Monthly News Archives: June 2018


Equality won’t wait – Supreme Court rules in Equal Civil Partnership

28 June 2018 by

Civil-partnership-sign-495x495As predicted on this Blog, the Supreme Court has made a declaration of incompatibility covering sections one and three of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership).

In Steinfeld and Keidan, R (on the application of) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (27 June 2018) the Court found that the provision was contrary to article 14 of ECHR taken in conjunction with article 8 of the Convention.

To an extent, this was not a surprise as, by the time the case reached the Supreme Court, the government had conceded that the current situation in which same sex couples have had a choice between marriage and civil partnership since 13th March 2014, whereas heterosexual couples only have the option of marriage, is discriminatory.

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Law Pod UK latest on Brexit

26 June 2018 by

Two years from the vote to leave the European Union, Catherine Barnard, Professor of EU Law at Cambridge, considers the rocks and hard places of the Brexit negotiations. She speculates on what is meant by what exactly is meant by staying “within the remit of the CJEU”, something that has drawn a lot of fire, but has no legal meaning.

We may all be jaded with Brexit coverage. But do listen to Catherine’s podcast, it is remarkably unpartisan and clear on the facts.

Catherine’s series 2903cb is freely available on soundcloud and our repost is on iTunes and other podcast platforms, Episode 38 of Law Pod UK.

The ‘straight civil partnership’ challenge: All you need to know before the Supreme Court Judgment

25 June 2018 by

supreme courtThe Supreme Court will hand down Judgment on Wednesday 27th June 2018 in R (on the application of Steinfeld and another) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary).

The claimants are Rebecca Steinfeld and Charles Keidan who contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. They do not want to enter into marriage as they say that it is patriarchal and is not consistent with their values.

The Civil Partnership Act 2004 created a regime for the recognition of same sex relationships modelled on that in Vermont which pretty much entirely replicated the rights and responsibilities available through marriage. One of the only anomalies was a less favourable provision for survivor benefits from an occupational pension but even that was equalised courtesy of the Supreme Court in Walker v Innospec Ltd.

The exclusion of different sex couples from Civil Partnership started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of that was that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

This Blog has covered the story of the Steinfeld from the very beginning. The original hearing was in front of Mrs Justice Andrews and the arguments were examined by Professor Rob Wintemute in these pages. Ultimately, as reported by Adam Wagner, Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

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Bars to the Bar: Diversity in the Legal Profession Before the Canadian Supreme Court – Michael Rhimes

21 June 2018 by

On 15th June 2018 the Canadian Supreme Court handed down two interesting and closely related judgments involving Trinity Western University: Law Society of British Columbia v Trinity Western University and Brayden Volkenant 2018 SCC 32 and Trinity Western University and Brayden Volkenant v Law Society of Upper Canada 2018 SCC 32

Trinity Western University (TWU) is a Christian University – indeed, in its own words, it is “a distinctly Christian university” (here, page 2). It takes “the Bible as the divinely inspired, authoritative guide for personal and community life” (here, page 1) and seeks“to develop godly Christian leaders”.

Prospective TWU students must sign a ‘Community Covenant’. That Covenant requires them to commit to “reserve sexual expressions of intimacy for marriage” and abstain from“sexual intimacy that violates the sacredness of marriage between a man and a woman” (here, page 3). This rule applies both on and off campus(the Abstinence Rule, see paras [1] and [319]).

The Law Society of British Columbia (LSBC) refused to approve TWU’s faculty of Law because of the Abstinence Rule (I will call this the Decision). The question before the Supreme Court of Canada was whether this was lawful. The issue in Law Society of Upper Canada dealt with a similar decision of the Law Society of another province(Ontario)to approve the TWU law school.  
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Slamming the door on system failure in medical negligence inquests – Jeremy Hyam QC

19 June 2018 by

R (Parkinson) v. HM Senior Coroner for Kent and Others – read judgment
If anyone had the lingering hope that the door to argue “system failure” in any but the most exceptional case of medical negligence remained ajar after the decision of the Grand Chamber in Lopes de Sousa, then the recent Divisional Court decision in Parkinson  shows the door has been well and truly slammed shut.
Background facts
On 9th January 2011 Mrs Kathleen Parkinson died at the A & E Department of Darent Valley Hospital. She was aged 91 and dying. She had been taken to hospital by her son. On arrival in A & E she was assessed by a nurse and then by a Dr Hijazi. Dr Hijazi formed the view that she was dying, that there was no useful treatment that could be given her, and that as she was in the last moments of life, doing anything would not have been beneficial to her.  Her son who, wanted her to be treated, became aggressive and eventually attempted to perform mouth to mouth resuscitation although advised against this by A and E staff. Mrs Parkinson deteriorated rapidly and died soon after arriving.
An inquest was convened and although Article 2 was kept under review throughout the inquest, the Coroner determined that it was not an Article 2 inquest.  He rejected the submission that he ought to enter a verdict of gross negligence manslaughter and found that Mrs Parkinson died of natural causes and that any additional treatment that could have been provided to her in the short time she was at the Darent Valley Hospital would have been ineffective given the advanced stage of dying she was in. He refused the request to provide a report on the prevention of future deaths under paragraph 7, Schedule 5 of the Coroners’ Justice Act 2009.

