Category: Case law


Conscience and cake: the final chapter

15 October 2018 by

gay cake.jpg

The cake at the centre of the controversy — Image: The Guardian

Lee v. Ashers Baking Company Ltd – read judgment here.

On Wednesday the Supreme Court handed down its much-anticipated judgment in the ‘gay cake’ case. The Court unanimously held that it was not direct discrimination on grounds of sexual orientation or political opinion for the owners of a Northern Irish bakery to refuse to bake a cake with the message ‘Support Gay Marriage’ on it, when to do so would have been contrary to their sincerely held religious beliefs.

The judgment is a significant and welcome affirmation of the fundamental importance of freedom of conscience and freedom of speech. The Court emphasised that refusing to provide a good or service to someone because they are gay (or because of any other protected characteristic) is unlawful discrimination — this judgment should not give anyone the idea that discrimination is now acceptable. However, the Court made clear that the purpose of equality law is to protect people, not ideas, and that no-one should ever be compelled by law to make a statement or express a message with which they do not agree.

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Human trafficking: is our system for combating it fit for purpose?

28 September 2018 by

trafficking.jpgHuman trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.

The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.

Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.

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The Round Up: attempted murder, mass data collection, and what the Vote Leave judgement really said.

17 September 2018 by

Skripal

Credit: The Guardian

Conor Monighan brings us the latest updates in human rights law

In the News:

The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal.  Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.

The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service.  The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.

In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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ALBA Summer Conference 2018: A Review (Part 1)

13 September 2018 by

alba

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.

The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights.
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The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

27 May 2018 by

Yes campaigners react as they wait at Dublin Castle for the official result of the Irish abortion referendum

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

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Supreme Court: unfairness/equal treatment only an aspect of irrationality

16 May 2018 by

R (o.t.a. Gallaher et al) v. Competition and Markets Authority  [2018] UKSC 25, 16 May 2018, read judgment

UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.

This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.

The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.

6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.

Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?

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The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by

A woman in a room of servers

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

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Headline- Round Up: Sir Cliff Richard’s case against the BBC reaches the High Court

23 April 2018 by

Conor Monighan brings us the latest updates in human rights law

cliff

Credit: The Guardian

In the News:

The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.

In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.

Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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Igniting the Green Revolution: some brain storming from environmental lawyers

21 April 2018 by

Image may contain: 3 people

Image Credit: Tobias Schreiner, PIEL UK

On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.

This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’

In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’

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Round Up- Do trained lawyers have a human right to represent themselves in court?

9 April 2018 by

Conor Monighan brings us the latest updates in human rights law

The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.

European-court-of-human-r-009

Credit: The Guardian

Correia De Matos v. Portugal

This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.

The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
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The Round-Up: Worboys Ruling Strikes a Blow to Parole Board Privacy, Criminal Bar to Strike over Legal Aid Cuts, and Did Vote Leave Breach Election Law?

2 April 2018 by

John Worboys is escorted in handcuffs into the royal courts of justice.

Image Credit: Guardian

R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].

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The Round-Up: Government wins benefits cap appeal, the scope of employee misconduct, and international crimes against humanity

19 March 2018 by

Baby holds a woman's finger

Image credit: Guardian

DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.

Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:

the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.

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The Round Up – Strikes, detainees, and was it a poison plot?

11 March 2018 by

Conor Monighan brings us the latest updates in human rights law

Abbott

Photo credit: The Guardian

In the News:

Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.

The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.

This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website.
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The Round-Up: Deportation by Data Deals, Dubs, and a Step Towards Decriminalising Sex Workers

5 March 2018 by

A doctor looks at a patient’s readings on a health monitor.

Photo credit: Guardian

In the News

UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.

Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.

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Round Up: Worboys, air pollution, and Germany’s social media law

25 February 2018 by

In the News:

taxi

Credit: Garry Knight, Flickr

Commissioner of Police of the Metropolis v DSD

The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR.  In this case the obligation had been breached.

The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court.
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