By: Rosalind English

Independent schools can decide charitable status, says Tribunal

18 October 2011 by Rosalind English

Independent Schools Council and the Charity Commission for England and Wales (Defendant), National Council for Voluntary Organisations and the Education Review Group (Interveners); Attorney General v Charity Commissioner for England and Wales (Referrer) and the Independent Schools Council (Respondents) [2011] UKUT 421 (TCC) – read judgment

 It is not for the Charity Commission or the courts to impose on trustees of a school their own idea of what is for the “public benefit” so as to qualify for charitable status, the Upper Tribunal has ruled. In a detailed assessment of the law on charitable status both before and after the Charities Act, the Tribunal has indicated that the Act has not introduced any legal requirement to act in a way prescribed by the Charity Commission or anyone else.  Provided they run their charity to ensure that the poor are able to benefit in a way that is more than minimal or tokenistic, they should be free to make their own considered assessment of what is for the “public benefit” in the circumstances pertaining to their own institution.

The right to education played no role in these proceedings, which turned on the meaning of charitable status in the strict sense. But this case nevertheless has very real implications for the regulation of education in this country, mired as it is in the bitter controversy over state versus private education. This is still a weeping sore for which there is no salve. But the Tribunal’s firm steer towards autonomy at least puts paid to the efforts of the past government to micromanage schools behind the smokescreen of charity law.
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Home Office policy on forced marriage violates Article 8 family life

13 October 2011 by Rosalind English

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.

The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.  

The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue  was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country. 
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Self-incrimination and the fruit of the poisonous tree: the Cadder rule

7 October 2011 by Rosalind English

Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment

Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.

The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case,  Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that  the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody.
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The cat paradox

5 October 2011 by Rosalind English

Schrödinger would be rolling in his grave. The nation is abuzz with talk of a cat. A cat that is simultaneously there or not there. The speakers at yesterday’s seminar at Inner Temple hall on Strasbourg and the UK: Dialogue or Conflict, felt it incumbent to start each of their talks with a Cat Joke. But behind all this mirth about a supposedly “ridiculous” Article 8 decision, lie three serious points, some of which were touched on during the seminar though perhaps not with the detail they deserved.

First, it is not the cat that has toxified the debate about Article 8 and the vexed question of deportation. The right to respect under Article 8 is not only to family ties – however absurdly extended – but to private life itself.  Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, (Niemietz v Germany (1992)). Therefore if a court wants to prevent the what it perceives as the unjust deportation of the individual before it, it has a much wider constellation of interests to turn to than the family circle, whether or not that involves companion animals. Some might even take the view that attachment to such an animal may evince a more genuine emotional tie than many that have been advanced to claim the protection of Article 8.
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Benefits tourism – an EU/UK dust-up

3 October 2011 by Rosalind English

A niggle has broken into a very public row between the British government and the European Commission which may yet become a bare-knuckle fight – not over the Eurozone crisis or bailouts or anything in the headlines, but over the availability or not of certain classes of benefits to EU claimants who do not satisfy this country’s “right to reside” test.

British social welfare arrangments provide for a class of non-means tested benefits such as Child Benefit and Income-based Employment Allowance that are only available to people who have resided legally in the UK for five years.  The European Commission has declared this fencing-off to be in breach of EU law since it indirectly discriminates non-UK nationals coming from other EU Member States.  EU rules on the social security coordination (EC Regulation EC 883/2004) allow the UK to grant social benefits to those persons who habitually reside in the UK; this EU test is satisfied by those who have been resident in the UK for two years or less. It is a common law test – a question of fact on the balance of probabilities, to be determined by looking at all the circumstances in each case. But those who pass this latter qualification can only claim means-tested benefits.

Confusing? Yes, and it gets worse.
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No right to die without a “Living will”

30 September 2011 by Rosalind English

We posted earlier on the Court of Protection’s refusal to declare that doctors could lawfully discontinue and withhold all life-sustaining treatment from a patient in a minimally conscious state (MCS) – “just above” a vegetative state (VS), which itself is slightly higher than a coma – read judgment.

The message underlying this ruling  is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will. The Mental Capacity Act is remorseless, and courts will no longer come to the aid of those of us optimistic enough to think “it will never happen”.

We do not tend to think specifically about ending up in state of total dependency on medical support and therefore there is very little  likelihood of any significant section of the population making a formal advance decision in accordance with the Act. On the other hand, how many of us have said, as patient M said in this case, that if such a situation were to arise, we would want to “go quickly”? [para 230]

Such generalities however are to no effect. Despite the universal human instinct to live in denial of contingent disasters,  the court refused to give due weight to M’s previously expressed wish not to live a life dependent on others, because those these statements were not “specifically directed” at the consequences of withdrawing artificial nutrition and hydration (ANH) when conscious. Baker J could not consider those statements as a clear indication some eight years on from the onset of her illness, of what M would now want to happen.

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Court refuses family’s “right to die”

29 September 2011 by Rosalind English

M and others v NHS Primary Healthcare Trust – read judgment

For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”.
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Strict liability for offence of under-age sex does not offend presumption of innocence

28 September 2011 by Rosalind English

C v United Kingdom Application no. 37334/08 – read judgment

The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.

