Media By: Guest Contributor


Alex Ewing: “Bedroom tax” unlawful – Strasbourg Court

12 November 2019 by

J.D. and A v the United Kingdom (nos. 32949/17 and 34614/17) – read judgment

Much may have changed in the political world since the Coalition Government introduced its controversial ‘bedroom tax’, but the legal fall-out from the policy continues. The European Court of Human Rights has delivered its verdict on the compatibility of the scheme with the prohibition on discrimination set out in Article 14 of the European Convention on Human Rights. The Strasbourg Court has found that the policy discriminated unlawfully against women at risk of domestic violence.

Background

As is well known, in 2012 the United Kingdom government introduced new regulations with the effect that those in social housing with an ‘extra’ bedroom had their housing benefit reduced: the so-called ‘bedroom tax’. The purported aim of the policy was to save money and to incentivise those with an ‘extra’ bedroom to either move property or take in a lodger thereby resulting in a saving of public funds.

It is not difficult to imagine why someone might have an extra bedroom but have strong reasons (related to disability or gender) for not moving house. The Government sought to make provision for such cases through a discretionary scheme operated by local authorities but funded by central government.


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Children Act 1989 and a child’s rights thirty years later

6 November 2019 by

Child rights in 2019

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989 (30 years ago); and it was in force from October 1991. It was a major reform of children law which required everyone – parents, children (when of ‘understanding’), judges, social workers, health professionals and lawyers – to learn a new set of legal concepts and attitudes. But what about children’s rights? And what has happened to the law’s regard for those rights since 1989?

The Act required courts to consider a child’s ‘wishes and feelings’ when that child’s welfare was in issue in a court. In parallel with this, United Nations Convention on the Rights of the Child 1989 Art 12.1 – though not formally part of the Act – says:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.


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Whistleblowing judges: protected by human rights?

18 October 2019 by

Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment

The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.

In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).


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A Climate of change? Taking stock of the Urgenda case with a Supreme Court ruling on the horizon

8 October 2019 by

Where one looks across the piste of emergent significant climate litigation – that is, important cases in courts around the world that deal significantly with issues related to climate change – the case of State of Netherlands v. Urgenda (hereafter ‘Urgenda’looms as large as most, if not any, court ruling to date.

This case, brought by the eponymous Dutch NGO Urgenda, has been rightly held up by many lawyers, commentators and environmental activists concerned to protect our planet from the harmful impacts of anthropogenic climate change as an important testament to the capacity for human rights law to assist in grappling meaningfully with hard problems posed by climate change in the courts. 

Here, The Hague Court of Appeal ruled in October 2018 that the State was required to adjust the Netherlands’ national greenhouse gas emissions reduction target for 2020 upward from 20% to 25% (measured on 1990 emissions levels). This example of national courts ordering a state to adopt a more stringent climate mitigation target is unprecedented at the present time.

In addition to being of particular interest to human rights lawyers and legal analysts, including in these pages where key elements of the ruling have been summarised and discussed by David Hart QC, the broader ripple-effects of the case have become a motivating force in the wider context of climate activism, including in relation to some of the climate protests that have been springing up lately around the world.


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No Deal Brexit risks reversing human rights progress in extradition law

28 August 2019 by

The UK Government’s vow to leave the European Union “whatever the circumstances” on the 31st October has left the UK hurtling towards a no-deal Brexit this Halloween, but what does this mean for the rights of people subject to future extradition between the UK and the EU?

For the last 15 years, extradition between EU states has functioned under the European Arrest Warrant (EAW). The EAW is a fast track extradition measure that works on the basis of mutual recognition — the principle that the decision of a court in one Member State is carried out by the courts in another Member State.

Despite appearances in the negotiations, this is one area where the UK and the EU seem to agree on the need for continued close cooperation that largely mirrors current arrangements — the Political Declaration agreed by the UK and the EU envisaged ‘efficient and expeditious’ extradition arrangements.


