We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
On
Friday, the UK left the EU. In the midst of jubilation, despair, and relief,
questions remain about the human rights implications this decision may have, as
we continue to negotiate the precise terms of our exit. Clause 5 of the European
Union (Withdrawal) Act 2018 already confirmed that the EU Charter of
Fundamental Rights would not be included in ‘retained’ EU legislation after
Brexit. Now, the Conservatives may be able to move forward with their long-term
commitment to repeal the Human Rights Act 1998 and introduce a ‘British Bill of
Rights’. Boris Johnson’s manifesto promise was to ‘update’ the legislation, as
part of a programme of constitutional reform, looking at “the relationship between the government,
parliament and the courts.”
As the coronavirus continues to provoke anxiety,
China has come in for criticism for its handling of the epidemic, in the New York Times and on Human Rights Watch. After concealing new cases in Wuhan in early January, there has been
censorship of online posts about the epidemic, bans on speaking to the media
and journalists, and the government has been interrogating web users accused of
‘spreading rumours’ and ‘publishing and spreading untrue information
online’.
The BBC today published a report following a Freedom of Information request that the NHS “faces paying out £4.3 billion in legal fees to settle outstanding claims in clinical negligence. Read the report here. The vast inflation in damages awards in clinical negligence claims means that the cost to the health services is producing great concern in those who have to address the financial future of the NHS. This is particularly an issue with birth disasters where the life expectancy of the child, however badly damaged, is lengthy and therefore ongoing costs, notably care costs, stretch long into the future. In May 2019, former Court of Appeal judge Rupert Jackson proposed a series of solutions to this problem, including replacing the principle of full compensation with a system of tariffs . This may be along the lines of the current scheme operated by the Criminal Injury Compensation Authority . He also called for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’. You can read Sir Rupert Jackson’s full paper here:
In this episode I’ve brought together two members of 1 Crown Office Row who have spent their professional lives both claiming against and defending the NHS. James Badenoch QC, now retired, maintains that the existence of these claims is justified by the pressure to improve clinical practice.
David Hart QC provides us with the details of the very considerable figures paid out recently by the NHS in settlements and awards. The source of these figures and others can be found here:
So what are the solutions – or what, some might say, are the threats – to the principle of full compensation in the medical context? Do listen to this discussion between two experts in the field.
The news has been nothing
if not dramatic this week. US President Donald Trump arranged for the
assassination of Iranian General Qasem Soleimani by drone strike on Friday. At
Soleimani’s state funeral in Tehran, the streets were filled with crowds chanting
‘death to America!’, and a weeping Ayatollah Khamenei promised that a ‘harsh retaliation’
would come to the USA. The media is full of geopolitical speculation: some say
that this amounts to a ‘declaration of war’ by the USA on Iran, and will lead
to World War III, while others worry about the possibility of nuclear
escalation. The BBC has published this relatively deflationary overview of
the risks, as the situation stands.
British-Iranian
dual citizen Nazanin Zaghari-Ratcliffe, who was imprisoned in 2016 for allegedly
‘plotting to topple the Iranian regime’ and ‘spreading propaganda against Iran’,
remains in prison in the country. Her husband has called for an urgent meeting
with UK Prime Minister Boris Johnson. In light of Mr Johnson’s previous mishandling
of the situation as Foreign Secretary, and his refusal to condemn the killing,
saying on Sunday “we will not lament his death”, Richard Ratcliffe may well
consider that he is entitled to a meeting.
International
concern continues, too, over the 19-year-old UK citizen held in Ayia Napa in
Cyprus, who says that she was compelled to withdraw her allegations of gang
rape against a group of Israeli nationals under duress from Cyprus police. She
was convicted in 2019 for ‘wilfully indulging in public mischief’, and is now
pursuing an appeal process which could take up to three years. Dominic Raab
this week urged the Cypriot authorities to ‘do the right thing’ in deciding her
case.
Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. We were lucky enough to be guided around this fantastic exhibition by the curator, Rosalind Wright CB QC. Listen to Rosalind discuss the first 100 years of women in law with Rosalind English in the latest episode of Law Pod UK here.
The exhibition consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.
Visit the exhibition, and listen along, to see the women past, present and future who have changed the legal landscape at Middle Temple here.
With an election on
the horizon, a coalition of 29 women and human rights organisation has published
a manifesto for women and girls. Their stated goals are to “end violence
against women and girls”; “secure women’s equal representation in politics”; “promote
equality in the workplace and in the home”; “invest in public services”; and “lift
women and children out of poverty”. To
achieve these goals, they propose measures including a new ‘Violence Against
Women and Girls’ bill to lay before Parliament; funding for high-quality sex
and relationships education; improvements to the criminal justice system
regarding allegations of rape and sexual assault; equal pay; increased maternity
pay and maternity allowances; an end to pregnancy discrimination; and a strengthening
of the law on sexual harassment at work, creating a duty on employers to
prevent harassment from occurring. The manifesto is available here.
