Media By: Guest Contributor


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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No Deal Brexit may be unlawful — a view from Rose Slowe

19 March 2019 by

Rose Slowe is an Honorary Research Fellow at University of Bristol Law School, an author on EU law, and a barrister at Foundry Chambers.

Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.

Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights.

The Miller litigation, while lacking in a critical respect, as discussed elsewhere on the Blog, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate.


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Reporting restrictions and the James Bulger murder – David Burrows

7 March 2019 by

In February 1993, two-year-old James Bulger was abducted, tortured and then murdered by two 10-year-olds, Jon Venables (JV) and Robert Thompson. As Sir Andrew McFarlane P says in the opening words ofVenables & Anor v News Group Papers Ltd & Ors [2019] EWHC 494 (Fam) (4 March 2019): ‘The family of young James Bulger were and are deserving of the greatest sympathy as the indirect victims of this most horrific crime.’ It was James’s father and his uncle who brought the question of publicity – or not – for JV back to court.

Their application was to vary a ‘confidentiality’ injunction. The application was made on the basis – said the applicants – that JV’s name and image are now freely available should any member of the public undertake an Internet search. Details of his identity, and locations with which he has been connected in the past, have therefore become ‘common knowledge’.


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‘Right to rent’ scheme causes landlords to discriminate, rules High Court

5 March 2019 by

Samuel March is a paralegal and is due to start the Bar Professional Training Course later this year.

R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin), Spencer J, 01 March 2019, judgement here

The government’s ‘hostile environment’ policy took a hit in a High Court judgement on Friday. Spencer J declared the “right to rent” scheme, laid out in sections 20-37 of the Immigration Act 2014, incompatible with the European Convention on Human Rights (ECHR). He also declared that a decision by the Secretary of State for the Home Department to roll out the scheme in devolved territories without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.

Background

The case challenged an element of the government’s ‘hostile environment’ immigration policy, which was recently rebranded the “compliant environment” following criticism.

The sections of the Act relevant to this case contained the provisions of the controversial “right to rent” scheme. This required private landlords to check the immigration status of tenants and potential tenants. Knowingly leasing a property to a disqualified person became a criminal offence, punishable by up to 5 years’ imprisonment, an unlimited fine, or both.

This claim was brought by the Joint Council for the Welfare of Immigrants (JCWI) a small charity seeking to ensure that “immigration law and policy are based on sound evidence, promote the rule of law and are underpinned by respect for human rights and human dignity.” They were supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (RLA).


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