By: Rosalind English

Law Pod UK Latest Episode: Belfast special report. Elections, the Northern Ireland Protocol and non-diminution of EU rights

9 May 2022 by Rosalind English

Voting for the Northern Ireland Assembly took place on Thursday 5 May. This year, for the first time, Sinn Fein looks set to win a majority of the seats. Whether the Democratic Unionist Party agrees to the power sharing arrangement where it is relegated to second place remains to be seen. What continues to be hotly debated is the Northern Ireland Protocol, put in place to avoid a “hard border” between Northern Ireland and Ireland which of course is still part of the EU single market.

But the Protocol isn’t only about trade. Under Article 2 the UK government has made an important commitment regarding the rights of Northern Ireland’s citizens to equality, non-discrimination, transparency and a range of other rights protected under European Union law. Article of the 2 Protocol is a very new provision, applying the acquis communitaire of the CJEU to Northern Ireland, even though NI is part of post Brexit EU.

In our latest episode Rosalind English meets UKHRB Northern Ireland correspondent Anurag Deb in Belfast two days after the elections to discuss what this EU rights provision means for the citizens of Northern Ireland.

Law Pod UK latest episode: the computer says no!

22 April 2022 by Rosalind English

In Episode 163, Rosalind English talks to Ariane Adam and Tatiana Kazim of the Public Law Project about automated decision making (ADM) in the public sector, the problems of transparency and automation bias where these decisions affect people’s rights. This interview was held shortly after the House of Lords Justice and Home Affairs Committee published its report  on new technologies and the application of the law.

We discuss a number of issues, in particular those that arose in the Post Office “Horizon” accountancy scandal, and the case of R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438. The defendant, responsible for appraising clinical benefits and cost-effectiveness of health care interventions, had refused to provide the claimant with a fully executable version of the model it used to assess the cost-effectiveness of the claimant’s drugs. The Court of Appeal held that procedural fairness required release of the fully executable version of the model [66]. It rejected the defendant’s claims that disclosure would undermine confidentiality or be overly costly, noting at [65] that the court should be ‘very slow to allow administrative considerations of this kind to stand in the way of its release’. 

The PLP has also published a summary of the JHAC report here.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

Conviction of doctor under assisted suicide prohibition not in breach of Convention

13 April 2022 by Rosalind English

Lings v Denmark (Application no. 15136/20)

The European Court of Human Rights has ruled that states have a broad margin of discretion in applying their criminal law to cases of assisted suicide. The applicant’s conviction may have constituted an interference with his rights, but that interference was prescribed by the Danish criminal law, which pursued the legitimate aims of the protection of health and morals and the rights of others. Denmark had not acted disproportionately by convicting him.

Law Pod UK recently ran an episode with former Court of Appeal judge  Sir Stephen Sedley and Trevor Moore, the director of the campaign group  My Death, My Decision, in which we dealt with this difficult subject in detail. Sir Stephen is a victim of Parkinson’s disease and his contribution to the debate is profoundly important. I have therefore quoted extensively from the article Sir Stephen wrote for the London Review of Books in October 2021, “A Decent Death”.

Those campaigning for a change in the law in this field object to the use of the word “euthanasia” and I have respected this position in the following case report. It should be noted at the outset that the applicant physician was a member of an association called “Physicians in Favour of Euthanasia”. This is the English translation. The Danish suggests something closer to “assisted dying”: ” Aktiv Dødshjælp”.

Reproductive Coercion and Control: allegations of abuse in child contact cases

7 April 2022 by Rosalind English

In Episode 162 Clare Ciborowska and Richard Ager, both family law experts from the Brighton Annexe of 1 Crown Row, talk about the difficult subject of reproductive coercion where such allegations arise in child contact cases. Fact finding hearings, Scott schedules, safeguarding enquiries and risk assessments are proceedings about children’s interests: how is the court to assess and weigh allegations of reproductive coercion and control, where the victims of such abuse are reluctant to repeat the trauma by reliving the details.

Cases referred to:

 Griffiths v Tickle [2021] EWCA Civ 1882

Re H.N. and Re H.E. [2021] EWCA Civ 448 

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

Gas from Mozambique in difficult times for energy: breach of the Paris Agreement?

