Media By: Rosalind English
29 September 2016
The imminent litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.
A quick reminder of what this is all about:
In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.
Here is the skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance
The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.
This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament. This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.
Because parliament brought us into the UK, only parliament can authorise a decision to leave.
Since the prerogative forms part of the common law, the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.
Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.
The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.
The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.
Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.
Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.
Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.
In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.
The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.
The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.
If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.
It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.
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28 September 2016
Not only is God dead, says Israeli professor Yuval Noah Harari, but humanism is on its way out, along with its paraphernalia of human rights instruments and lawyers for their implementation and enforcement. Whilst they and we argue about equality, racism, feminism, discrimination and all the other shibboleths of the humanist era, silicon-based algorithms are quietly taking over the world.
His new book, Homo Deus, is the sequel to Homo Sapiens, reviewed on the UKHRB last year. Sapiens was “a brief history of mankind”, encompassing some seventy thousand years. Homo Deus the future of humankind and whether we are going to survive in our present form, not even for another a thousand years, but for a mere 200 years, given the rise of huge new forces of technology, of data, and of the potential of permissive rather than merely preventative medicine.
We are suddenly showing unprecedented interest in the fate of so-called lower life forms, perhaps because we are about to become one.
Harari’s message in Sapiens was that the success of the human animal rests on one phenomenon: our ability to create fictions, spread them about, believe in them, and then cooperate on an unprecedented scale. These fictions include not only gods, but other ideas we think fundamental to life, such as money, human rights, states and institutions. In Homo Deus he investigates what happens when these mythologies meet the god-like technologies we have created in modern times.
In particular, he scrutinises the rise and current hold of humanism, which he regards as no more secure than the religions it replaced. Humanism is based on the notion of individuality and the fundamental tenet that each and everybody’s feelings and experiences are of equal value, by virtue of being human. Humanism cannot continue as a credible thesis if the concept of individuality is constantly undermined by scientific discoveries, such as the split brain, and pre-conscious brain activity that shows that decisions are not made as a result of conscious will (see the sections on Gazzaniga’s and Kahneman’s experiments in Chapter 8 “The Time Bomb in the Laboratory”).
…once biologists concluded that organisms are algorithms, they dismantled the wall between the organic and inorganic, turned the computer revolution from a purely mechanical affair into a biological cataclysm, and shifted authority from individual networks to networked algorithms.
… The individual will not be crushed by Big Brother; it will disintegrate from within. Today corporations and governments pay homage to my individuality, and promise to provide medicine, education and entertainment customised to my unique needs and wishes. But in order to do so, corporations and governments first need to break me up into biochemical subsystems, monitor these subsystems with ubiquitous sensors and decipher their working with powerful algorithms. In the process, the individual will transpire to be nothing but a religious fantasy.
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21 September 2016
Smith v Lancashire Teaching Hospitals NHS Trust and another  EWHC 2208 (QB) – read judgment
Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.
The issues before the Court
The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners.
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11 September 2016
Shortly after the Brexit referendum, the President of the EU Commission Jean-Claude Juncker declared that he had
forbidden Commissioners from holding discussions with representatives from the British government — by presidential order.
In effect, he has prohibited any executives in the EU Commission from embarking on negotiations with British government representatives before the government triggers the exit process under Article 50. Now a legal challenge is being proposed to the legality of Mr Juncker’s declaration. There is no basis for this so-called “presidential order”, say the challengers, a group of British expats seeking to protect their interests in the negotiations over the UK’s exit.
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5 July 2016
… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?
In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.
- The House of Lords EU Report
Is Article 50 the only means of leaving the EU?
States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so.
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1 July 2016
M, R (on the application of) Human Fertilisation and Embryology Authority  EWCA Civ 611 (30 June 2016)
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.
The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.
The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.
Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee.
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28 June 2016
Supporters of Brexit and campaigners for animal welfare are not natural bedfellows. And indeed my quick poll of the intuitive reaction to Thursday’s vote revealed anxiety about a future race to the bottom in terms of welfare standards as European regulations are unpicked and new trade deals are carved out, whether with individual member states of the EU, the European Union as a whole, or under the surveillance of the WTO. (But here’s a call for action: https://action.ciwf.org.uk/ea-action/action?)ea.client.id=119&ea.campaign.id=53173&ea.tracking.id=98b15a7c&utm_campaign=transport&utm_source=ciwftw&utm_medium=twitter
Which is why it is critical at this moment to remember that the obstacle in the way of this country reviewing its participation in the trade in live animals is one of the pillars of the EU Treaty: free movement of goods. Animals are regarded as goods, and any measure adopted by a member state government interfering with the movement of livestock within the single market and beyond its borders with its trading partners has been prohibited as a “quantitative restriction” on exports. When we are eventually free of this overarching prohibition, no time should be lost in grasping the opportunity to alter our laws in recognition of humane standards in animal husbandry.