This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy.  Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence;  even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment.
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The suits in Strasbourg – Yukos Oil, tax evasion and human rights

27 September 2011 by Rosalind English

Oao  Neftyanay Kopaniya Yukos v Russia (Application no. 14902/04) – read judgment 

The collapse of the Russian oil giant Yukos following enforcement proceedings for multi-billion tax evasion has not prevented the ghost of the now-defunct company appearing in Strasbourg as a “victim” of the Convention.  After majority shareholder Mikhail Khodorkovsky  was prosecuted and imprisoned for fraud, the assets of Yukos were seized and the company was declared insolvent in 2006, and liquidated a  year later.  Nevertheless, the Strasbourg Court accepted its application because the issues raised by the case “transcended the person and the interests” of the applicant company. Striking out such claims, said the Court,

would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality…

The case raises interesting questions with regard to the policing and punishment of tax evasion, a matter which Strasbourg generally prefers to leave to national authorities. Whilst the wide margin of appreciation generally granted to a national governments cannot be boundless, there glimmers behind this ruling a reflection of  troubled water between the Council of Europe and its largest constituent. By admitting and upholding some of the complaints, Strasbourg signals its readiness to castigate failures in due process. But the rejection of the more fundamental charge of political motivation, though not exactly an olive branch, is proffered at least as a sign of non-aggression.
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Application of EU Rights Charter – Advocate General’s Opinion

26 September 2011 by Rosalind English

Updated |NS v Secretary of State for the Home Department (Principles of Community law) [2011] EUECJ C-493/10 (22 September 2011) – read opinion

The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers. 

Where a third-country national has applied for asylum in a Member State which is not primarily responsible for examining that application under the Regulation, it provides for mechanisms for the transfer of the asylum seeker to the Member State which is primarily responsible.
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Rape conviction carries little weight against right to family life, rules Strasbourg

21 September 2011 by Rosalind English

 A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment

The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria. 

The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004.  The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
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Proposed South African secrecy law may end up in the Constitutional Court

16 September 2011 by Rosalind English

The South African ANC led government is proposing to introduce a Protection of Information Bill,  a highly controversial piece of proposed legislation which aims to regulate the classification, protection and dissemination of state information, weighing state interests up against transparency and freedom of expression.

Critics have attacked the Bill because it defines the concept of “national interest”  very broadly, granting wide powers to classify documents as secret in the name of national interest. And the absence of a public-interest defence is seen as problematic because it would have functioned as an important means for information of serious concern to citizens to be disclosed, regardless of the fact that the information was classified. The penalties for disclosure of protected information are harsh. Anyone  who unlawfully discloses classified information could be guilty of an offence and liable on conviction to imprisonment for a maximum of five years. There is limited protection under the Protected Disclosures Act 2000,  but this statute only protects employees from being subjected to occupational censure for having made a protected disclosure. Journalists and other members of the public are not covered by this Act and therefore cannot claim its protection.
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Immigration Rules should not be bent to favour right to family life

13 September 2011 by Rosalind English

R(on the application of Sayed) v Secretary of State for the Home Department; R(on the application of Patel) v Secretary of State for the Home Department [2011] EWCA Civ 1059 – read judgment

The Court of Appeal has confirmed that Article 8 of the Convention need not necessarily be considered when deciding whether to grant an applicant indefinite leave to remain. The Immigration Rules the are the sole test of eligibility, and Article 8 cannot be used to modify them.  They should therefore be read according to their natural and ordinary meaning.

In these conjoined appeals the appellants challenged decisions upholding the secretary of state’s refusal to grant them indefinite leave to remain in the United Kingdom.  The first appellant, S, had sought indefinite leave to remain in the UK on the basis of long residence. The secretary of state refused his application on the basis that he had failed to show that he had completed 10 years continuous lawful residence in the UK because there had been two gaps in his residency. He was, however, granted leave to remain in the UK for a period of three years to complete a course of study. The second appellant, P, had sought indefinite leave to remain in the UK as the parent of a person, his son, present and settled in the UK under the Immigration Rules para.319. P’s application was refused on the basis that he did not meet the dependency requirements of para.317 of the Rules. In both appeals an issue arose as to whether the Rules should be construed so as to conform with Article 8.
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Human rights – Strasbourg or Luxembourg?

9 September 2011 by Rosalind English

When a Convention right arises in circumstances which also engage EU law, which court is the final arbiter of their meaning and application?

This is not as arcane a question as it appears, since in the UK many cases engage points of EU law, so Convention rights, which are part of the “general principles” of Community law, get in under the wire via the   European Communities Act 1972.  And  in July the Council of Europe published the draft agreement for accession of the European Union as a signatory to the European Convention, which either adds another string to the ECHR bow, or a further layer of constitutional obscurity of interest only to international jurists, or both: – time will tell.
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Baha Mousa Public Inquiry finds “Corporate failure by MoD”

8 September 2011 by Rosalind English

The 1,400 page final report on the inquiry into the death of Baha Mousa  has been published today after three years of hearings. The chairman of the inquiry, retired Court of Appeal judge Sir William Gage, has condemned members of the 1st Battalion The Queen’s Lancashire Regiment for their “lack of moral courage” to report abuse  and the use of banned interrogation after Mousa died of 93 injuries in British army custody in Basra in 2003.

Mousa was arrested with nine other Iraqi men after 1QLR soldiers found weapons, fake ID cards and military clothing at the hotel where he was working as a receptionist. 
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