28 March 2022 by Rosalind English

R. (on the application of Friends of the Earth Ltd) v Secretary of State for International Trade/Export Credits Guarantee Department (UK Export Finance) [2022] EWHC 568 (Admin)

The claimant (FoE) applied for judicial review of the decision by the Secretary of State to provide export finance and support in relation to a liquified natural gas project in Mozambique.

The mission of the International Trade/Export Credits Guarantee Department (UKEF) is to ensure that no viable UK export fails for lack of finance or insurance from the private sector, while operating at no net cost to the taxpayer. It is afforded a significant margin of appreciation when considering factors when deciding whether to provide this finance and support. Indeed it has been the first UK Government Department to assess climate change impacts in the context of a long-term foreign project with many public interest considerations.

Background facts

The project comprised the development of offshore deepwater gas production facilities connected to an onshore gas receiving and liquefaction facility. It was to be operated by the first interested party (Total Mozambique) and funded via the second interested party (a financing company). UKEF acknowledged that climate change impacts and the Paris Climate Change Agreement were factors that ought to be taken into account alongside other factors in making its decision in relation to the project. A report was prepared summarising the climate change matters considered by UKEF, including that the potential Scope 3 greenhouse gas emissions from the use of the project’s exported liquid natural gas would be very high, and that it was unlikely that Mozambique would attract significant international investment into the renewables sector without first being in receipt of financial resources from investment into sectors such as natural gas.

The European Response to Conflict in Ukraine: a Legal Analysis. Summarised on Law Pod UK

17 March 2022 by Rosalind English

Episode 161: Just days before Russia resigned from the Council of Europe, the Centre of European Law at King’s College London held a rapid reaction seminar considering what role can EU law play in the current conflict in Ukraine. The distinguished panel, chaired by King’s College Reader in Law Oana Stefan, included Professor Takis Tridimas, Professor of European Law at KCL, Roman Petrov, Head of the International and European Law Department at the National University of Kyiv-Mohyla, and others. We are very grateful to King’s College for allowing Law Pod UK to summarise the main points made by the experts and raise the question: does EU law present any potential way of this quagmire?

The Dickson Poon School of Law, King’s College London, is recognised as one of the best law schools in the world. It recently launched its MSc Law and Professional Practice.

Law Pod UK new episode: Can we drain Putin’s swamp in Londongrad?

10 March 2022 by Rosalind English

Barely two weeks after Russian tanks rolled into Ukraine, the Economic Crime Bill was rushed through the House of Commons. This one of the measures this country has taken to cleanse itself of “dirty money” from Russia and other countries by setting up a register of overseas entities and their beneficial owners and requiring overseas entities who own land to disclose their identities. In Episode 160 Rosalind English talks to Oliver Bullough, a journalist who has lived and worked throughout the former Soviet Union. His latest book, Butler to the World, makes a forceful point about how Britain has become a servant to all comers as long as they pay enough. Not just the banks and estate agents; lawyers are complicit too, in his view:

We have essentially given their oligarchs a back door to a fair dispute resolution process that they can deprive their fellow citizens of

Will these new legislative measures work? Only if our enforcement agencies are properly resourced, says Bullough. Just four “unexplained wealth orders” have been made since they were introduced by the Teresa May government in 2018. Perhaps it takes a crisis like the current one to give this legislation some force.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

Law Pod UK: Latest Episode

21 February 2022 by Rosalind English

“A Decent Death” is the title of an article written by former Court of Appeal judge Stephen Sedley, and published in the London Review of Books, to which Sir Sedley is a frequent contributor.

In Episode 158 of Law Pod UK, Rosalind English considers the points made by Sir Stephen in his erudite and forthright column with Trevor Moore, Chair of the assisted dying campaign My Death, My Decision.

With clips from Sir Stephen’s presentation of his talk, we consider the contradictions in the law which still renders assisted dying a criminal offence, but allowed Coronavirus restrictions to be lifted to enable people to travel to end their lives at Dignitas in Switzerland; the stressful possibility faced by relatives returning from Switzerland that they are at risk of being prosecuted under the 1961 Suicide Act, and the constant buck-passing of reforms to this Act between the courts and Parliament.

As Sir Stephen commented in his talk, the “historical anathema”, of punishing either unsuccessful suicides or their families, lives on in the undifferentiated crime of assisting a person to commit suicide.

The present-day offence fails – signally – to differentiate between the intervener who, out of self-interest or perversion, helps to ensure that a suicide attempt succeeds, and the individual who, out of compassion, gives a rational fellow being the help he or she needs to end a life that has become medically unbearable.