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Supreme Court rules on true employment status of a contractor in Pimlico Plumbers case

18 June 2018 by

Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29 – read judgment

The Supreme Court has unanimously dismissed Pimlico Plumbers Ltd’s appeal and upheld the Employment Tribunal’s ruling that the Respondent – Mr Smith – a plumbing and heating engineer had been:

(a) a “worker” within the meaning of section 230(3) of the Employment Rights Act 1996;

(b) a “worker” within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833)

(c) in Pimlico’s “employment” within the meaning of section 83(2)(a) of the Equality Act.

Questions concerning the true employment status of individuals who are presented to the paying customer as being an integral part of the business in question are increasingly common. Despite being presented to the end customer as such, the purported legal reality is that the individual is self-employed for both tax and employment law purposes. This is partly what is described by such arrangements being part of the so-called “gig economy”.
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Home Office to pay damages for detention of immigrant claimant

18 June 2018 by

R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260 – read judgment

The Court of Appeal has upheld an award of damages for false imprisonment in the context of immigration detention.  The Court found that an unlawful curfew which required residence at a specific address between specific hours each day and which was backed by the threat of criminal sanctions and electronic tagging gave rise to the tort of false imprisonment.

Background law and facts

The claimant was released from prison in 2013 and then detained in an immigration centre.  He was then released on bail which came with restrictions on where he could live.  When the bail period ended, the secretary of state tried to maintain these residence restrictions.  She purported to use her powers under the Immigration Act 1971 Schedule 3 Paragraph 2(5) to impose a curfew on the claimant which required him to stay at his home address between 11pm and 7am every day.  The claimant was fitted with an electronic tag and told that he would face a fine or imprisonment if a court found that he did not comply with the terms of the curfew.  This curfew was in place for two and a half years, from February 2014 until July 2016.
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Inquiries and Inquests seminar highlights now available on Law Pod UK

15 June 2018 by

In Episode 35 Matthew Hill discusses the lessons and warnings from the Bloody Sunday inquiry and the Hillsborough inquest in a talk recorded at One Crown Office Row’s 2018 seminar.

In Episode 36 , drawn from the same seminar, Emma-Louise Fenelon discusses the challenges around secrecy, anonymity and public information in major inquests and inquiries

In Episode 37  Gideon Barth considers when public inquiries are established or inquests reopened.

 

Law Pod UK is available for free download from iTunes, The Podcast App, Overcast, Audioboom and a number of other podcast platforms. Please rate and review us to help LawPodUK continue to grow. 

Supreme Court rules on challenge to abortion ban in Northern Ireland

11 June 2018 by

supreme courtIn the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27

On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.

The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.

In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.

Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.

 

The Background

The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.

These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:

The prohibition of abortion in cases of

  • Serious malformation of the foetus;
  • Pregnancy as a result of rape; and/or
  • Pregnancy as a result of incest

was argued to be incompatible with

  • Article 3 (the prohibition of torture and of inhuman or degrading treatment);
  • Article 8 (the right of everyone to respect for their private and family life); and/or
  • Article 14 (the prohibition of discrimination)

In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:

  • Fatal foetal abnormality
  • Rape up to the date when the foetus is capable of being born alive
  • Incest up to the date when the foetus is capable of being born alive

The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.

The NIHRC appealed to the Supreme Court in London.

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New Podcast: Will AI outwit our laws?

7 June 2018 by

In Episode 34 of Law Pod UK, Rosalind English talks to Professor Karen Yeung of Birmingham University about questions of civil liability of algorithm-run systems, the difficulties of regulating something we cannot truly predict, and the so-called “alignment problem” – how to align the utility function of intelligent machines with the values of the human race, which are very difficult to define.

Professor Yeung is Interdisciplinary Fellow in both the Law and Computer Science Schools at Birmingham, and recently gave evidence before the House of Lords Select Committee on AI. We posted on the report ‘AI in the UK: ready, willing and able?’ in April.

Law Pod UK is available for free download from iTunes, Overcast and Audioboom.

The “gay marriage” case that never was: Three thoughts on Coman, Part 2 – Michael Rhimes

6 June 2018 by

Michael Rhimes is the fourth référendaire to Judge Vajda at the Court of Justice of the European Union. He was not involved in the Coman case. This blog post is written in a purely personal capacity and reflects only the author’s views.

