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.
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.
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  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’.
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  EWHC 452 (Admin), Spencer J, 01 March 2019, judgment here
The government’s ‘hostile environment’ policy took a hit in a High Court judgment on Friday. Martin 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.
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).
At the end of January the Investigatory Powers Commissioner published his first annual report for 2017. Its coverage of errors provides some very welcome transparency. But one matter remains opaque and exposes a legislative and policy challenge: when serious mistakes are made, who finds out?
In this post I set out what the IPC report says in this regard, explain the legislative framework, and then identify the challenges and choices for both law and policy. The two points I highlight are:
There is a policy choice underpinning the IPC report about what information to present, and what not to present. It would be helpful and appropriate for the IPC to provide more clarity about how often people were affected by errors but notinformed of it.
There are policy and legislative challenges that remain with regard to whether people will – as it currently seems – neverbe informed that they were affected by a serious error.
Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.
Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson UKHL 1,  AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:
I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)
The evolution of international human rights law (IHRL) in the UN era has seen a paradigm shift away from a view of international law as applying solely to states and their relations with other states, to a focus on the rights of individuals and the duties states owe to citizens. As articulated in the Universal Declaration of Human Rights, certain rights are so fundamental as to be universal in scope based on our common humanity. As Reisman notes‘no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law.’
The question is how these inalienable rights, expressed so forcefully on the international level, can be transposed into domestic law. One way is through the process of judicial interpretation. However, this poses a challenge in dualist systems where, traditionally, courts do not take international law into account, unless implemented by national legislation. This reluctance to engage with unincorporated IHRL is what the 1988 Bangalore Judicial Colloquium—a group including such luminaries as Michael Kirby, Ruth Bader Ginsburg, Anthony Lester and P.N. Bhagwati—sought to address. The resulting Bangalore Principles, concluded that:
It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes—whether or not they have been incorporated into domestic law—for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.
Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law
A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed.
Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.
In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.
Open and closed
judgments may be handed down. The latter will not be seen by non-state parties,
their lawyers or the public.
there have been heavy restrictions on access to and reporting of criminal
terrorism cases, most notably Incedal.
CMPs and closed
judgments are by nature a departure from fundamental rule of law standards of equality
of arms and open justice. The Supreme Court pointed this out in Al
Rawi and the Special
Advocates have been highly critical of them. Nonetheless, there is no sign that the CMPs
will disappear. Instead, the trend has slowly been towards managing them and
finding ways to mitigate some of the deficiencies.
A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.
My response to the proposals – as I saw things then – is on my blog here. Thoughts of divorce reform throw up two important human rights issues: one a direct Article 6 question; and the other – which it is surely time for law reformers and the government to confront? – is a discrimination point (Art 14).
But first a little history. The then Labour government, on Leo Abse MP’s private member’s bill, passed with (more or less) approval of the Church of England, the Divorce Reform Act 1969 (in force from 1 January 1971). It was consolidated into Matrimonial Causes Act 1973 (MCA 1973) which represents the modern law and the modern statutory underpinning for financial distribution on divorce or nullity. Mirror provisions apply for same gender couples: Civil Partnership Act 2004. Wholly different finance rules apply for unmarried cohabitants.
The Matrimonial Causes Act 1973 (MCA) section 1 is very simple. There is one ground for divorce: irretrievable breakdown of marriage (s 1(1)). To prove that ground a petitioner (P) must prove one or more of five facts: adultery; behaviour making it unreasonable for P to live with the other spouse/partner (R); desertion for two years; living apart for two (with consent); or five years.
Reformers – including from their inception, the group of family law solicitors, now Resolution – have objected to the blame inherent in the first two facts, and the tendency which this may produce to leave a nastier taste, than need be, in the mouth of divorcees.
The atrocities that took place in Europe during the Second World War were a major catalyst for moving away from this state-centred view of international relations. As Johannes Morsink notes in his meticulous historyof the drafting of the UDHR, the Holocaust was the single most important event that shaped its writing.