For those of you who have listened to this episode, here is another reflection from Sir Stepen, on the obligation on family members returning from Switzerland, to protect themselves from prosecution under the Suicide Act by reporting themselves to the police.

On self-incrimination, I think there’s possibly more to be said. The senior police officer or crown prosecutor whose desk the case reaches may be personally (even doctrinally) hostile and decide – armed now with a full ‘confession’ given in the hope of clemency under the DPP’s policy – to prosecute. In that event there is no defence of compassion; the jury may have to convict. I find this a terrifying scenario.

Stephen Sedley

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

A question of standing

18 February 2022 by Rosalind English

The Good Law Project and The Runnymede Trust, R (on the application of) v The Prime Minister and Anor [2022] EWHC 298 (Admin) (15 February 2022)

This was an interesting ruling on the matter of standing, something that has fallen rather by the wayside since it formed the subject of much satellite litigation in the 1990s. In essence, the Court ruled that the GLP had no standing to bring this claim. Despite its articles of association, whose purposes include the provision of sound administration and equality, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or benevolent purpose ancillary”. Such a general statement of objects could not confer standing on an organisation:

That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case. [58]

Arguments before the Court

The GLP and the Runnymede Trust brought a challenge to the government’s decision to appoint two individuals to head Covid projects such as the Test and Trace programme (Baroness Harding of Winscombe (Dido Harding) was one of the individuals named). Mike Coupe, Director of Testing, NHS Test & Trace, was the other.

The claimants contended that the government had a practice of appointing people to positions critical to the government’s response to the COVID-19 pandemic without open competition, that only candidates with some relevant personal or political connection to the decision-maker were appointed, and that, even though the positions to be filled were senior and strategically important, the person appointed was unpaid. The Claimants said this gave rise to indirect discrimination on grounds of race and/or disability. They made other complaints about the process used by the Defendants.

The Defendants disputed all these claims on their merits. In addition, they contended (a) that the matters complained of had now been overtaken by events rendering the claims academic, and that for that reason, the claims should not be determined by the court; (b) that the claims had been brought too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also one further matter, which the Court considered in the context of the standing issue, although it was conceptually distinct. That was whether the decisions challenged were amenable to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review.

Best of Law Pod UK 2021

13 January 2022 by Rosalind English

In our latest episode I and co-presenter Emma-Louise Fenelon have selected and put together some of our favourite snippets from the past year. This episode ranges from Artificial Intelligence, the government’s abandon with Henry VIII powers, to vicarious trauma in lawyers dealing with traumatic casework and the Henrietta Lacks claim against a pharmaceutical company for profiting from her cell lines in 1951.

This selection is by no means comprehensive and we’ve had to leave many deserving episodes out in the interests of brevity. For those wanting to keep abreast of their CPD requirements or just after a good informative listen, go back to some of our episodes on Medical and Inquest Law, Loss of Chance in clinical negligence, and “Historical” Crimes: Ireland’s unmarried mothers and their children.

We have been building on our impressive audience figures around the world, with listeners in over twenty countries including the United States, New Zealand, Spain, Saudi Arabia and Taiwan. In the summer of 2021 we passed the half a million listeners mark.

As we settle into the new year we have plenty of interesting names and topics in the pipeline for you. Law Pod UK is one of the longest running legal podcasts from barristers’ chambers in the UK and we have commanded sufficient authority and respect to gain access to big names, such as the founder of the Magnitsky Act, Bill Browder, and former chief prosecutor for England and Wales Nazir Afzal OBE.

Happy New Year, and stay tuned!

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Gay marriage-cake case declared inadmissible by Strasbourg Court

7 January 2022 by Rosalind English

Lee v. the United Kingdom (application no. 18860/19)

The European Court of Human Rights has, by a majority, declared the application inadmissible. The decision is final.

Background facts and law

The case concerned the refusal by a Christian-run bakery to make a cake with the words “Support Gay Marriage” and the QueerSpace logo on it which the applicant had ordered and the proceedings that had followed. The following summary is based on the Court’s press release.

The applicant, Gareth Lee, is a British national who was born in 1969 and lives in Belfast. He is associated with QueerSpace, an organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.

Although same-sex marriage had been enacted in the rest of the UK in 2014, it was made legal in Northern Ireland only in 2020.

