The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside  AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:
the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.
In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.
There were three issues:
1. Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).
2. Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?
3. If permission is given to amend the claim, should the new ground succeed?
Gilham (Appellant) v Ministry of Justice (Respondent)  UKSC 44 – read judgment
The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.
In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).
ARB v IVF Hammersmith & Another  Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children. Continue reading →
The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.
Stott, R (on the application of) v Secretary of State for Justice  UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).
Conway, R (on the application of) v Secretary of State for Justice  – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan  NICA 34. The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.
On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.” Mr Jordan was unarmed and was shot in the back. Three inquests have subsequently been held into his death. Continue reading →
Human 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.
R (o.t.a. Gallaher et al) v. Competition and Markets Authority  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?
Conor Monighan brings us the latest updates in human rights law
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. Continue reading →
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
Four Seasons Holdings v. Brownlie  UKSC 80, 19 December 2017, read judgment
Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.
The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.
The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.
On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.
But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.
Let me set the scene for this, before telling you the result.
Dover District Council v. CPRE Kent  UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
Khuja (formerly known as PNM) v. Times Newspapers  UKSC 49, Supreme Court, read judgment
The outcome of this case is summed up in its title, an unsuccessful attempt to retain anonymity in press reporting. It is a stark instance of how someone involved in investigations into very serious offences cannot suppress any allegations which may have surfaced in open court, even though no prosecution was ever brought against them.
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here
Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough. The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.
The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.
The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.
But the only justification for the delay was Purdah.
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