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The claimant (FoE) applied for judicial review of the decision by the Secretary of State to provide export finance and support in relation to a liquified natural gas project in Mozambique.
The mission of the International Trade/Export Credits Guarantee Department (UKEF) is to ensure that no viable UK export fails for lack of finance or insurance from the private sector, while operating at no net cost to the taxpayer. It is afforded a significant margin of appreciation when considering factors when deciding whether to provide this finance and support. Indeed it has been the first UK Government Department to assess climate change impacts in the context of a long-term foreign project with many public interest considerations.
Background facts
The project comprised the development of offshore deepwater gas production facilities connected to an onshore gas receiving and liquefaction facility. It was to be operated by the first interested party (Total Mozambique) and funded via the second interested party (a financing company). UKEF acknowledged that climate change impacts and the Paris Climate Change Agreement were factors that ought to be taken into account alongside other factors in making its decision in relation to the project. A report was prepared summarising the climate change matters considered by UKEF, including that the potential Scope 3 greenhouse gas emissions from the use of the project’s exported liquid natural gas would be very high, and that it was unlikely that Mozambique would attract significant international investment into the renewables sector without first being in receipt of financial resources from investment into sectors such as natural gas.
Episode 161: Just days before Russia resigned from the Council of Europe, the Centre of European Law at King’s College London held a rapid reaction seminar considering what role can EU law play in the current conflict in Ukraine. The distinguished panel, chaired by King’s College Reader in Law Oana Stefan, included Professor Takis Tridimas, Professor of European Law at KCL, Roman Petrov, Head of the International and European Law Department at the National University of Kyiv-Mohyla, and others. We are very grateful to King’s College for allowing Law Pod UK to summarise the main points made by the experts and raise the question: does EU law present any potential way of this quagmire?
The Dickson Poon School of Law, King’s College London, is recognised as one of the best law schools in the world. It recently launched its MSc Law and Professional Practice.
Barely two weeks after Russian tanks rolled into Ukraine, the Economic Crime Bill was rushed through the House of Commons. This one of the measures this country has taken to cleanse itself of “dirty money” from Russia and other countries by setting up a register of overseas entities and their beneficial owners and requiring overseas entities who own land to disclose their identities. In Episode 160 Rosalind English talks to Oliver Bullough, a journalist who has lived and worked throughout the former Soviet Union. His latest book, Butler to the World, makes a forceful point about how Britain has become a servant to all comers as long as they pay enough. Not just the banks and estate agents; lawyers are complicit too, in his view:
We have essentially given their oligarchs a back door to a fair dispute resolution process that they can deprive their fellow citizens of
Will these new legislative measures work? Only if our enforcement agencies are properly resourced, says Bullough. Just four “unexplained wealth orders” have been made since they were introduced by the Teresa May government in 2018. Perhaps it takes a crisis like the current one to give this legislation some force.
“A Decent Death” is the title of an article written by former Court of Appeal judge Stephen Sedley, and published in the London Review of Books, to which Sir Sedley is a frequent contributor.
In Episode 158 of Law Pod UK, Rosalind English considers the points made by Sir Stephen in his erudite and forthright column with Trevor Moore, Chair of the assisted dying campaign My Death, My Decision.
With clips from Sir Stephen’s presentation of his talk, we consider the contradictions in the law which still renders assisted dying a criminal offence, but allowed Coronavirus restrictions to be lifted to enable people to travel to end their lives at Dignitas in Switzerland; the stressful possibility faced by relatives returning from Switzerland that they are at risk of being prosecuted under the 1961 Suicide Act, and the constant buck-passing of reforms to this Act between the courts and Parliament.
As Sir Stephen commented in his talk, the “historical anathema”, of punishing either unsuccessful suicides or their families, lives on in the undifferentiated crime of assisting a person to commit suicide.
The present-day offence fails – signally – to differentiate between the intervener who, out of self-interest or perversion, helps to ensure that a suicide attempt succeeds, and the individual who, out of compassion, gives a rational fellow being the help he or she needs to end a life that has become medically unbearable.
