Credit: Onjali Rauf from Making Herstory

R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice [2018] EWHC 407 (Admin) – read judgment

The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.

The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.

The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.

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The Round-Up: Deportation by Data Deals, Dubs, and a Step Towards Decriminalising Sex Workers

5 March 2018 by eleanorleydon

A doctor looks at a patient’s readings on a health monitor.

Photo credit: Guardian

In the News

UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.

Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.

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Worboys and Ullah: Do UK Courts have to follow Strasbourg to the letter?

2 March 2018 by Rosalind English

Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11read judgment

Matthew Flinn covered this Supreme Court case in his excellent analysis here. I focus on one point of disagreement between the judges, which is whether a court, before holding that the state owes an investigative duty for the actions of private parties, would require the clearest statement in consistent decisions of the European Court of Human Rights.

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