The backlash
against internet intermediaries and ‘surveillance capitalism’ continues this
week. Amnesty International have released a report entitled ‘Surveillance Giants’,
which analyses in detail the human rights threats posed by Facebook, Google,
and other technology corporations. The report is available here. Meanwhile,
in the courts, Singh LJ granted Ed Bridges permission to appeal the facial
recognition judicial review which he lost in September, noting that Mr Bridges’
appeal had a reasonable prospect of success.
In the latest Henry Brooke Lecture (12th November, hosted by BAILII and Freshfields Bruckhaus Deringer), Supreme Court Justice Lord Sales warned that the growing role of algorithms and artificial intelligence in decision making poses significant legal problems.
He cited as an example a recent case in Singapore. The judge had to decide on mistake in contract – except that the two contracting parties were both algorithms. In that instance the judge was able to identify the human agents behind the programmes, but that will soon not be the case.
R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment
“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)
The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.
The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.
The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.
On Wednesday last week I had the great pleasure of speaking to a fellow South African, which we post in this week’s episode of Law Pod UK. I promise there are no references to rugby in the entirety of the interview. How could we have predicted anything anyway?
Kate O’Regan is the Director of the Bonavero Institute of Human Rights at Oxford University. She is also a former judge of the South African Constitutional Court (1994 – 2009). One fellow judge has said that she is “one of the finest minds ever appointed as a judge in South Africa”.
Our discussion ranges over a multitude of topics, such as the difficulty of reconciling customary law practices with the rights of women under the Bill of Rights, and the problem of enforcing the rule of law in the townships and on public transport in a country where most people are dependent on the state owned Metrorail to get to their place of work.
Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.
Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.
This has been a turbulent week for Brexit.
Despite gaining approval for his adapted version of Theresa May’s deal, Boris
Johnson has been unable to secure approval for his Brexit timetable, with a
narrow consensus in Parliament that the deal requires longer scrutiny.
Meanwhile, EU leaders have granted permission for a further extension to
Article 50 until 31st January 2020, in response to the letter sent
by the Prime Minister to comply with the Benn Act. Leaving on October 31st
is no longer possible; Parliament is preparing for a December general election.
Law creates artificial relationships between non-related people and entities. It even gives person-hood to non-biological beings such as companies and partnerships (although not yet to non-human species). Genetics describe the underlying relationship of all biological beings. For centuries, law and genetic science developed in parallel with very little overlap. But as genetic discoveries ride the crest of the technological revolution, law finds itself on the back foot. Legal instruments, such as property law and the law of obligations between non-related individuals were crafted in feudal times with the aim of protecting property beyond the death of the owner. With genetic discoveries, we face a myriad of questions, from ownership of gene editing techniques to the dangers of discrimination based on genetic predisposition for disease.
In Episode 96 of Law Pod UK she discusses the case with Rosalind English. As promised, the statutory regime and relevant international law instruments are set out below.
Registration of Births and Deaths Regulations 1987
Gender Recognition Act 2004
Human Fertilisation and Embryology Acts 1990 and 2008
The European Convention on Human Rights Article 14 and Article 8
Sam Sykes and Conor Monighan provide the latest updates in human rights law
In the news
This week marked the 70th
anniversary of the Community Party’s rule in China. In Hong Kong, there were
violent protests and clashes with the police. The unrest which began in the
wake of the controversial extradition bill introduced 4 months ago has
developed into a wider movement for democracy, and there is no resolution in
sight. The situation has caused damage to buildings and transportation
infrastructure, and serious injuries: this week, an 18-year-old was shot in the
chest – police say that he is now recovering.
Carrie Lam, the Chief Executive of Hong
Kong, invoked the Emergency Powers Ordinance to try and create order. It is the
first time in 50 years that such regulations have been created. The regulations
ban people from wearing face masks, which protesters use to protect themselves
from tear gas, and also to preserve their anonymity. Although many have ignored
the rule, the Hong Kong authorities are now bringing the first charges under
the new law.
The Court of Appeal has ruled that a claimant can recover damages for loss of control of their data under section 13 of Data Protection Act 1998 without proving pecuniary loss or distress. The first instance judge, Warby J, had dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction in the USA, so preventing the claim getting under way.
The central question was whether the claimant, Mr Richard Lloyd, who is a champion of consumer protection, should be permitted to bring a representative action against Google LLC, the defendant, a corporation based in Delaware in the USA. Mr Lloyd made the claim on behalf of a class of more than 4 million Apple iPhone users. He alleged that Google secretly tracked some of their internet activity, for commercial purposes, between 9th August 2011 and 15th February 2012.
As we inch towards October, the £100m
government campaign to ‘Get Ready for Brexit’ has been launched. But to all intents
and purposes, the government are jumping the gun. By the time businesses have managed
to get themselves ready for Brexit (again), Boris Johnson will probably have
been required to request an extension to Article 50 under the anti-no deal bill
proposed by Hillary Benn, which today was given royal assent and passed into
law.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
Recent comments