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In Hong Kong, protests have continued against
a proposed law allowing extradition of Hong Kong residents to China. On Monday
1 July, campaigners delivered a letter to the UK government, petitioning the
government to change the status of the British National (Overseas) Passport to include
an automatic right to live and work in the UK. The government has yet to
formally respond to the petition. However, Foreign Secretary Jeremy Hunt has
stated that he is ‘keeping his options open’, and threatened ‘serious
consequences’ if China fails to honour the Joint Declaration treaty of 1984 (which
stipulated the terms of the 1997 handover).
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)).
In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.
Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.
The Equality and
Human Rights Commission has published a report into legal aid and access to
justice for discrimination cases. Its recommendations include reforming the
telephone service to make reasonable adjustments for disabled users, adjusting
the threshold and financial evidence requirements for financial eligibility, and
addressing the asymmetry in terms of claims for legal representation between
discrimination and other cases. The full report is available here.
The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.
In the courts
Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.
MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.
On the UKHRB
Amelia Walker discusses the investigation into abuse at Brook House.
On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.
Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.
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:
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.
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.
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.
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.
This week, the Home Secretary Sajid Javid launched the Windrush Compensation Scheme. It is estimated that the total compensation will be somewhere in the region of £200m, but critics note that individual payments may be ‘insultingly low’, as with a cap of £1,000 for those who left under a ‘voluntary’ return scheme. The government has published an impact assessment for the scheme.
The media (and certain MPs) have reacted with outrage to a High Court judge’s statement that a man had a ‘fundamental human right’ to have sex with his wife. The remark was made by Hayden J in a Court of Protection case concerning a marriage to a woman with severe learning disabilities. One commentator has suggested that the remark has been interpreted uncharitably, and was simply meant to indicate a cautious approach to governmental interference with private life in such complex and difficult situations, in line with Article 8 of the ECHR.
The Foreign Office has appointed human rights lawyer Amal Clooney as its ‘Special Envoy for Media Freedom’. Meanwhile, human rights criticisms of the UK government itself have come from various angles:
The Northern Ireland Human Rights Commissioner has called on Theresa May to clarify the post-Brexit rights of Northern Ireland-born Irish citizens.
The Scottish Commissioner for Young People and Children has called for UN intervention to address Scottish breaches of children’s human rights, such as by strip-searching and illegal restraint. The Commissioner urges the implementation of the UN Convention on the Rights of the Child into Scots law.
A report by the Commons Foreign Affairs Committee, titled ‘China and the Rules-Based International System’, worries that UK trade policy with China is prioritising economic interests over other vital concerns such as human rights violations.
A report by Citizens UK indicates that the Home Office is making a substantial profit (~£25m/year) from fees to process citizenship applications by the children of migrants who have grown up in the UK.
As Shamima Begum’s lawyers prepare her appeal against the government’s decision on her citizenship, international criticism of the UK’s reluctance to repatriate children of ISIS parents is growing, with repatriations by France and Germany, and pressure from the International Committee of the Red Cross.
Outside the UK:
Brunei’s anti-LGBT law has come into force, despite overwhelming international criticism.
Debate continues about Mark Zuckerberg’s call for a US state regulator of Facebook.
… 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.
With a third rejection of Theresa May’s deal on Friday, Brexit remains a dismal subject. Dismal not only for its economic but for its human rights implications: this week, the Parliamentary Joint Committee on Human Rights published its report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The report (available here) raises concerns about legal limbo for the 3m EU citizens remaining in the UK post-Brexit. In particular, it makes the following recommendations:
The bill in its present form is a ‘blank cheque’ affording ministers excessive discretion to remove rights. The JCHR recommends an amendment requiring the Secretary of State to ensure that any regulations contain measures to protect the acquired rights of persons who benefited from EU free movement of persons prior to Brexit.
The EU Settlement Scheme is unclear on the implications of failure to register the time limit. The JCHR recommends provisions for registration outside the time limit, and/or otherwise to limit the implications of the time limit.
The EU Settlement Scheme in its present form would issue only electronic proof of a successful application. The JCHR recommends the issuing of physical proof, echoing the EU Justice Committee in a comparison to the Windrush scandal on this point.
Vulnerable people may have difficulty in accessing the EU Settlement Scheme. The JCHR recommends that steps be taken to ensure that vulnerable people are aware of their rights, and have assistance in accessing the scheme.
Finally, the JCHR recommends clarification of the Common Travel Area for Irish citizens.
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