Monthly News Archives: July 2020

Law Pod UK Latest Episode: Dignity in Dying in the age of Covid -19

13 July 2020 by Rosalind English

The campaign group Dignity in Dying has recently brought out a new book called Last Rights: The Case for Assisted Dying, by Sarah Wotton and Lloyd Riley, Director and Policy manager of the campaign group Dignity in Death. The book is designed to restart the discussion on how we provide dying people with greater choice at the end of life.

Even with the best palliative care, some people still suffer terribly at the end of life, as Sarah and Lloyd explain in this discussion. Episode 119 of Law Pod UK highlights the way in which the pandemic has brought death and dying to the centre of pubic discourse and how the time has come again to press for an inquiry on the blanket ban on assisted dying.

See my post referred to in the discussion on the latest Court of Protection case on respecting a patient’s wishes as to the manner of death.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

FGM protection order in child’s best interests – Court of Appeal

13 July 2020 by Rosalind English

A (A Child) (Rev 1) [2020] EWCA 731 (15 June 2020)

This was an appeal by the secretary of state against a decision of the President of the Family Division concerning the exercise of the family court’s jurisdiction to make a female genital mutilation protection order (FGMPO) under the Female Genital Mutilation Act 2003 Sch.2 Pt 1 para.1. The child concerned (“A”), was under imminent threat of deportation to Bahrain or potentially Sudan.  The original FGM protection order in relation to A was made by Newton J in December 2019. He said that

It is difficult to think of a clear or more serious case where the risk to A of FGM is so high.

Section 2 of the Female Genital Mutliation Act establishes the offence of assisting a girl to mutilate her own genitalia, where a person

aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.

Section 3 extends this to “assisting a non-UK person to mutilate overseas a girl’s genitalia”.

FGMPOS offer a legal means to protect and safeguard victims and potential victims of FGM. They are granted by the family court and are unique to each case. They contain conditions to protect a victim or potential victim from FGM, including, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected.

After the order is issued, the police receive a copy, together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms.

In this case the President of the Family Division had held that in exercising its discretion about making an FGM protection order, a family court was not bound to take into account, even as a starting point, a previous assessment of risk of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal in determining an asylum application based upon the risk of FGM upon return.

High Court rules on preliminary issues in challenge relating to alleged UK involvement in torture

9 July 2020 by Sapan Maini-Thompson

In R (Reprieve & Ors) v Prime Minister [2020] EWHC 1695 (Admin), the High Court made a preliminary ruling that Article 6(1) of the ECHR does not apply to the forthcoming judicial review of the Government’s decision not to establish a public inquiry into allegations that the UK intelligence services were involved in the torture, mistreatment and rendition of detainees in the aftermath of 9/11. It was further held that the claimants are not entitled to the level of disclosure of open material outlined in SSHD v AF (No 3) [2009].

Angus McCullough QC of 1 Crown Office Row was instructed as a Special Advocate in this case.

Lockdown challenge — permission refused

7 July 2020 by Dominic Ruck Keene

The Government will doubtless be relieved.

Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin).

LawPod UK: Dentists and Covid-19

6 July 2020 by Rosalind English

The spotlight during the pandemic has been on frontline workers in the medical profession. But if you think of it, the real hazards are to be found in the dentist’s surgery, where most interactions with patients involve an operation in the mouth, whether it be drilling, cleaning or extraction. Most of what a dentist or a dental hygienist does is what has become widely known as an AGP – “aerosol generating procedure”.

In the latest episode of Law Pod UK Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Supreme Court holds children’s hearings system is compatible with article 8

6 July 2020 by Daniel McKaveney

ABC v Principal Reporter and another

In the matter of XY [2020] UKSC 26

The Supreme Court recently dismissed two appeals concerning the role and rights of siblings in children’s hearings in Scotland. It held that the provisions of the Children’s Hearings (Scotland) Act 2011 in question were compatible with article 8 of the European Convention on Human Rights.Background

The appeals concerned whether a sibling is a “relevant person” for the purposes of the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’), which governs the children’s hearings system in Scotland.

