The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.
Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life.
While that sounds really nice, you might be wondering what exactly falls under biotechnology?
What is Biotechnology?
Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry.
Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.
The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.
It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year.
It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment.
The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition.
Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.
In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,
These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.
The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.
Stratas JA has said, “Administrative law matters”. Every individual’s life is affected, in some cases profoundly, by administrative decisions. Judicial oversight of administrative decisions engages questions of importance and sensitivity in democracies where separation of powers is an intrinsic principle. In the view of the Supreme Court of Canada, the act of judicial review by a court is a constitutional function that ensures executive power is exercised according to the rule of law. At the same time, review must be exercised without undermining the democratic legitimacy of the executive or the intention of the legislature. The standards applied by courts to determining the lawfulness of administrative decisions are therefore of central importance to the proper functioning of our country.
This and the following post will consider what a ‘reasonableness’ standard of review means in the contexts of Canadian and UK administrative law. The standard has recently been given new emphasis by the handing down of the judgment of the Supreme Court of Canada in Vavilov  SCC 65 in which the court restated its conception of reasonableness and how a decision should be analysed in light of that standard.
In the UK, a series of cases has revealed that jurisdiction’s Supreme Court grappling with reasonableness primarily in its relationship with the other standard of review, proportionality. As this essay will show, both Canadian and UK courts have struggled ever since the advent of judicial oversight of administrative decisions to formulate a standard of reasonableness which ensures unlawful decisions do not stand but does not allow the court to remake the decision that is the proper remit of the administrator.
In this article,Uzay Yasar Aysev and Wayne Jordash QC of Global Rights Compliance analyse the two cases which have been brought in the international courts relating to the persecution of the Rohingya people by the Myanmar authorities.
Readers may want to read the first article about this topic published on the Blog here.
On 11 November 2019, Republic of The Gambia initiated a case against Myanmar before the International Court of Justice (‘ICJ’ or the ‘Court’), alleging that the atrocities committed against the Rohingya people during “clearance operations” from around October 2016 violated the Genocide Convention (‘Convention’).
its application, The Gambia requested the Court to instate six provisional
measures. Provisional measures are ordered to safeguard the relevant, plausible
rights of the Parties that risk being extinguished before the Court determines the
merits of the case (LaGrand Case, para. 102). The Gambia contended that the Rohingya were facing threats
to their existence and had to be protected from Myanmar’s genocidal intent.
On 23 January 2020, the Court issued an Order granting four of the six provisional measures requested. Myanmar was ordered to:
measures within its power to prevent the commission of genocide against the
Ensure that its
military, any irregular armed units which may be directed or supported by it,
any organizations and persons which may be subject to its control direction or
influence, do not commit, attempt or conspire to commit genocide, or incite or
be complicit in the commission of genocide against the Rohingya;
measures to prevent the destruction and ensure the preservation of evidence
related to allegations of genocide; and
Submit a report to the Court on all measures taken to
give effect to the provisional measures order within four months and thereafter
every six months, until the Court renders a final decision.
Known as the world’s most persecuted ethnic group, the Rohingya have faced persecution and deprivation of their fundamental rights within Myanmar for decades. Effectively denied citizenship under the 1982 Citizenship Law, the Rohingya are one of the world’s largest stateless populations.
Following violent attacks in 2016 and 2017, there are now an estimated 909,000 Rohingya refugees living in Cox’s Bazar, Bangladesh. Undoubtedly, the Rohingya are the victims of a shocking array of international crimes, suffering ethnic cleansing, killings, sexual and gender-based violence, torture, forced starvation, enslavement, destruction of property, the arbitrary deprivation of liberty, and much more.
Once suffering in relative international silence, there is now growing recognition of their brutalisation, even if the precise legal categorisation may be debated. Indeed, building on the 2018 findings of the United Nation (‘UN’) Human Rights Council’s Independent International Fact-Finding Mission on Myanmar (‘FFM’) that there are reasonable grounds to conclude that “factors allowing the inference of genocidal intent are present” (para. 1441), there is growing international recognition that the apparent mass ethnic cleansing from Myanmar to Bangladesh, particularly in 2017, had an even darker purpose – the destruction of part or all of their people. Indeed, it is this debate that now promises some much needed attention.
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.
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.
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.
Gilham (Appellant) v Ministry of Justice (Respondent)  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).
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.
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.
Assuming that from now on you will always have to budget your costs? Maybe, but not necessarily…
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.
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
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.
Re AB (Application for reporting restrictions: Inquest)  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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