Media By: Conor Monighan


ALBA Conference 2019: A Review (Part 5)

5 November 2019 by

This post, along with those before it, summarises some of the main points of interest arising from the ALBA Conference 2019.

‘Reith Lecture (Judicial Power) Response’ – Chair: Mrs. Justice Thornton; Speakers: Lord Dyson, Sir Stephen Laws, Prof Vernon Bogdanor, Prof Meg Russell, Lord Falconer of Thoroton QC

Lord_Sumption_2013
Credit: Robin S Taylor

A prestigious panel offered its response to Lord Sumption’s Reith Lectures, followed by a reply from Lord Sumption himself.

In his lectures for the BBC, Lord Sumption argued that judges have excessively increased their power and invaded into the political sphere. The Human Rights Act 1998 and Judicial Review attracted particular criticism.

Lord Sumption’s original lectures are available from the BBC here. A recording of the full discussion is available on LawPod here, so this post draws out some of the key points.


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Grenfell, Prisons, and the Inability to Appeal – Round Up

4 November 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

GrenfellThe Grenfell Tower Inquiry released its first report into the disaster. Its findings included:

  • The refurbishment of Grenfell tower broke building regulations because it used a mixture of combustible cladding. This was the main reason the fire spread.
  • Firefighters were let down by poor training, leadership, equipment and plans. Junior firefighters arriving at the scene were “faced with a situation for which they had not been properly prepared”.
  • The ‘stay put’ advice used by the London Fire Brigade was wrong, and cost lives.

The report recommends that national guidelines for evacuating high-rise flats are created. It also seeks for a programme of regular inspections of high-rise flats and lifts

The Commissioner of the London Fire Brigade, Dany Cotton, attracted particular criticism from the media. Ms Cotton had said that although she was saddened by the loss of life, there was nothing she would have done differently. Sir Martin Moore-Bick, the Chair of the Inquiry, described her as showing “remarkable insensitivity” and suggested this showed an inability to learn from the tragedy.


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ALBA Conference 2019: A Review (Part 4)

2 November 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight

alba

Catherine Dobson: Costs in Public Interest Litigation

Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.


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ALBA Conference 2019: A Review (Part 3)

24 October 2019 by

This post, and those that follow it, summarises some of the main points of interest arising from the ALBA Conference 2019.

‘The Constitutionality of Ouster Clauses’ – Chair: Lord Justice Leggatt; Speakers: Professor Alison Young, Professor David Feldman, Professor Stephen Bailey

gchq

Earlier this year, the Supreme Court gave its judgement in R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents). The case concerned the Investigatory Powers Tribunal (‘IPT’), a specialist tribunal which was established by the Regulation of Investigatory Powers Act 2000 (‘RIPA’). The IPT hears complaints about certain public bodies, particularly concerning the Security Services.

s.67(8) of RIPA contains a so-called ‘ouster clause’, which held that “determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”.

The issue in Privacy International was whether decisions made by the IPT were judicially reviewable. A majority of the Supreme Court held that s.67(8) did not, in fact, oust the jurisdiction of the court. The panel analysed this crucial case in more detail.


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ALBA Conference 2019: A Review (Part 2)

15 October 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai

Jobcentre-007
Credit: The Guardian

Introduction: The ‘Benefit Cap’

Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).

Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.

In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)


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ALBA Conference 2019: A Review

7 October 2019 by

This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.

This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.

alba

The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.


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The Round Up: Prorogation, Kashmir, and Protests

2 September 2019 by

Conor Monighan brings us the latest updates in human rights law

guardian

Credit: The Guardian

In the News:

Last week, Boris Johnson decided to ask the Queen to prorogue (suspend) Parliament. The decision means that Parliament will be closed for 23 working days, reducing the amount of time MPs will have to pass legislation about Brexit.

Supporters of PM Johnson pointed out that Parliament has already been sitting for around two years. They have also suggested that proroguing Parliament is entirely proper because it is simply an exercise of a prerogative power. Finally, they argue that it will allow the government to hold a Queen’s Speech and outline its plans.