Some Background: veal crates and the port protests in the 1990s
Just at the time when the red carpet was being rolled out for the Human Rights Act, campaigners for the rights of non human animals had their eye on a much more difficult task: persuading the government that shipments of young calves to veal crates across the Channel defeated our hard-won animal welfare laws and were in breach of the EU’s own proclaimed animal protection measures. The practice of rearing veal for the popular white meat involves confining a week old calf in a box for five months until slaughter. The well respected farm animal charity Compassion in World Farming managed to convince the UK courts that they not only had standing but an arguable case that this export trade breached the domestic prohibition on the veal crate system as well as the relevant EU Convention and Recommendation. CIWF contended that the UK government had power under Community law
to restrict the export of veal calves to other Member States where the system described above was likely to be used, contrary to the standards in force in the United Kingdom and the international standards laid down by the Convention to which all the Member States and the Community had agreed to adhere….
the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organisations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.
In fact the EU rules merely contained stipulations as to the minimum width of veal crates and the composition of veal calves’ diets.
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25 May 2016
Z (A Child) (No 2)  EWHC 1191 (Fam) 20 May 2016 – read judgment.
The Court of Protection has granted an order for a declaration of incompatibility with Convention rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination.
This case concerned a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother. The surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law.
Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father’s sole parentage of Z. Following that court order he was registered as Z’s father in Minnesota. The father has since returned to this country, bringing Z with him.
The legal effect of this is that the surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in the UK as being his mother. By the same token, whatever his legal rights in Minnesota, the father has no parental responsibility for Z in this country. The only two ways in which the court could secure the permanent transfer of parental responsibility from the surrogate mother to the father is by way of a parental order or an adoption order. The father would obviously far prefer a parental order.
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27 April 2016
In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others  EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80).
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20 April 2016
Spencer v Anderson (Paternity Testing)  EWHC 851 (Fam) – read judgment
A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.
The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies.
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6 April 2016
Economic Freedom Fighters v Speaker of the National Assembly, President Jacob Zuma and Public Protector Case CCT 143/15; Democratic Alliance v Speaker of the National Assembly, President Jacob Zuma, Minister of Police, Public Protector with Corruption Watch as Amicus Curiae – Case CCT 171/15 (31 March 2016) – read judgment
The Constitutional Court of South Africa last week handed down a damning judgement against the ruling head of the African National Party (the ANC). Despite this judgment, parliament voted not to impeach him. The ANC defeated the opposition-sponsored motion, saying Mr Zuma was not guilty of “serious misconduct”.
See University of Cape Town law professor Richard Calland’s article on the consequences of this ruling for President Zuma.
Background to the Constitutional Court proceedings
The Public Protector is an institution set up under the South African Constitution to ensure good governance and “strengthen constitutional democracy in the Republic”. She investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at President Zuma’s Nkandla private residence, and she concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him and his family. Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.
For well over a year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Therefore the EFF and the DA took these applications agains the National Assembly and the President, arguing that the President should be ordered to comply with the remedial action.
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1 April 2016
The leader of South Africa’s main opposition party, the Democratic Alliance, has called for President Zuma to be impeached following the Constitutional Court’s finding that he had flouted the Constitution by failing to “uphold, defend and respect the Constitution.”
The case was brought by the Democratic Alliance, amongst others, seeking validity for the Public Protector’s remedial action against the President. Public Protector Thuli Madonsela had reported that Zuma should reimburse the country the money he has spent on upgrades to his palatial homestead. As a course of this remedial action, she recommended that he pay back a portion of the funds used for the upgrades. But this report was set aside by the National Assembly after Zuma made submissions on why he should not pay back the funds.
Chief Justice Mogoeng Mogoeng, giving judgment for the Court, said that the remedial action had a binding effect.
