Media By: Rosalind English


The line between legitimate protest and anti-social behaviour

30 August 2019 by

Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.

The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?

There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council [2019] EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.

The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.


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Airspace in a crowded sky

27 August 2019 by

Lasham Gliding Society Ltd, R (on the application of) v. the Civil Aviation Authority and TAG Farnborough Airport Limited read judgment

The Claimant, the Lasham Gliding Society, challenged a decision by the Civil Aviation Authority, the statutory regulator of UK airspace, to permit the introduction of air traffic controls in airspace around Farnborough Airport, which is presently largely uncontrolled. Lasham Gliding Society (“LGS”) is one of the largest gliding clubs in the world. Its concern was that one of the effects of the CAA’s decision would be to increase the risk of a mid-air collision between its gliders and those aircraft which divert away from any newly controlled airspace around Farnborough Airport into the adjacent uncontrolled zone over Lasham where its gliders fly.

To put it in more detail, LGS argued that as a result of the CAA’s decision, light powered aircraft would be unable to enter their proposed controlled airspace which would compress them into the limited channel of non-controlled airspace near Lasham, thus creating “bottlenecks” that would increase the risk of mid-air collisions (referred to in the judgment as the “Lasham bottleneck” or “Lasham Gap”

LGS challenged the CAA’s decision on the basis that the CAA had misconstrued the Transport Act 2000; was in breach of its duties under the Act and had acted irrationally. The relevant provision is Section 70 which provides, broadly, that “the CAA must exercise its air navigation functions so as to maintain a high standard of safety in the provision of air traffic services, and that duty is to have priority over [the CAA’s obligation to secure the most efficient and expeditious flow of aircraft, to satisfy the requirements of owners of all classes of aircraft and to take account of environmental objectives, national security interests, etc.].”


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Who’s afraid of the big bad wolf?

22 August 2019 by

The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.

Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.

Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?


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Rejected consumer goods – are they “waste”?

4 August 2019 by

As invidual consumers we are constantly exhorted to separate the goods and substances we want to get rid of into “rubbish” destined for landfill or items for recycling. Clearly we have to pay attention to this to avoid material going into landfill that could be recycled or turned into energy, but not only that; we need to be aware of the cost of goods being manufactured that never see the light of day at all, because by virtue of being mixed by less pristine goods, they count as waste, with all the consequences that entails.

In a recent ruling the CJEU considered the question of retail goods that have been returned by consumers or become redundant in the seller’s product range: Openbaar Ministerie v Tronex BV C-624/17.

The case should raise alarm bells. When we return an item against a refund of the purchase price we do not think we are discarding it. The CJEU ruling turned on the application of Article 3(1) of the Waste Directive 2008/98/EC, which provides that

‘“waste” means any substance or object which the holder discards or intends or is required to discard’.

Individual consumers are clearly not liable under waste legislation for returning goods. But the concept of waste forms the basis of a criminal penalty for possession in EU member states.  So once those items reach the retailer the situation changes, because it may or may not become “waste” in their hands.


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Orthodox housing association can cater only to strictly orthodox

30 June 2019 by

Z & A v another, R (on the application of) v London Borough of Hackney and Agudas Israel Housing Association Ltd [2019] EWCA Civ 1099

The Agudas Israel Housing Association (“AIHA”) owns and allocates social housing exclusively to members of the Orthodox Jewish community.  In these proceedings it was argued that Z, a single mother with four children, had suffered unlawful discrimination when Hackney council had failed to put her name forward for suitable housing. This was because of AIHA’s practice of only letting its properties to members of the Orthodox Jewish community. Although the nominal respondent in these proceedings was Hackney LBC this was only because in practice Hackney nominates properties owned by the AIHA. Primarily the challenge was to AIHA’s allocation policy.

It was common ground that AIHA’s arrangements constituted direct discrimination on grounds of religion. The question was whether this discrimination was lawful. The Divisional court held that it was, being a proportionate means of compensating a disadvantaged community (at [2019] EWHC 139 (Admin)).