A relevant person is defined as including a person who has parental responsibilities or rights in relation to the child (section 200(1) of the 2011 Act). If a person does not fall under this definition, they may still be classed as a relevant person under a procedure set out in sections 79-81. Section 81(3) provides that a person can be deemed a relevant person if it is decided that the person has, or recently had, a significant involvement in the upbringing of the child. In most circumstances, this would not include a sibling.

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Are “squalid” prison conditions and the response to the Covid-19 pandemic breaching human rights?

6 July 2020 by Jonathan Metzer

The latest reports of HM Chief Inspector of Prisons and the Parliamentary Joint Committee on Human Rights lay bare the conditions in some British prisons.

Some of the language that is used to describe living conditions in the Chief Inspector’s report is shocking – including “appalling”, “squalid”, “intolerable”, “extremely squalid” and beset with “vermin and filth”.

The Chief Inspector’s view is that such conditions “should not feature in 21st century jails”. This conclusion was expressed prior to the further impact caused by the Covid-19 pandemic.

Since the pandemic, the Government has introduced measures to address the risk of contagion including a blanket ban on visits since around 24^th March which has still not been revisited despite the Covid-19 threat level having been reduced to level 3 on 19^th June.

The conclusion of the Parliamentary Joint Committee on Human Rights is that the Government’s response and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison”.

In the view of this author, the evidence indicates that in several respects the UK may well be in breach of vital protections for prisoners and their families under Articles 3 and 8 of the European Convention on Human Rights (ECHR). This extended piece will examine these issues in detail.

Round Up 6.7.20 – A quiet week in the courts but not in the news…

6 July 2020 by Thomas Hayes

Protesters in Hong Kong. Credit: The Guardian. 

It has been a quiet week in the courts from a human rights perspective. The Supreme Court gave judgment on a divorce case and a social security fraud, and whilst the Court of Appeal and High Court were more forthcoming in terms of the number of decisions made, family law and commercial cases dominated. Legal buffs may however be interested to note Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB), in which the High Court applied Spanish law in a road traffic accident case, whilst celebrity watchers and students revising for their civil litigation exams may appreciate seeing how the court applied the test from Denton to grant Johnny Christopher Depp II relief from sanctions (who knew there was a Johnny Christopher Depp I?) – Depp v News Group Newspapers Ltd & Ors [2020] EWHC 1734 (QB).

A quiet week in the courts did not however extend to a quiet week in the news…

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Dunn v FCO — the opening skirmishes

6 July 2020 by Dominic Ruck Keene

In R (Dunn) v The Foreign Secretary and the Chief Constable of Northamptonshire [2020] EWHC 1620 (Admin) the Divisional Court dismissed two applications made in anticipation of the forthcoming rolled up judicial review arising out of the death of Harry Dunn.

Harry Dunn was killed when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas, the wife of a member of the administrative and technical staff of the US Embassy based at RAF Croughton. The Claimants (Harry Dunn’s parents) sought to adduce expert evidence from a retired diplomat Sir Ivor Roberts, and also made an application for specific disclosure.

The Divisional Court summarised the background to the applications as being the judicial review of:-

1. The decision made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity under the Vienna Convention on Diplomatic Relations;
2. The allegedly unlawful obstruction by the Foreign Secretary of a criminal investigation by the Northamptonshire Police;
3. The allegedly unlawful acceptance by the Northamptonshire Police of the advice of the Foreign Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
4. The alleged breach of the investigative duty under Article 2 ECHR as a result of the Foreign Secretary and the Northamptonshire Police’s error of law as to Mrs Sacoolas’s diplomatic immunity;
5. The allegedly unlawful ceding of sovereignty over a military base in the UK without Parliamentary consent; and
6. The alleged suspension of the laws of the land without Parliamentary consent through affording diplomatic immunity to family members of the relevant personnel.

Altruistic cell donation: Court of Protection

2 July 2020 by Rosalind English

A NHS Foundation Trust v MC [2020] EWCOP 33 (23 June 2020)

How to determine “best interests” in the case of an adult lacking capacity, where a proposed medical donation for the benefit of a close relative may cause lasting harm to the donor?

