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Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.
The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.
Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).
The European Court of Justice. Image Credit: The Guardian
The courts open again for Michaelmas term today, but in the meantime the round-up has the latest on a fresh set of challenges to government and NHS policy, plus a successful Brexit reference to the ECJ.
Firstly, a legal action seeking to establish whether the UK can unilaterally revoke Article 50 of the Lisbon Treaty has been referred to the European Court of Justice by the Court of Session, Scotland’s supreme civil court.
The action was brought by a cross-party group of six Scottish MPs, MEPs and MSPs, and the Good Law Project. The case was initially rejected in June as “academic and hypothetical”, but on appeal judges rejected the government’s core argument that the question was “academic” given that their policy is to leave the EU. Lord Carloway, Scotland’s most senior judge, commented: “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU.”
The judgment accordingly decriminalises gay sex, in a landmark ruling for gay rights. Chief Justice Dipak Misra said in his decision that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary.”
The 160-year-old law was imposed on India by the British empire as part of a package of laws against public vice. Thursday’s judgment follows 24 years of legal challenges: most recently, the Delhi high court ruled against section 377 in 2009, but was overturned by the supreme court in 2013.
The breakthrough for lawyers came in August 2017, when the supreme court held that there was a fundamental right to privacy. In an unprecedented move, five judges commented in that judgment that the 2013 section 377 decision was wrong.
Trinidad & Tobago’s high court will also rule this month on whether to decriminalise sex between men, and similar rulings on decriminalising gay sex are awaited in Kenya and Botswana.
In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.
Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:
“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.
The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor:Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.
On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.
This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’
In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’
NT 1 & NT 2 v Google LLC:A businessman has succeeded in a landmark ‘right to be forgotten’ action against Google, resulting in an order for the de-listing of search results relating to his spent conviction. Warby J heard the cases of two anonymous businessmen (NT1 and NT2), both with spent convictions, and upheld the latter’s claim. Each made further claims of misuse of private information: again, NT2’s claim was found to succeed.
R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford:in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].
Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:
the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.
UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
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