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M4 Newport relief road scrapped: environment v economics

24 June 2019 by

Listen to Alaisdair Henderson on Episode 85 of Law Pod UK

Plans to build a fourteen mile, six lane motorway through the Gwent Levels south of Newport to relieve congestion on the M4 have been scrapped by the Welsh government. The announcement by first minister Mark Drakeford was welcomed by environmentalists, local residents and small businesses who opposed the scheme at last year’s public inquiry. Alasdair Henderson, Dominic Ruck Keene and Hannah Noyce from 1 Crown Office Row with other barristers from Guildhall Chambers (Brendon Moorhouse) and Garden Court (Irena Sabic and Grace Brown) represented Gwent Wildlife Trust and an umbrella of other environmental objectors in the proceedings which lasted from February 2017 to September 2018. All these barristers acted for free. Environmental NGOs such as the Environmental Law Foundation, should be particularly pleased by Drakeford’s acknowledgement the campaigners’ efforts:


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The Reith Lectures: Human Rights v Democracy

4 June 2019 by

Or “Human Rights and Wrongs”, as Jonathan Sumption’s third lecture is called, in his series on Law’s Expanding Empire, delivered in Edinburgh and broadcast on Radio 4 and BBC World Service.

Human rights are where law and politics meet. It can be an unfriendly meeting…”

Following these strong words, Lord Sumption briskly debunks the ideas of “natural” or “inalienable” human rights, in favour since Blackstone’s time. In principle, there is nothing so fundamental about certain rights that they cannot be overturned by democratic election. The idea of these inalienable human rights was perfectly straightforward in a world where rights were part of God’s law, or in communist societies where these rights were ordained by the ruling party. But in a secular democracy, Sumption asks, what is it that makes rights legitimate? Of course there are rights without which a community cannot function, like the right to be free of force, and the right to participate in fair and regular elections. Any further rights should be conferred by collective choice, and not because because they are thought to be inherent in our humanity, or derived from some higher law. Instead of the mystics and the totalitarians, he invites us instead to consider the 18th century enlightenment philosopher David Hume.

He rejected the whole concept of natural law … You cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.

Rights [continues Sumption] do not exist in a vacuum, They are the creation of law, which is a product of social organisation, and which is therefore necessarily a product of political choice.


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Enforceable ethics in the age of gene enhancement

4 June 2019 by

The entanglement of law and ethics is always perilous when it involves the threat of prohibition. When Shenzhen scientists announced two years ago that they had edited the genes of twin human babies whilst still in vitro, voices of disapproval reverberated around the globe. Whilst it seems that gene modification of potential human life fills us with fear and loathing nothing has stood in the way of the race to refine this technology. Efforts to predict and restrict genetic engineering seem quaint and outmoded, from the UNESCO 1997 Declaration on the Human Genome and Human Rights, to the Council of Europe’s Convention in the same year to restrict the modification of the genome to therapeutic purposes only. These agreements, as well as the 2015 call by UNESCO for a moratorium on germline modification, are well past their sell by dates.


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Withdrawal of life support: minimally conscious patients

30 May 2019 by

A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD [2019] EWCOP 18

The lesson to be learned from this case is to be careful of the hands into which you may fall, should you become incapacitated and end up in a vegetative or minimally conscious state.

The patient in this case, P, was traumatised by a drug overdose in 2014. Since then she has been tracheotomy dependent and tube-fed. She is vulnerable to fitting, chest infections and other forms of ill-health. She was initially diagnosed as being in a vegetative state which was subsequently revised to that of a minimally conscious state.

At the time of the application she was in a unit specialising in rehabilitation for those suffering from neurological impairment. Staff at the Unit hold strong pro-life views. The CCG, the applicant in this case, was funding that treatment. There was no disagreement between the Official Solicitor, the CCG and the family as to the correct course of action; that Clinically Assisted Nutrition and Hydration (CANH) should be withdrawn. However, given the contrary views expressed by the staff who care for P, the CCG decided to bring this matter before the court. MacDonald J concluded that, whilst the application proceeded unopposed by all parties to it, it was appropriate to deliver a fully reasoned judgment.