For those of you who have listened to this episode, here is another reflection from Sir Stepen, on the obligation on family members returning from Switzerland, to protect themselves from prosecution under the Suicide Act by reporting themselves to the police.
On self-incrimination, I think there’s possibly more to be said. The senior police officer or crown prosecutor whose desk the case reaches may be personally (even doctrinally) hostile and decide – armed now with a full ‘confession’ given in the hope of clemency under the DPP’s policy – to prosecute. In that event there is no defence of compassion; the jury may have to convict. I find this a terrifying scenario.
This was an interesting ruling on the matter of standing, something that has fallen rather by the wayside since it formed the subject of much satellite litigation in the 1990s. In essence, the Court ruled that the GLP had no standing to bring this claim. Despite its articles of association, whose purposes include the provision of sound administration and equality, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or benevolent purpose ancillary”. Such a general statement of objects could not confer standing on an organisation:
That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case. [58]
Arguments before the Court
The GLP and the Runnymede Trust brought a challenge to the government’s decision to appoint two individuals to head Covid projects such as the Test and Trace programme (Baroness Harding of Winscombe (Dido Harding) was one of the individuals named). Mike Coupe, Director of Testing, NHS Test & Trace, was the other.
The claimants contended that the government had a practice of appointing people to positions critical to the government’s response to the COVID-19 pandemic without open competition, that only candidates with some relevant personal or political connection to the decision-maker were appointed, and that, even though the positions to be filled were senior and strategically important, the person appointed was unpaid. The Claimants said this gave rise to indirect discrimination on grounds of race and/or disability. They made other complaints about the process used by the Defendants.
The Defendants disputed all these claims on their merits. In addition, they contended (a) that the matters complained of had now been overtaken by events rendering the claims academic, and that for that reason, the claims should not be determined by the court; (b) that the claims had been brought too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also one further matter, which the Court considered in the context of the standing issue, although it was conceptually distinct. That was whether the decisions challenged were amenable to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review.
In our latest episode I and co-presenter Emma-Louise Fenelon have selected and put together some of our favourite snippets from the past year. This episode ranges from Artificial Intelligence, the government’s abandon with Henry VIII powers, to vicarious trauma in lawyers dealing with traumatic casework and the Henrietta Lacks claim against a pharmaceutical company for profiting from her cell lines in 1951.
This selection is by no means comprehensive and we’ve had to leave many deserving episodes out in the interests of brevity. For those wanting to keep abreast of their CPD requirements or just after a good informative listen, go back to some of our episodes on Medical and Inquest Law, Loss of Chance in clinical negligence, and “Historical” Crimes: Ireland’s unmarried mothers and their children.
We have been building on our impressive audience figures around the world, with listeners in over twenty countries including the United States, New Zealand, Spain, Saudi Arabia and Taiwan. In the summer of 2021 we passed the half a million listeners mark.
As we settle into the new year we have plenty of interesting names and topics in the pipeline for you. Law Pod UK is one of the longest running legal podcasts from barristers’ chambers in the UK and we have commanded sufficient authority and respect to gain access to big names, such as the founder of the Magnitsky Act, Bill Browder, and former chief prosecutor for England and Wales Nazir Afzal OBE.
The European Court of Human Rights has, by a majority, declared the application inadmissible. The decision is final.
Background facts and law
The case concerned the refusal by a Christian-run bakery to make a cake with the words “Support Gay Marriage” and the QueerSpace logo on it which the applicant had ordered and the proceedings that had followed. The following summary is based on the Court’s press release.
The applicant, Gareth Lee, is a British national who was born in 1969 and lives in Belfast. He is associated with QueerSpace, an organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.
Although same-sex marriage had been enacted in the rest of the UK in 2014, it was made legal in Northern Ireland only in 2020.
In 2014, Mr Lee ordered a cake for a gay activist event set to take place not long after the Northern Irish Assembly had narrowly rejected legalising same-sex marriage for the third time. He ordered it from Asher’s bakery. The cake was to have an image of Bert and Ernie (popular children’s television characters), the logo of QueerSpace, and the slogan “Support Gay Marriage”. He paid in advance.