US Supreme Court outlaws discrimination on basis of sexual orientation or gender identity

2 July 2020 by Matthew Flinn

It is just over five years since the landmark United States Supreme Court decision in the case of Obergefell v Hodges (26 June 2015), and just over fifty-one years since the Stonewall riots (28 June 1969). To the many important dates in Pride Month must now be added 15 June 2020, the date of the Supreme Court’s decision in Bostock v Clayton County, which confirmed that is, in fact, illegal to fire an employee because they are homosexual or transgender. 

It might seem surprising to many readers of this blog that there was a question about this. In the United States. In 2020. Yet even here in the UK it can hardly be said that employment protections for gay and transgender people have existed since time immemorial. It was only in December 2003, for example, that the UK Government enacted the Employment Equality (Sexual Orientation) Regulations 2003, which prohibited employers from committing direct and indirect discrimination, victimisation and harassment “on grounds of sexual orientation” (for which thanks is owed to the European Union, which mandated such legislation pursuant to the Equal Treatment Framework Directive of November 2000).

It can be said, however, that the legislation in the UK is sufficiently clear to put the question beyond doubt. Since 2010, sexual orientation and gender reassignment have been “protected characteristics” for the purposes of general discrimination law, pursuant to sections 4, 7 and 12 of the Equality Act 2010. 

The law in the United States is not so explicit. Rather, Title VII of the Civil Rights Act 1964 makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, colour, religion, sex, or national origin.” The question for the Supreme Court in Bostock was whether the prohibition of discrimination because of an individual’s sex also entailed a prohibition of discrimination on the basis that an employee was gay or transgender. 

Three cases were being appealed together, and the facts in each of them were simple, and stark:

1. Mr Gerald Bostock worked for his local authority (Clayton County) in Georgia as a child welfare advocate. After a decade of employment, during which time the County won national awards for its work, Mr Bostock made the fateful decision to start participation in a recreational gay softball league. He was promptly fired. 
2. Mr Donald Zarda was a sky-diving instructor in New York. He tried to reassure a female customer who had concerns about a tandem skydive with a male instructor by confirming that he was “100% gay”. She complained, and he was dismissed days later. 
3. Ms Aimee Stephens worked in a funeral home in Michigan. At the start of her employment she presented as male. Two years into her employment she underwent psychiatric treatment for “despair and loneliness” and was diagnosed with gender dysphoria. Her clinicians recommended that she start to live as a woman. Several years later, when she informed her employer that she would be returning to work as a woman after her vacation, she was fired because it was “not going to work out”.   

In all three cases the employers openly acknowledged that their motive for dismissing their employees was that they were gay/transgender; but they said that was a wholly lawful thing to do. The plaintiffs argued that it was not, pursuant to a proper reading of Title VII of the Civil Rights Act 1964. 

The decision was hotly anticipated. In the United States, the appointment of judges to the Supreme Court is lamentably politicised, and after President Obama’s nomination of Merrick Garland had been blocked by the Republican-controlled Senate in 2016, and the current occupant of the White House had apparently assured a 5-4 conservative majority by appointing two justices (most recently, following a harrowing confirmation process, Kavanaugh J), socially progressive groups could be forgiven for awaiting the judgment with some trepidation. These background issues are discussed further on the blog here.

On this occasion, they need not have worried. The split of votes was a refreshingly decisive and bipartisan 6-3, including Chief Justice Roberts. What’s more, the majority opinion was written by Gorsuch J, a “conservative justice” appointed in 2017.

The opinions make for a thoroughly enjoyable read (don’t be put off by the 172 pages — it is mostly appendices to Alito J’s dissenting opinion). As a student of English law, I am used to reading judgments which are characterised by temperate language, caveats, a degree of circumspection, or even consternation. In contrast, at least in this case, the opinions of the justices (particularly Gorsuch and Alito JJ) read like the most passionate of essays or written arguments — almost as if they were advocates rather than judges.  

Capacity to consent to chemotherapy?

1 July 2020 by Rosalind English

University Hospital and Warwickshire NHS Trust v K and another [2020]  EWCOP 31

This case is a timely illustration of the unenviable task faced by judges, doctors and mental health professionals during Lockdown.