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Costs budgeting is not inevitable – Charlie Cory-Wright QC

26 August 2019 by

Assuming that from now on you will always have to budget your costs? Maybe, but not necessarily…

Introduction

Generally speaking, we lawyers dislike procedural change. While we may well understand that a particular change is necessary and we will certainly recognise that we need to adapt to it when it comes, such changes nonetheless tend to make us feel ignorant and highly uncomfortable. We have to treat any new procedural regime as a known unknown, which presents pitfalls for the unwary, at least until we become familiar with it. And in the meantime, a culture of half-knowledge develops, an uncertain and dangerous combination of a little learning, anecdote, and false assumptions. This very often leads to negative over-simplification. 

The typical common lawyer’s attitude to costs budgeting is a good example of this. There will be many litigators who are fully familiar with the new regime, who, maybe on a weekly basis, have to provide their own draft budgets (and to try to agree those set by their opponents), and therefore know their way around and navigate it quite happily. However, for many of the rest of us, the budgeting regime still, even now, feels like an inflexible and inscrutable monolith for which we have to relearn all we know every time we approach it.


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‘With great power comes great responsibility’ – contributory negligence post-Montgomery

21 August 2019 by

Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.

Might Uncle Ben’s words prove prescient in the context of medical negligence?

Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill.

Montgomery v Lanarkshire affirmed a transition from patients as passive receivers of care to active consumers by making the collaborative patient-doctor relationship a legally enforceable right. However, as yet patients are not expected to share responsibility for a negative outcome. Medical paternalism may now be dead but judicial paternalism appears to be alive and well. However, contributory negligence is a necessary counter-weight in this balance and it must urgently be applied to restore equilibrium.


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Seeking a secret inquest? A lesson in how NOT to go about asking for reporting restrictions

1 July 2019 by

This article, by Bridget Dolan QC, is a slightly edited version of a piece which first appeared on the UK Inquest Law Blog. The original post can be found here.

Re AB (Application for reporting restrictions: Inquest) [2019] EWHC 1668 (QB) 27.6.19 (judgment here)

When seeking any order it always helps to make the right application, to the right court, following the right procedure.   Although when it does go horribly wrong it at least provides valuable learning for the rest of us.

So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.


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Investigation into abuse at Brook House IRC risks failure to meet requirements of Article 3

19 June 2019 by

MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening) [2019] EWHC 1523 — judgment not yet on Bailii but available here.

The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.

Background: The Panorama exposé

MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.

The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.

On 7 September 2017 the BBC’s Panorama programme aired a documentary Undercover: Britain’s Immigration Secrets. This showed footage recorded secretly by a Detention Custody Officer (DCO) at the IRC.


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Supreme Court quashes decision to declare mother ‘intentionally homeless’

18 June 2019 by

Samuels v Birmingham City Council [2019] UKSC 28

In unanimously allowing an appeal against a decision to declare the appellant intentionally homeless due to her inability to pay her rent, the Supreme Court affirmed that non-housing benefits are not designed to create a surplus that can be used to account for insufficient housing benefits.

Factual Background

The appellant, Ms Samuels, was an assured shorthold tenant of a property in Birmingham, where she lived with her four children. Having fallen into rent arrears she was given notice to leave and subsequently applied to the respondent council as homeless under Part VII of the Housing Act 1996. The council instead decided that she was intentionally homeless on the grounds that her current accommodation was affordable and it was only due to the appellant’s deliberate decision not to pay the rent that had resulted in her becoming homeless.

At the time that Ms Samuels left the property she was entirely dependent on social security benefits which amounted to a total of £1,897.84 per month. This figure comprised: (a) housing benefit (£548.51); (b) income support (£290.33); (c) child tax credit (£819.00); and (d) child benefit (£240.00). Excluding the housing benefit, the total available for living expenses was £1,349.33.