This was an application for permission to challenge to the Managed Hotel Quarantine (MHQ) scheme. MHQ was put into place under Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.
The claimants contended that the scheme violated the Article 5 ECHR rights of those who were subjected to it. A particular focus of the proposed claim for judicial review was to identify the category of travellers who came to (or back to) England from Red List countries into the MHQ scheme, and who were required to remain within the scheme, notwithstanding that they could demonstrate that they had been vaccinated.
In this week’s episode of Law Pod UK Rosalind English reports from the UK Bar Council’s 19th Annual Law Reform Lecture, exploring the role of law reform in the context of climate change. You will hear excerpts from the speeches given by Inger Andersen, Under-Secretary-General of the UN and Executive Director of the UN Environment Programme, and Lord Carnwath of Notting Hill, a former UK Supreme Court judge.
State of the Netherlands v. Urgenda Foundation (Dutch: De Staat Der Nederlanden v. Stichting Urgenda), Supreme Court of the Netherlands, 20 December 2019 (unofficial translation here)
Juliana, et al. v. United States of America, et al., 947 F.3d 1159 (9th Cir. 2020)
Milieudefensie et al. v. Royal Dutch Shell plc (26 May 20212. This ongoing claim is based on the Urgenda decision, which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens).
This was a renewed application by the claimants for permission to proceed with a judicial review challenge to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which requires a registered person who runs a regulated activity in a care home to ensure that any person entering the premises has been vaccinated, unless for clinical reasons that person is exempt.
These new regulations regarding the mandatory vaccination of care workers came into effect on 11 November 2021. The claimants, both employed by care homes, challenged the legality of these regulations (passed under the Health and Social Care Act 2008). Whilst the claimants accepted that the 2021 Regulations fell within the scope of the 2008 Act, they argued that s.45E of the Public Health (Control of Disease) Act 1984 was engaged and, when the provisions are read together, s.45E precludes Regulation 5(3)(b). Section 45E provides that Regulations made under s. 45B or s. 45C may not include provision requiring a person to undergo medical treatment.
This was one of those deeply troubling cases where there was disagreement amongst the family members over whether their incapacitated brother/father should continue with clinically assisted nutrition and hydration. One brother had applied for ANH to be discontinued, but because of the objections of the patient’s son, it was said that he would “continue to be cared for by nursing staff”.
As Hayden J observed, this was a “troubling non sequitur”:
Family dissent to a medical consensus should never stand in the way of an incapacitated patient’s best interests being properly identified. A difference of view between the doctors and a family member should not be permitted to subjugate this best interest investigation.
This particular hearing was ex post facto: in 11th June 2021, Hayden J delivered an extempore judgment in which he indicated why the continued provision of nutrition and hydration to GU, in the manner outlined above, was contrary to GU’s interests. However, having concluded that it was not in GU’s best interests to continue to receive CANH at the hearing on 11th June 2021, he considered it was necessary to afford RHND the opportunity of explaining what had happened. Amelia Walker of 1 Crown Office Row represented the hospital in these proceedings.
On the one hand, there are raptors. On the other there are game birds. The former are highly protected under statute. The latter bring in serious revenues to rural businesses for shoots. Hen Harriers (image right) are dependent on, amongst other things, the protein from grouse chicks for their young.
On the cuteness scale, I know who wins, wings down.
But here we have it. The voracious teenagers that you see in the first paragraph are the protected species. The fluffy number in image 2 is a designated target for paying hunters, as well as mother hen harriers.
This case was an appeal by the RSPB and Dr Mark Avery, a scientist specialising in nature conservation, against a ruling by the court below that the grant of a licence by the respondent, Natural England (NE), to “take and disturb” hen harriers from the Northern English uplands for scientific, research or educational purposes pursuant to the Wildlife and Countryside Act 1981 Pt I s.16(1)(a) was lawful.
Background law and facts
Under Article 4 of Directive 2009/147 on the conservation of wild birds, EU Member States are required to designate special protection areas (SPAs) for their conservation. There are two such SPAs in England.