 

I have three points on the judgment, which is summarised in part 1.

1. A narrow judgment: A free movement case, not a gay marriage one.

The judgment is a narrow one. On a basic level, for the “Coman” rule to be engaged, a number of conditions must be satisfied:

    1. At least one of the parties to the marriage must be a Union national;
    2. One of the Union nationals in question must have exercised their free movement rights (otherwise Article 21 TFEU will not be engaged, see C-434/09 McCarthy, paras 49 to 55)
    3. The couple must be married in a Member State that solemnises same-sex marriage.

In addition, the reasoning of the Court focuses on the right to free movement in Article 21 TFEU. The Coman judgment is not one that is predicated upon the growing recognition of same-sex marriage within the EU (on this, see my third comment, and para 56 to 58 of the Opinion) or, indeed, on fundamental rights (on this, see my second comment). Member States have to recognise the third country same-sex spouse of a Union citizen, but only so that Union citizen may freely exercise their free movement rights.
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A Judicial Masterpiece? US Supreme Court rules on ‘gay cake’ case — Robert Ward

6 June 2018 by

US Supreme Court.jpgThis week the US Supreme Court handed down judgment in Masterpiece Cakeshop et al v Colorado Civil Rights Commission et al. This is a decision which is of interest in the UK for its factual similarity with the case of Lee v Ashers Baking Company, otherwise colloquially known as the “gay cake” case which is currently being considered by the UK Supreme Court (and which has been discussed previously on this blog).

In both cases Christian bakery owners refused to create certain cakes for customers on the basis that it would contravene their religious objection to gay marriage. The judgments in Masterpiece may foreshadow some of the arguments to be discussed in the upcoming UK decision.

In this case, the US Supreme Court held that the Colorado Civil Rights Commission failed to approach the matter in accordance with its obligation of religious neutrality. The baker’s appeal was therefore upheld — but only on technical grounds.

 

Background

The owner of Masterpiece, Jack Phillips, refused to create a wedding cake for a same-sex marriage ceremony between two of his potential customers, Charlie Craig and Dave Mullins. He did, however, say that he would be prepared to make birthday cakes or other products. His stated reason for refusing to make a wedding cake was that to do so would have been a personal endorsement and participation in a ceremony and relationship which contravened his deep and sincerely held religious beliefs.

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The CJEU said yes! Partners in same sex marriage are “spouses” Part 1 – Michael Rhimes

5 June 2018 by

Coman and others, Case C‑673/16,  5 June 2018 – read judgment

Can the term “spouse” in Article 2(2)(a) of the Citizenship Directive (Directive) refer to a spouse of the same sex as the other party to the marriage (same-sex spouse)?

This (fairly dry) question was at the heart of the Coman case. Of course, as the Advocate General recognised in his Opinion, para. 2 it touched on other (more juicy) questions of dignity and the diverging understandings of marriage in the 28 Member States.

In this post I will present the facts and reasoning in the judgment. My following post will offer three comments on it. 

Background Facts

Mr Coman, a dual national of Romania and the US, met Mr Clabourn Hamilton, a US national, in New York in 2002. They married in Brussels (Belgium) in 2010. In 2012, Mr Clabourn Hamilton asked the Romanian authorities to provide him with the documents to allow him to stay in Romania, with Mr Coman, as his spouse, for longer than three months.

The request was denied.
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Legal personhood for non-human animals: Part II — Dr Linda Roland Danil

1 June 2018 by

 

The second part of this guest contribution argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals. Part I can be found here.

1920px-Humpback_stellwagen_edit.jpg

Introduction

On December 26, 2017, the Connecticut Superior Court dismissed a petition for a writ of habeas corpus filed by the Non-Human Rights Project (NhRP) – which I introduced in an earlier post – on behalf of three elephants that the NhRP argued are illegally confined in Goshen, Connecticut. The issue, similarly to previous cases involving four chimpanzees, was whether the court should grant the petition for a writ of habeas corpus because the elephants are ‘persons’ entitled to liberty and equality. The court dismissed the argument and held that the ‘petition is wholly frivolous on its face.’

Discussion

One of the things that is implied in the refusal to grant personhood to non-human animals, in my view, is the strong aversion to the notion that one day a human being may find his or her rights trumped by those of a non-human animal.

In my earlier post, I argued that we are also animals, but different – and by this I further elaborated that we are different insofar as we have disavowed our animal nature in order to properly construct and enter the socio-symbolic order and human culture – through what, for example, Freud called a process of ‘organic repression’ in Civilization and Its Discontents, or what Joanne Faulkner has described as ‘an abandonment of the animal within.’

By no means is this meant to be construed as a bad thing – it is who we are – but being different does not necessarily always mean better. To argue that human beings are better would be to ignore the ways in which other animals are unique in their own way.

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