The UDHR recognises that ‘all human beings are born free and equal in dignity and rights’ regardless of their race, sex, national origin or other status. But did it go far enough? After all, the vast majority of the earth’s inhabitants are nonhuman. Just as individual humans are particularly vulnerable to the excesses of state and other forms of concentrated power, so too are animals particularly vulnerable to abuse at the hands of humans.
The tyrannical exercise of human power over the other animals is ubiquitous, whether it’s subjecting them to painful biomedical experiments, destroying their natural habitats, forcing them to perform in circuses and aquariums, or industrially rearing and exterminating them for food. Are we systematically violating the rights of animals when we treat them like this? Ought we take steps to rectify this with a Universal Declaration of Animal Rights?
A 13-year-old boy, L, was excluded for physical violence at school. L suffered from autism, anxiety and Pathological Demand Avoidance; it was common ground that the episodes of violence were as a result of these conditions.
It was also common ground that, but for the effect of Reg. 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (‘the 2010 Regulations’), L would meet the definition of having a ‘disability’ found at section 6 of the Equality Act 2010 (‘EA 2010’), as he had physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
But section 6 of the EA 2010 must be read in conjunction with the 2010 Regulations. The effect of Reg.4(1)(c) of the 2010 Regulations is to carve out from the definition of ‘disability’ those ‘impairments’ which manifest themselves in:
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
In C&C the school argued that L’s violent behaviour amounted to ‘a tendency to physical…abuse of other persons’ for the purposes of the 2010 Regulations, thereby removing the protection from discrimination that he would otherwise be afforded by the EA 2010.
Previous cases had decided that behaviour which amounted to a ‘tendency to physical…abuse’ was not protected under the Equality Act 2010 in the case of children with behavioural difficulties.
However, C&C reversed this line of authority.
The First Tier Tribunal had found, in line with the established case law, that L did not fulfil the definition of ‘disability’ under section 6 EA 2010 by virtue of the operation of Reg. 4(1)(c).
On appeal, Tribunal Judge Rowley was tasked with deciding whether the current interpretation of Reg. 4(1)(c) of the 2010 Regulations was compatible with Article 14 read with Article 2 of Protocol 1 (A2P1).
The Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP vocally opposed proposals to withdraw the UK from the ECHR and repeal the Human Rights Act. An expert group appointed by the First Minister Nicola Sturgeon will report this year with recommendations on how Scotland “can continue to lead by example in human rights”, and appears to be considering incorporating a range of rights from international human rights law into the Scottish legal system.
In environmental rights however, the lack of progress is conspicuous. As David Hart QC explained, the Aarhus Convention aims to protect the right to live in an environment adequate to health and wellbeing – the foundation on which other human rights are built. It recognises the rights of NGOs and members of the public to access information, participate in decision-making, and access justice. These rights encourage citizens to get involved in environmental decision-making. Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are denied or national environmental laws are broken. Critically, access to justice must be “not prohibitively expensive”.
2018 brings a new development. New protective expenses orders rules for environmental litigation in Scotland were created last week. This post examines these rules, and argues that they remain out of line with the Convention.
The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.
In 1997 the European Court of Human Rights (ECtHR) determined in D v UK(Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.
The current leading domestic authority is N v Secretary of State for the Home Department  UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:
For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]
Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK(Application no. 26565/05).
In K & AM, R v Secretary of State for the Home Department  EWHC 2951 Mostyn J was concerned with subsistence payments for victims of modern slavery. The case concerned whether the Home Office’s cut to payments made under this country’s internationally agreed obligations to provide support to victims of trafficking constituted a breach of the rights of the victims. The court gave judgment for the claimants, finding that the cut was unlawful.
As the international media has become full of whispers as to just where Asia Bibi might be offered asylum, discrimination has once again been to the forefront of legal bulletins at home. Most notably, the story of Rehana Popal’s treatment at the hands of solicitors who requested that she return her papers after their client demanded a ‘white, male barrister’, has made waves in the news. Whilst this runs entirely against the solicitors’ code of conduct and, indeed, the Equality Act 2010, Ms Popal, the English Bar’s only Afghan-born female barrister, has stated that this has not been the first occasion upon which she has been subjected to such discriminatory treatment. Continue reading →
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