A number of figures spoke against the move:

  • Tom Watson (Labour) stated proroguing Parliament was an “utterly scandalous affront to our democracy”.
  • Nicola Sturgeon (SNP) has asked that MPs work together to stop Mr Johnson, or “today will go down in history as a dark one indeed for UK democracy”.
  • Dominic Grieve (Conservative) described it as “an outrageous act”.
  • Anna Soubry (Independent Group for Change) tweet that it was “outrageous that Parliament will be shut down at a moment of crisis as we face crashing out of the EU with no deal & for which there is no mandate”.

Ruth Davidson, who had been the leader of the Conservative Party in Scotland, quit. She said her decision was driven by political reasons and personal ones (she recently had a baby). The government whip, Lord Young, also resigned.

Demonstrations took place over the weekend. A judicial review, led by Gina Miller and her legal team, is also being launched.

Following the summer recess, MPs will return to Parliament on the 8th October.

In Other News….

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What is the correct standard to be applied in police misconduct cases? Plus a new inquiry launches, and cake goes to the ECtHR – the Round Up

19 August 2019 by

Conor Monighan brings us the latest updates in human rights law

cake

Credit: The Guardian

In the News:

An application in the Ashers ‘gay cake’ case has been lodged at the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.

Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve.
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Liberalising Abortion in NI, Tommy Robinson, and the lawfulness of Child Spies – the Round Up.

15 July 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

same s marriage

Credit: The Guardian

The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.

The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.

Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.

The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.

Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries.
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A Landmark Defamation Case and Child Spies: The Round Up

17 June 2019 by

Conor Monighan brings us the latest updates in human rights law

spy

Credit: The Guardian

In the News:

The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.

Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.

As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.

Much of the case will be heard in private over the next week.

In Other News….

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Secret Surveillance and a ‘Canadian Genocide’: the Round Up

3 June 2019 by

Conor Monighan brings us the latest updates in human rights law

LGBT

Credit: The Guardian

In the News:

The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.

Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.

The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.

Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.

In Other News….

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Landmark ruling for inquests and Chelsea Manning released from prison: The Round Up

13 May 2019 by

Conor Monighan brings us the latest updates in human rights law

Manning

Credit: The Guardian

In the News:

Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.

Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.

Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.

She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court.
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Court of Appeal upholds ‘acoustic shock’ and Lord Sumption’s comments on assisted suicide- the Round Up

22 April 2019 by

Conor Monighan brings us the latest updates in human rights law

L Sumption

Credit: The Guardian

In the News:

Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.

Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.

The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.

His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.

 

In Other News….

  • Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
  • Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
  • The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.

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The High Court orders a fresh inquest, dismisses a discrimination claim, and quashes a police officer’s compensation– the Round Up

18 March 2019 by

Conor Monighan brings us the latest updates in human rights law

IICSA

In the News:

The Independent Inquiry into Child Sexual Abuse (IICSA) heard evidence about Sir Cyril Smith, the former MP for Rochdale. It has been alleged that Sir Cyril Smith abused boys in the 1960s at a school and hotel. The allegations were investigated by the police, but no further action taken.

Lord Steel, the former Liberal leader, gave evidence to the Inquiry. He explained that an article in Private Eye caused him to approach Cyril Smith about the allegations. Lord Steel said that, following this conversation, he “assumed” the allegations were true.

Lord Steel explained he had decided not to act because the accusations were “nothing to do with me”. He “saw no reason to go back to something that happened during his time in Rochdale” and the events happened “before he was even a member of the Liberal Party or an MP”.

Lord Steel’s comments sparked anger and he has been suspended from his party. He has since stated that the matter was properly an issue for the police and the council, and that he was not in a position to re-open the investigation.

In Other News….

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Housing Association can discriminate on religious grounds. Plus fracking and indefinite detention: The Round Up

11 February 2019 by

Conor Monighan brings us the latest updates in human rights law

prison

Credit: the Guardian

In the News:

The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.

The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions.
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