Under this network of rules it is a criminal offence to disturb these protected birds. Nevertheless they have been persecuted: killing and nest destruction by contractors employed to maximise the number of grouse available for shooting in the autumn.
In an effort to resolve the impasse between conservationists and landowners running shoots, NE in 2015 recommended piloting a “brood management scheme”, whereby eggs and chicks would be removed from the parental hen harrier nests, reared in captivity and then released when they were fully fledged into a suitable habitat, away from the grouse moors. NE duly received a licence application in 2017, on which they carried out a Habitats Regulations Assessment pursuant to Regulation 63 of the Conservation of Habitats and Species Regulations 2017. This report did turn up a potential decrease in breeding and juvenile survival as the principal risk of the trial and suggested potential mitigation. Apparently no such mitigation was available. So the NE completed a Technical Assessment and concluded that there was no satisfactory alternative to the proposed scientific trial.
The first licence for relocation of eggs and chicks was granted in January 2018.
A “HeLa” cell is, or was, the name of a cell from a line of fast producing cancer cells that was taken from the tumour of a patient who died of cervical cancer at Johns Hopkins Hospital in 1951. These cells reproduce at such a rate they have been described as “immortal” and they have touched all corners of medical research and therapy in the past seven decades. They’ve formed the basis of the polio vaccine; they’ve helped with research into IVF and infertility as well as HIV. They were of tremendous importance to medicine then and medicine now.
Henrietta Lacks’ family, once they were made aware of the continuing research on her cells, have made various efforts to claim reparations for this non-consensual use of her body parts. The estate has now launched proceedings against Thermo Fisher, the pharmaceutical company that bought the cells from the hospital at the time; see my previous post on this lawsuit here.
In Episode 152 of Law Pod UK I discuss this case with Jacob Serco, Professor of Law at the College of Law and a specialist in genomic biology at the University of Illinois, where his research focuses on the legal and ethical implications of advanced biotechnologies, especially as related to intellectual property. He is a leading expert on IP protection for genome-editing technologies, including CRISPR.
Professor Serco provides an illuminating guide to the US law on biotechnology in this episode and we discuss the prospects of this particular lawsuit. But this is only the latest of a series of episodes in which Henrietta Lacks’ cells have been in the limelight. In October last year the Lacks foundation received a “six figure” donation from the Howard Hughes Medical Institute by way of “reparation”; in 2013 the US National Institute of Health settled upon a new agreement under which Lack’s genome data would be accessible only to those who apply for and are granted permission. The modern interest in her case was sparked by the book by Rebecca Skloot about her case. The Immortal Life of Henrietta Lacks stayed on the NYT bestseller list for two years and was followed by a film of the same name.
In the latest Episode of Law Pod UK Rosalind English talks to Robert Kellar QC of 1 Crown Office row about the proposed reforms to the regulation of doctors, nurses, opticians, chiropractors and a range of other professionals in the world of healthcare. It’s particularly important to allow regulators to react to unexpected challenges, as we’ve found since the recent Covid-19 emergency.
As Robert explains, the proposals directed at overhauling the system of professional healthcare regulation aim to introduce greater consistency across the regulatory bodies (we have an impressive nine organisations at the moment). Whether this and other proposals to increase the autonomy of these bodies will increase public safety whilst still respecting practitioners’ rights remains to be seen.
Here are the links to the Government White Paper and the Consultation Paper discussed in Episode 151:
In Episode 150 Rosalind English talks to Professor Ryan Abbott about the recent ruling in the Court of Appeal on whether an invention made by Artificial Intelligence without a traditional human inventor is entitled to a patent. The Court (with one of the judges dissenting) said no.
Ryan Abbott is the author of The Reasonable Robot: Artificial Intelligence and the Law published last year and he has published widely on issues associated with law and technology, health law, and intellectual property in leading legal, medical, and scientific books and journals. He is also a licensed physician, attorney, and acupuncturist in the United States, as well as a solicitor advocate in England and Wales.
He is also architect of this important test case. We discuss the obstacles faced by the inventor of an AI set out in the Patents Act 1977 and speculate whether there needs to be a root and branch review of patent eligibility, given that so many inventions are produced by AI across the world.
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