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Now, Alice through the Looking Glass

22 May 2019 by

Biologists are fond of using the analogy of Alice and the Red Queen to explain why, in the real world of parasites and defence immune systems, you have to run to keep still. In this post I will be looking at a similar problem in the legal world, where the rule of law paradigm is subject to competition between parliament and the judiciary. You have to keep running to keep abreast of whichever one has the flame. Who will prevail as anointed guardian of the rule of law? Does it matter, and is the race even real?

R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22.

In his analysis of the half century of argumentation on this point, Jonathan Metzer suggests that the question of who is actually in charge may be redolent of Alice in Wonderland. Anisminic replaced one confusion with another by merging errors of law and errors of jurisdiction. The effect of this ruling was, in Lord Sumption’s words,

to create what is nominally a power of review, but is in substance a right of appeal on points of law going to the merits.

For the facts and issues in this appeal, see Jonathan’s post Anisminic 2.0. David Hart QC’s post considers the Appeal Court ruling (which went the other way) here. In the paragraphs to follow I explore the dissent.


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Law Pod UK – the new copyright directive

13 May 2019 by

Law Pod UK logo

In Episode 78 we explore the implications of the EU Directive on Copyright in the Digital Single Market for the music industry. Intellectual Property lawyer Andrew Lewis considers the criticism levelled at the new proposals for closing the “value gap” created by platforms such as You Tube. Will the Directive bring about the earth shattering change as its detractors claim, or will it simply level the playing field between You Tube and subscription only streaming services?

Law Pod UK is available on SpotifyiTunes,AudioboomPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

Sight impaired voters and the secret of the ballot box

12 May 2019 by

How can someone who suffers from severely limited sight avail herself of the process for making a mark on a paper ballot under the Representation of the People Act 1983?

In R (on the application of Rachel Andrews v Minister for the Cabinet Office [2019] EWHC 1126 (Admin) Swift J was presented with this very question, as the claimant, a sufferer from myopic macular degeneration who has been registered blind since 2000, was unable to vote without assistance, “either from the Presiding Officer at a Polling Station or a companion”

The main basis for her claim was that the regulations under the 1983 RPA have failed to achieve the purpose of prescribing the use of a device that enables blind and partially sighted voters to vote without assistance.

In the judgment, Swift J refers as short hand to “blind voters”, rather than “blind and partially sighted voters”.

Under challenge were the provisions for voting for blind voters. Rule 37 sets out the procedure thus:

The voter, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the number and other unique identifying mark, and put the ballot paper so folded up into the ballot box in the presiding officer’s presence.

The provision for blind voters is limited to “at least one large version of the ballot paper” to be displayed at the polling station and

A device of such description which may be prescribed for enabling voters who are blind or partially-sighted to vote without the need for assistance from the presiding officer or any companion.

The device prescribed is a “tactile voting device” made from a sheet of plastic with a number of tabs, printed in Braille, corresponding to the number of candidates standing in the constituency. However there are a number of shortcomings with the TVD, including the fact that a blind person has no way of knowing the name of the candidate or the name of the party the candidate represents. The TVD only permits a blind person to vote without assistance if she or he has memorised the order of candidates on the ballot paper.

The claimant contended that this was unsatisfactory. Without the assistance of the poll officer or a companion there was no way that she could mark her ballot paper against the name of the candidate she wished to vote for. It was not realistic, she contended, to expect her to memorise not only all the names of the candidates but the order in which they appeared on the ballot paper. In the 2009 by-election in her constituency for example there were twelve candidates. The position becomes even more complicated if more than one election takes place on the same day.>

This effectively denied her the opportunity to cast her ballot in secret.

The question before the court was the precise meaning of the words in Rule 29(3A) making provision for blind voters:

…a device … for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion …

The judge concluded that a device that enabled a blind voter to vote without the need for the assistance that could be provided by a Presiding Officer or companion would need to do more than the present TVD.