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18 February 2016
It is important to note that the draft judgment of the Supreme Court was embargoed from all apart from solicitors and counsel until today so our client, Ameen Jogee, and his family only found out about our success this morning. There are also no facilities for Ameen to attend court so his family have authorised us to release this statement:
- We are glad our arguments on the law were accepted by the court and very pleased that the court took this opportunity to correct a grossly erroneous tangent of law and remove “parasitic accessorial liability” (often referred to as “joint enterprise”) from our law.
- The law had incorrectly and unfairly developed to convict secondary parties on the basis of mere “foresight or contemplation” of what someone else might do. This over-criminalised secondary parties, particularly young people like Ameen Jogee.
- The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods. Primarily, we suggested to the Court that there should be a return to the foundational law encapsulated in cases before the tangent created by joint enterprise. Our primary submission at the hearing in October 2015 was that the true test for accessorial liability is knowledge of the essential matters of that offence or that type of offence and acts which demonstrate an intention to assist or encourage that offence or that type of offence. Such a formulation can adapt to individuals assisting each other or cases where there is evidence of a common plan. The Supreme Court judgment appears to adopt our submissions.
- We are delighted for Ameen and his family and the many other families of those affected by joint enterprise who have been waiting on this judgment.
- This judgment does not refer in detail to all the material placed before the court so future cases and appeals must take care to ensure that the errors are not repeated.
- Internationally it is vital that the errors created by joint enterprise are also corrected.
- We would like to thank our excellent staff, our team of counsel Felicity Gerry QC and Catarina Sjölin of 36, Bedford Row and Adam Wagner and Diarmuid Laffan of 1 Crown Office Row. We would also like to thank the teams for Mr Ruddock and the interveners (Just for Kids Law and JengBA). Many of the lawyers involved have worked pro bono for all or some of the time on this difficult case.
- A special thank you to Dr Matt Dyson of Trinity College Cambridge whose meticulous research over 500 years of law enabled us to prove what the law was and how it went wrong. Also thank you to Beatrice Krebs from the University of Reading for her comparative work on authorisation which enabled us to place alternative options before the court, and to Professor Luke McNamara from the University of Wollongong whose 2014 paper identified the probability issues from an Australian perspective, which was an important part of this appeal.
- We must now focus on the final orders which are not due for some weeks. The Court is yet to decide what effect its conclusions on the principles of joint enterprise will have on our client’s specific case.
- If you want an easy read on the case, see these 2 blogs by Catarina Sjölin and Felicity Gerry QC for Nottingham Law School: http://blogs.ntu.ac.uk/nlsblog/tag/joint-enterprise/
- In the words of Hon Michael Kirby AC CMG “To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or ‘constructive liability’. But it countenances what is ‘undoubtedly a lesser form of mens rea’. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis”.
- We started this case looking for an alternative probability test for those who were not accused of direct participation with shared intention, along the way we identified the legal errors which had been perpetuated over many years.
We are glad to have played a role in correcting this unjust law.
17 February 2016
DPP v McConnell  NIMag (5 January 2016)
Silence is the language of God, all else is poor translation.
(Jalāl ad-Dīn Muhammad Rūmī , 13th Century Persian Islamic scholar and poet)
These words were the last in the ruling by DJ McNally in the Belfast county court, acquitting Pastor McConnell of grossly offending Muslims in a sermon that had been delivered in church but also transmitted over the internet. The Pastor had declared from the pulpit the there were more and more Muslims “putting the Koran’s hatred of Christians and Jews alike into practice”, and the sermon had continued in a similar vein.
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3 December 2015
King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80 read judgment
A woman who suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. Continuation of such treatment is unlawful, even if the refusal seems irrational to others. As the judge said, this rule
reflects the value that society places on personal autonomy in matters of medical treatment and the very long established right of the patient to choose to accept or refuse medical treatment from his or her doctor (voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).
The Trust’s further application to be allowed to restrain C “physically or chemically” from leaving the hospital where she was receiving the dialysis was therefore rejected.
The coverage of this case reflects a certain level of social disapproval. “Right to die for socialite scared of growing old” – “Socialite allowed to die was terrified of being poor” run the headlines. Behind them lurks an essentially religious consensus that people should not be allowed to opt out of senescence and its associated poverty and suffering, such matters being for God alone. There is also a measure of censoriousness behind the details brought to court regarding C’s attitude to motherhood and men, the news that she had breast cancer, her love of “living the high life” and her dread of growing old “in a council house”.
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