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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.
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 Spotify, iTunes,Audioboom, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
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.
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”.
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.
Law Pod UK is available on Audioboom, iTunes, Spotify, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
… 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.
We have had the rare opportunity to interview a high court judge in South Africa. Mr Justice Steenkamp is a member of the specialist branch of the high court bench which reviews employment decisions from the lower courts on their way to the appeal courts and ultimately the Constitutional Court. In a country where people are plentiful and employment is scarce, strike action, even protests protected under the Constitution, is fraught with difficulty, particularly where violence abounds and the police force is inactive or overwhelmed. Rosalind English speaks to Labour Court Judge Steenkamp in his chambers at the Labour Court in downtown Cape Town. Citations for the cases referred to in the interview are set out below, along with the relevant legislation.
Today (21 March) the Royal College of Physicians (RCP) has dropped its opposition to assisted dying and moved to neutrality. The RCP has opposed assisted dying since 2006 but has now brought its position in line with the range of views held by its members, and with the 82% of the public who want greater choice at the end of life. Today’s result is a great victory for patients and for the campaign group Dignity in Dying. Their full press release can be found on their website and a breakdown of the results is available on the RCP website.
On 20 March Dignity in Dying released a report exposing the fact that those behind the legal challenge to the RCP (detailed below) have a long history of campaigning for pro-life causes and connections to American pro-life lobbyists, the Alliance Defending Freedom (ADF).
Frances Gibb recently retired from nearly forty years spent as law correspondent, editor and columnist at The Times. In Episode 72 she tells Rosalind English about some of the more bracing encounters with government lawyers and judges in the past, and reflects on the many changes that have taken place in the media and legal institutions since she took over from Marcel Berlins in the 1980s.
Law Pod UK is available on Audioboom, iTunes, Spotify, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
The Court of Appeal has turned down an appeal against an application seeking judicial review of May’s triggering of Article 50 under the power granted to her by the European Union (Notification of Withdrawal) Act 2017. The applicants sought a declaration that this was unlawful because it was
based upon the result of a referendum that was itself unlawful as a result of corrupt and illegal practices, notably offences of overspending committed by those involved in the campaign to leave the EU
On 10 December 2018, Ouseley J refused permission to proceed with the judicial review on the basis of both delay and want of merit, and ordered the Applicants to pay the Respondent’s costs. This was a hearing for permission to appeal against that order. Permission was refused.
In Episode 71 author and barrister Jacob Turner talks to Rosalind English about a world in which algorithms handle all the transactions. His book Robot Rules explains why AI is a unique legal phenomenon, and how we might address the legal and ethical problems it could cause. He argues that AI is unlike any other previous technology, capable of legal agency and holding legal personality. His book goes deep into the questions of liability for the actions and decisions of advanced algorithmic intelligence. As one review comments, Robot Rules incorporates “clear explanations of complex topics”, and will appeal “to a multi-disciplinary audience, from those with an interest in law, politics and philosophy, to computer programming, engineering and neuroscience.”
Law Pod UK is available on Audioboom, iTunes, Spotify, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
The patient in these proceedings was a woman in her thirties (“B”). She suffers a learning disability and epilepsy and has considerable social care needs. She currently lives at home where she spends much of her time watching television. She struggles to manage her personal care and hygiene, and, in the judge’s words, she is “grossly overweight.”
She is prone to confrontational behaviour when challenged, and can be physically aggressive. She is assessed as requiring support to maintain her safety when communicating with others; when she receives information which she does not want to hear, she often becomes dismissive, verbally aggressive and refuses to engage.
This hearing concerned her capacity to litigate in these proceedings, to manage her property, to decide where she resides and her package of care, and to decide with whom she has contact. The main focus of the judgment was on the question that arose in the “A” case , as to the capacity of the patient to use the internet and communicate by social media. Closely related to this was the issue of her capacity to consent to sexual relations. Continue reading →
In this case Cobb J was asked to make declarations under the Mental Capacity Act 2005 regarding a learning disabled man’s capacity to use the internet and social media. (NB on 21 February judgment was also handed down in a similar case on which we will post shortly: B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3.
The rapid development of the internet and proliferation of social media networks over recent years have fundamentally reshaped the way we engage with each other. We spend more time on our digital electronic devices than we do interacting with other humans and naturally this has brought huge benefits in terms of entertainment, communication and gathering information. The social media ‘apps’ available for instant messaging and networking are mostly easy and free to use, amongst them chiefly Facebook, WhatsApp, Snapchat, Facetime, Skype, Instagram, and Twitter. For people with disabilities the internet and associated social media networks are particularly important:
On 20 March Dignity in Dying released a report exposing the fact that those behind the legal challenge to the RCP (detailed below) have a long history of campaigning for pro-life causes and connections to American pro-life lobbyists, the Alliance Defending Freedom (ADF).
In January we published episode 63 of Law Pod UK featuring Sarah Wootton, Chief Executive of Dignity in Dying. DID campaigns for a change in the law to allow doctors to prescribe lethal drugs for terminally ill people to hasten their own death in specific situations. Sarah referred in that interview to a poll that was about to be conducted of the members of the Royal College of Physicians, who have hitherto opposed assisted dying. The members are being asked whether they individually support a legal change to permit assisted dying, and what they think the RCP’s position should be. The RCP has said that it will move to a neutral position unless at least 60% of votes in a poll being sent out in the first week of February are either in favour of or opposed to a change in the law. The results will be announced in March but the poll has had a bumpy ride, including a threat of judicial review by one of its members for conducting the exercise as a “sham poll with a rigged outcome.” The Christian charity Duty of Care has called for signatures from doctors and medical students to a petition objecting to the poll.
While that has been going on, DID has supported the family of a man suffering from motor neurone disease. On 7 February Geoff Whaley travelled to Dignitas in Switzerland to end his life.
Before he died, Mr Whaley wrote an open letter all MPs to impress upon them the need for a change in the law after his wife was reported to the police, in an anonymous phone call, as a person potentially assisting someone to end their life. The Whaley’s MP Cheryl Gillan raised the family’s story in the Commons during Business of the House.
Geoff [and his wife] had to suffer the added mental anguish of facing a criminal investigation at a time when the family, and most of all Geoff, wanted to prepare his goodbyes and fulfil his last wish in peace. May I ask the Leader of the House if we can have a debate in Government time so that we can re-examine this area of law, particularly in the light of this amazing man’s efforts to give terminally ill people a choice over the way they leave this world, and to afford protection to their loved ones?
Ninan v Findlay and others [2019] EWHC 297 (Ch), 21 February 2019
The claimant, Mrs Ninian, is the sole beneficiary of the residue of the estate of her late husband Mr Ninian under his will. Mr Ninian, who suffered from a progressive incurable disease, died on 16 November 2017 with the assistance of Dignitas in Switzerland. Mrs Ninian was with him throughout the trip to Switzerland, his assessment by representatives of Dignitas and the occasion of his suicide.
Shortly before the trip to Dignitas, Mrs Ninian applied for relief against forfeiture under section 2 of the Forfeiture Act 1982 on the basis that steps taken by her may have amounted to encouraging or assisting her husband to commit suicide which brought in play the forfeiture rule.
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