The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
1 Crown Office Row have launched a new regular podcast, Law Pod UK, with presenter Rosalind English, to discuss developments across all aspects of civil and public law in the UK.
It comes from the creators of the UK Human Rights Blog and is produced by the barristers at 1 Crown Office Row. Post production by Whistledown Studios.
Episode 5: Further ruling on NI abortion rights, Charlie Gard, and transgender in Ultra-Orthodox Jewish community (6 July 2017).
Sarah Jane Ewart and Rosalind English discuss the latest developments in access to abortion for Northern Irish women, the lessons to be learned from the Charlie Gard case, and the difficult decision that the courts had to reach when considering the best interests of children in an Ultra-Orthodox Jewish family, where the father had left the community as a transgender person.
Episode 4: Supreme Court rules on NI abortion case (19 June 2017)
Rosalind English discusses the recent Supreme Court judgement on the case of women from Northern Ireland who seek abortions on the NHS in England.
Episode 3: Negligence Ruling in Meningitis case (28 May 2017)
David Hart QC and Rosalind English discuss the implications of a recent negligence case involving a young doctor’s failure to diagnose a child with meningitis.
Episode 2: Female terror plot trial, legal aid for unaccompanied minors, Value For Justice & post-Brexit legal landscape (18 May 2017).
Sarah Jane Ewart and Rosalind English discuss the prospect of the first all female terror plot trial, legal aid for unaccompanied minors in immigration cases, the Bar Council’s manifesto “The Value of Justice”, the law post-Brexit, and shift sleeping and the minimum wage
Episode 1: Election pledges on human rights, citizenship for third country EU nationals, CAGE case latest (26 May 2017).
Poppy Rimington-Pounder and Rosalind English discuss party election pledges and the Human Rights Act, the Muslim advocacy group CAGE’s forthcoming legal battle, a freedom of conscience ruling for members of the armed forces in the Bahamas, and citizenship rights for the children of third country nationals in Europe.
You can subscribe to Law Pod UK via Audioboom here. They will shortly be available for subscription and download from iTunes.
Please get in touch if you would like to collaborate on any future episodes.
J v B (Ultra-Orthodox Judaism: Transgender)  EWFC 4 (30 January 2017) – read judgment
The Court of Appeal has granted permission to the father to appeal against the decision of the High Court earlier this year. Briefly, Peter Jackson J denied a father, who now lives as a transgender person, direct contact with his five children who live with their mother in the heart of a Charedi community of ultra-orthodox Jews.
The judge said that he had reached the “unwelcome conclusion”
that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.
The appeal hearing, estimated to last one day, will take place on 15 November 2017. Continue reading →
Today’s decision by the European Court of Human Rights marks the end of what has been a very difficult process and our priority is to provide every possible support to Charlie’s parents as we prepare for the next steps.
The Strasbourg Court by a majority endorsed in substance the approach by the UK courts, saying that they had been “meticulous” in their reasoning. It is likely that Charlie’s life support will now be withdrawn and he will be given palliative care only.
Following the Strasbourg Court’s request for interim measures for the UK – which means the hospital may not take Charlie Gard off life support as the Supreme Court has allowed it to do – the Supreme Court arranged a short hearing to take place Monday 19 June, to give directions. The Strasbourg Court has now put in place a further request that treatment and nursing care be continued beyond its original deadline of 19 June (see the press release from Strasbourg here: Gard and Others v. the UK). This is because that Court has to consider the parents’ application that the case does not just concern Charlie’s right to die with dignity but their rights under Article 8 as his parents to be afforded respect for their decisions as to what is in Charlie’s interests.
This is a unique situation facing the Supreme Court, and, probably, the judges of the European Court of Human Rights. As the UK court acknowledges, by granting a stay, even of short duration, it would “in some sense” be complicit in directing a course of action which is contrary to Charlie’s best interests, since this was its last word on the matter. It is no wonder that this is causing some soul-searching. The Strasbourg Court’s interim measures order is directed at the government, not Great Ormond Street Hospital or its doctors. The latter won a ruling from the Supreme Court that they should remove life support from Charlie Gard because it is considered to be in violation of his right to die with dignity, and, of course, not in his best interests. Continue reading →
R (o.t.a A and B) v. Department of Health  UKSC 41, 14 June 2017 – judgment here; previous post here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS. Continue reading →
R (o.t.a A and B) v. Department of Health  UKSC 41, 14 June 2017 – judgment here.
Sometimes The Law comes to the rescue. And by this I do not mean constitutional law versus populism or the rule of law versus raw-knuckled fighting. It just happens that, occasionally, litigation drawn from ordinary life encapsulates more political debating points than a week’s worth of press analysis.
If you want to hear the real deal about devolved government, Northern Ireland, sexual assault, the meaning of “England”, abortion, federalism, the power of the state, healthcare, medical tourism, women’s rights, discrimination, nationality, social security or the NHS, you need do no more than read this case. As for the majority judgments and the two dissenters, pay close attention to the language because within the phrasing other truths emerge.
Yates and Anor v Great Ormond Street for Children  EWCA Civ 410, 23 May 2017 – read judgment
On Thursday 8 June the Supreme Court will be asked to grant permission to appeal in this case of a seriously ill 9 month old child whose parents wish to take him to the USA for experimental treatment that may slow his deterioration.
The human issues are all over the press – this post will concentrate on the legal arguments in the Courts below, including the very recently published judgment of the Court of Appeal.