In 2014, Mr Lee ordered a cake for a gay activist event set to take place not long after the Northern Irish Assembly had narrowly rejected legalising same-sex marriage for the third time. He ordered it from Asher’s bakery. The cake was to have an image of Bert and Ernie (popular children’s television characters), the logo of QueerSpace, and the slogan “Support Gay Marriage”. He paid in advance.

Enforced quarantine in hotels: a breach of the right to liberty?

27 December 2021 by Rosalind English

Hotta and others, R(on the application of) v Secretary of State for Health and Social Care and another [2021] EWHC 3359 (Admin)

This was an application for permission to challenge to the Managed Hotel Quarantine (MHQ) scheme. MHQ was put into place under Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.

The claimants contended that the scheme violated the Article 5 ECHR rights of those who were subjected to it. A particular focus of the proposed claim for judicial review was to identify the category of travellers who came to (or back to) England from Red List countries into the MHQ scheme, and who were required to remain within the scheme, notwithstanding that they could demonstrate that they had been vaccinated.

Tackling climate change: human rights campaigners or shareholders? Law Pod UK latest

15 December 2021 by Rosalind English

In this week’s episode of Law Pod UK Rosalind English reports from the UK Bar Council’s 19th Annual Law Reform Lecture, exploring the role of law reform in the context of climate change. You will hear excerpts from the speeches given by Inger Andersen, Under-Secretary-General of the UN and Executive Director of the UN Environment Programme, and Lord Carnwath of Notting Hill, a former UK Supreme Court judge.

The Paris Agreement of 2015 (United Nations)

References made in Lord Carnwath’s address are to the following cases:

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)

State of the Netherlands v. Urgenda Foundation (Dutch: De Staat Der Nederlanden v. Stichting Urgenda), Supreme Court of the Netherlands, 20 December 2019 (unofficial translation here)

Juliana, et al. v. United States of America, et al.,  947 F.3d 1159 (9th Cir. 2020)

Future Generations vs. Ministry of Environment and Others, Supreme Court of Coloumbia, 5 April 2018

Milieudefensie et al. v. Royal Dutch Shell plc (26 May 20212. This ongoing claim is based on the Urgenda decision, which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens).

Full written speeches are available on the Bar Council’s website.

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Please remember to rate and review us if you like what you hear.

Mandatory vaccination for care home workers not unlawful nor in breach of ECHR

26 November 2021 by Rosalind English

Peters & Anor, R (On the application of) the Secretary of State for Health and Social Care & Anor [2021] EWHC 3182 (Admin), 2 November 2021

This was a renewed application by the claimants for permission to proceed with a judicial review challenge to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which requires a registered person who runs a regulated activity in a care home to ensure that any person entering the premises has been vaccinated, unless for clinical reasons that person is exempt.

These new regulations regarding the mandatory vaccination of care workers came into effect on 11 November 2021. The claimants, both employed by care homes, challenged the legality of these regulations (passed under the Health and Social Care Act 2008). Whilst the claimants accepted that the 2021 Regulations fell within the scope of the 2008 Act, they argued that s.45E of the Public Health (Control of Disease) Act 1984 was engaged and, when the provisions are read together, s.45E precludes Regulation 5(3)(b). Section 45E provides that Regulations made under s. 45B or s. 45C may not include provision requiring a person to undergo medical treatment.

“Autonomy does not evaporate with loss of capacity”: Court of Protection

22 November 2021 by Rosalind English

This was one of those deeply troubling cases where there was disagreement amongst the family members over whether their incapacitated brother/father should continue with clinically assisted nutrition and hydration. One brother had applied for ANH to be discontinued, but because of the objections of the patient’s son, it was said that he would “continue to be cared for by nursing staff”.

As Hayden J observed, this was a “troubling non sequitur”:

Family dissent to a medical consensus should never stand in the way of an incapacitated patient’s best interests being properly identified. A difference of view between the doctors and a family member should not be permitted to subjugate this best interest investigation.

This particular hearing was ex post facto: in 11th June 2021, Hayden J delivered an extempore judgment in which he indicated why the continued provision of nutrition and hydration to GU, in the manner outlined above, was contrary to GU’s interests. However, having concluded that it was not in GU’s best interests to continue to receive CANH at the hearing on 11th June 2021, he considered it was necessary to afford RHND the opportunity of explaining what had happened. Amelia Walker of 1 Crown Office Row represented the hospital in these proceedings.