It would, at the least, have to comprise a fuller TVD of the sort suggested by the Claimant, which in addition to the numbered tabs has the name of each candidate and/or the party she stands for, either in raised lettering, or Braille, or both.

This was because of what it means to vote, which extends beyond the dictionary definition of the word. The respondent claimed that it meant the mere marking of one of the areas indicated on the ballot paper. But, in Swift J’s view, there was more to it, as indicated by the rules on spoilt ballot papers, which reflect

the clear (and to my mind obvious) connection between marking the ballot paper and choice. Voting under the rules means marking a ballot paper so as to indicate an intention to vote for one or other candidate….A device that does no more than enable blind voters to identify where on a ballot paper the cross can be marked, without being able to distinguish one candidate from another, does not in any realistic sense enable that person to vote. Enabling a blind voter to mark ballot papers without being able to know which candidate she is voting for, is a parody of the electoral process established under the Rules. [paras 21 – 22]

His conclusion was that the present TVD did not represent the fullest possible use of the power at Rule 29(3A). In order to enable a blind person to vote, a device must allow the blind voter to mark the ballot paper against the name of her candidate of choice. Declaratory relief was ordered to that effect.

The Status of Foreign Law in Chinese Courts

8 May 2019 by

Usually when a court in the UK is asked to consider a question of foreign law, the contents of that law are treated as a question of fact that must be pleaded and proved by the parties, usually by expert opinion. This is the case too in the United States, and in Hong Kong.

If the parties do not adduce factual evidence on the contents of the foreign law concerned, the English court will assume that the foreign law is exactly the same as the relevant English law – this is the common law notion of “presumption of identity”. This means, in effect, that where there is no foreign precedent on the point in question, or where the authorities are in conflict, the court must decide the matter for itself.

In an interesting briefing published by Links Law Office as part of their Dispute Resolution Bulletin, authors Patrick Zheng and Charles Qin explain that in China it is not clear whether foreign law constitutes a question of law or fact, as the Chinese court retains the power to investigate and clarify the applicable foreign law of its own motion.

Chinese law provides a number of ways for the parties and the court to “investigate and clarify” the applicable foreign law, including submissions by the parties, or the relevant foreign embassy, Chinese or foreign legal experts or “any other reasonable way to find foreign law, for example through the internet”.

What is an “EU Citizen”?

24 April 2019 by

In the 1980s the European Commission embarked upon an ambitious scheme to cultivate, on the basis of free movement, the idea of EU citizenship in higher education. Universities have long been seen as places of national citizenship formation. The Erasmus scheme was designed to further the notion of citizenship untethered to the nation state by funding and therefore encouraging student mobility.

Has it worked? Dr Cherry James, coordinator of the Erasmus Programme at London South Bank University, discusses her views with Rosalind English in Episode 76 of Law Pod UK. Cherry has recently published her findings in Citizenship, Nation-building and Identity in the EU: The Contribution of Erasmus Student Mobility  . This book sits at the intersection of three main interrelated themes: EU citizenship, the current state of the university in Europe, and student mobility.

Law Pod UK is available on AudioboomiTunesSpotifyPodbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.  

What will happen to Justice

2 April 2019 by

… the horse? In September last year a County Court judge in Washington, Oregon, threw out a case for lack of standing. The claim (Justice vs Gwendolyn Vercher Case 18CV17601) was filed in the name of an eight year old quarter horse whose abuse at the hands of his owner had led to a conviction and fine for animal neglect.

In March 2017 the horse — then known as Shadow —was found emaciated and with a prolapsed penis that was swollen “red raw” and “oozing serum” as a result of frostbite. He was 300lb (136kg) underweight and also suffering from lice and rain scald having been left without adequate food or shelter throughout the winter. Although his owner agreed to pay the horse’s veterinary expenses up to the date of conviction, the equine charity maintain that the injuries he has suffered will require “special and expensive medical care for the rest of his life” and are a barrier to finding the horse a new home.


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