Perhaps the most interesting question in this case is not the statutory or human rights background, but the issue of jurisdiction. The court has as part of its inherent jurisdiction to rule on the child’s fate on the basis of his best interests. The appellants were arguing that this was not the test; that the question at the core of the consideration was that of “serious harm”. The parents argue that
the hospital’s application to prevent the delivery of a therapy which it did not, itself, intend to provide, was outside its powers as a public authority, and the court had no jurisdiction to uphold the hospital’s position.
FB v. Princess Alexandra Hospital NHS Trust  EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment
The UK Human Rights Blog is not only for the reading eye. Here’s an audio version of David Hart’s post on the case of a junior doctor, a sick baby and the question of what we expect of senior house officers on busy Accident and Emergency admissions.
These audio files will soon be searchable in iTunes or wherever you like to find your podcasts for download onto your phone, to listen to on the train, in the gym, on your bike or gardening. We will let you know as soon as they become available.
Here’s an audio version of Poppy Rimington-Pounder’s post this week where she expands on some of the developments and news items she covers in conversation with Rosalind English. We hope soon to have a podcast platform for these news roundups and other interviews with members of 1 Crown Office Row: watch this space.
Paradiso and Campanelli v Italy (Application no. 25358/12), 24 January 2017 – read judgment
The Strasbourg Court ruled earlier this year that the prohibition on commercial surrogacy arrangements did not justify the Italian authorities’ actions in removing a 9 month old child from its non-biological parents and taking him into social care. Although they found no right to family life applied in the circumstances, there was a right to private life which the Italian authorities had breached.
The majority judgment as well as the dissenting and partially concurring opinions summarised below reveal very different approaches to the concept of family life across the Strasbourg bench. Continue reading →
In a few weeks’ time we hope to have regular podcasts of our roundups and other legal news available from iTunes for subscription or one off downloads. In the meantime here’s a link to my interview with Sarah-Jane Ewart, where we’re talking about the events and cases she has covered in her most recent roundup for the UK Human Rights Blog. I’ve converted this audiofile to MP3 format so it should be easy to download onto any device and does not take up much room. We will let you know as soon as the full UK Human Rights Podcast series is launched for download onto your smartphone or wherever you like listening to audio.
ABC v St George’s Healthcare NHS Trust and Others  EWCA Civ 336 – read judgment
All the advocates in this case are from 1 Crown Office Row. Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy for the Appellant, and Philip Havers QC and Hannah Noyce for the Respondents. None of them were involved in the writing of this post.
In a fascinating twist to the drama of futuristic diagnosis, the Court of Appeal has allowed an argument that doctors treating a Huntington’s patient should have imparted information about his diagnosis to his pregnant daughter to go to trial.
The background to this case is outlined in my earlier post on Nicol J’s ruling in the court below. A patient with an inherited fatal disease asked his doctors not to disclose information to his daughter. The daughter came upon this information accidentally, shortly after the birth of her child, and found, after a genetic test, that she suffered from this condition as well, which has a 50% chance of appearing in the next generation. Had she known this, she would have sought a termination of the pregnancy. She claimed that the doctors were liable to her in damages for the direct effect on her health and welfare.
A claim for “wrongful birth” is well established in law; no claim was made on behalf of the child, who was too young to be tested for the condition. The twist is the duty of secrecy between doctor and patient, which has held very well for the past two centuries. Short of confessions pertaining to homicide or information regarding contagious diseases, the dialogue behind the consulting door should end there.
The problem is that the typical medical relationship only pertains to the pathology of the individual patient. Now that tests are available that make every single one of us a walking diagnosis not only for our own offspring but those of our siblings and their offspring, the one-to-one scenario collapses, along with the limited class of people to whom a doctor owes a duty of care. The pregnant daughter who came across the information about her father’s condition was not the defendant doctor’s patient. In pre-genetic days, that meant there was no duty of care relationship between her father’s doctors and her. But the certainty of hereditability brings her into that circle. Continue reading →
We have finished an overhaul of the Convention rights pages to reflect recent political and legal developments since they were last reviewed. The most important of these is the vote to leave the European Union and what implications this might have for the UK’s obligations under the European Charter of Fundamental Rights and Freedoms. For the moment I have left in place the editorial material matching each of the Charter rights with the Convention rights but the Charter and the role of the ECJ in UK legal affairs may be one of the first features of the post-Brexit landscape to change (see Marina Wheeler’s post on how that court might have overstepped the mark with the Charter, and David Hart’s discussion on the topic of ECJ muscle-flexing here, here and here).
Conway, R(on the application of) v The Secretary of State for Justice EWCA Civ 275
The Court of Appeal has overturned the refusal of the Divisional Court to allow a motor neurone disease sufferer to challenge section (1) of the Suicide Act. He may now proceed to seek a declaration under section 4(2) of the Human Rights Act 1998 that the ban on assisted dying is incompatible with the European Convention on Human Rights. The background to this appeal can be found in my post on the decision from the court below, which focussed on the vigorous dissent by Charles J.
Briefly, Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.
The main argument in support of the permission to appeal was that it was self-evident from the division of opinion in the Divisional Court that there would be a realistic prospect of success. Mr Conway’s legal team also argued that the issues raised about Mr Conway and those in a similar position to him were of general public importance and that this was a compelling reason for the appeal to be heard. Continue reading →
Conway, R (on the application of) v Secretary of State for Justice  EWHC 640 – read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP  UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.
In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.
The Court concluded – with an interesting dissent from Charles J – that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
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.