Author: David Hart QC

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No bans on local authority disinvestment decisions

R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment

Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.

Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.

The key bit of the impugned guidance was that those running local authority pensions must not use their policies to

pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;

or

“pursue policies that are contrary to UK foreign policy or UK defence policy”.

The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.

No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.
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Strasbourg on excessive libel damages

Independent Newspapers (Ireland) Ltd v. Ireland     ECtHR, 5th section, 15 June 2017 – read judgment here

The Strasbourg Court has decided that an award of damages in an Irish libel case was disproportionate – but, as I shall explain – it has not told us what a proportionate award would have been.

This odd position was reached in an application by a newspaper group against the Irish state. It was triggered by a massive jury award (1.872m euros) for what by all accounts was a deeply unpleasant libellous campaign by the paper. But the immediate cause of the litigation arose from an appeal to the Irish Supreme Court, who, by a majority, would have reduced the award to 1.25m euros. 

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Strasbourg grants emergency hearing in Charlie Gard appeal

Yates v United Kingdom – here

Update: On 19 June the parents lodged a substantive application with the Strasbourg Court. 

In my last post on this case, I explained that the Supreme Court had granted a short stay to 5pm Friday 9th June to enable the parents to ask the Strasbourg Court to intervene. So far, the courts have ruled in favour of Great Ormond Street’s application to withdraw artificial ventilation from Charlie.

Shortly after my post, on Friday 9 June, the ECtHR ordered an emergency hearing. To that end, it requested the UK to keep Charlie alive until the end of 13 June.

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Charlie Gard: Supreme Court turns down appeal, now all depends on Strasbourg

Yates and Anor v Great Ormond Street for Children 

Earlier this week, Rosalind English posted on the Court of Appeal’s decision here. The case was heard by the Supreme Court during the afternoon of 8 June, but the SC agreed with the courts below that the Hospital was entitled to withdraw artificial ventilation. 

Lady Hale gave a short explanation of her reasons: see here and my summary below.

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What can reasonably be expected of junior doctors

FB v. Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment

All the advocates in this case were from 1 Crown Office Row, Elizabeth-Anne Gumbel QC for the claimant/appellant FB, and John Whitting QC and Alasdair Henderson for the hospital. None of them were involved in the writing of this post.

FB fell ill with meningitis when she was just one. The illness was diagnosed too late, and she suffered brain damage. This appeal was against the judge’s dismissal of the claim against the hospital, where she was seen, some time before she was admitted and the infection treated. All agreed that avoiding the time between being seen and being admitted would have led to the brain damage being avoided. 

But should the junior doctor have picked up enough about her condition to admit her?

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Purdah: Government should obey the law in the run-up to an election

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R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here

Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough.  The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.

The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.

The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.

But the only justification for the delay was Purdah.

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Supreme and Strasbourg Courts square off on Art. 6 and housing

Poshteh v Royal Borough of Kensington & Chelsea S [2017] UKSC 36, 10 May 2017 – read judgment 

For the last 15 years, whether the right of the homeless to suitable council accommodation is an Art.6(1) ECHR civil right has been argued over in the courts.  And the question arose again in today’s judgment of the Supreme Court.

Ms Poshteh had been imprisoned and tortured in Iran, and asked her local council in London to house her as she was homeless in the UK. She then rejected the offer of a flat because she said its windows reminded her of those in her Iranian prison cell. This rejection was held fatal to her housing claim, as we shall see.

To understand the Art.6 point, we need to have a quick look at the council’s housing duties for the homeless.

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