Ms Samuels’ rent was £700, leaving a shortfall of £151.49 when compared to her housing benefit, whilst she calculated her other monthly expenditure to be £1,234.99, comprising: (a) food/household items (£750); (b) electricity (£80); (c) gas (£100); (d) clothes (£50); (e) TV license (£43.33); (f) school meals (£43.33); (g) travel (£108.33); (h) telephone (£20); and (i) daughter’s gymnastics (£40).

Overall, Ms Samuels was left in the unfortunate position of having expenses totalling £1,934.99 with only £1,897.84 worth of social security benefits to cover these expenses.


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“No revolution” says the Supreme Court as it rules on defamation

17 June 2019 by

Lachaux v Independent Print Ltd and another [2019] UKSC 27

The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.

The factual background

Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.

Mr Lachaux brought libel actions against three newspapers in respect of five articles.


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Proselytising nurse’s dismissal upheld by the Court of Appeal

30 May 2019 by

Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818

The Court of Appeal unanimously ruled that a nurse’s dismissal for improper proselytising was not unfair and that the hospital trust’s decision was not in contravention of the claimant’s rights as guaranteed by Article 9 of the European Convention on Human Rights.

The claimant, a committed Christian, had been employed as a band 5 nurse by the Trust since 2007. Following a medication error, she had been given a final written warning and transferred to work in a pre-operative assessment role. In this role the claimant was required to go through a pre-operative form with the patients. The form required the claimant to make a simple inquiry into the patient’s religious beliefs; importantly “it did not open the door to further religious discussion.” [7]

In March and April 2016 several complaints were made by patients about the over-zealous religious preaching of the claimant, with one patient being told shortly before major bowel surgery that he had a better chance of survival if he prayed to God.

Following these complaints the matron gave the claimant both oral and written warning that her proselytising was not acceptable. The claimant confirmed that she would not engage in religious discussion unless prompted by the patient.

Two further complaints were made in May and the claimant was suspended. Whilst suspended a further complaint was made alleging that the claimant had forced a patient to sing Psalm 23 out loud in what he described as a “very bizarre” encounter that was “like a Monty Python skit.”

The trust investigated the claims and after a disciplinary hearing the claimant was dismissed for repeated and inappropriate misconduct, including a breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) code which prohibits nurses from expressing their own personal views in an inappropriate way.


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The GDPR v Machine Learning Algorithms

10 May 2019 by

Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.

Josef. K the protagonist of Kafka’s novel ‘The Trial’ was an ambitious and successful banker prior to his unexpected arrest. The criminal charges brought against him were never explained because they were beyond the comprehension of all but the most senior judges. Attempting to understand his guilt, consumed K’s every thought – he was distracted at work, subservient to his lawyer and ultimately docile when led to his execution. ‘The Trial’ eloquently argued that transparency is a prerequisite of accountability. In the Age of the Algorithm, Kafka’s novel is now more relevant than ever.

Machine learning algorithms increasingly regulate our lives making decisions about us in finance, education, employment and justice. Ultimately, it will become pervasive in most, if not all aspects of decision making in the foreseeable future. But what is a machine learning algorithm? How does it decide? What rights do data subjects have? This article aims to answer all three of these questions.


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Brexit: Is the UK’s ‘Constitutional Moment’ here at last?

17 April 2019 by

The scene at the signing of the US Constitution

Codified constitutions are most commonly adopted following a major schism with the previous order. For example, following an armed uprising such as the American War of Independence or the French Revolution. The sweeping away of the old regime, of necessity, demands the creation of new fundamental principles and rules to organise the State. A codified constitution also presents an opportunity to set out the core values on which the nation can rally around. It is commonly asserted that the lack of such a critical break in UK history since the 17th century explains the absence of a codified constitution.


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High Court suspends Home Office deportations policy

21 March 2019 by

R (Medical Justice) v Secretary of State for the Home Department [2019] CO/543/2019, Walker J, 14 March 2019, written reasons here

The High Court delivered the latest in a series of blows to the Government’s ‘hostile environment’ immigration policy on Thursday.

Walker J granted Medical Justice an interim injunction which will prevent the Home Office from removing or deporting people from the country without notice.


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