Category: In the news
17 October 2018 by Rajkiran Barhey
States applying Dublin III are the 28 EU Member States (blue), plus four associate countries (red and green)
R (on the application of Hemmati and Others) v The Secretary of State for the Home Department [2018] EWCA Civ 2122
The Court of Appeal has concluded, by a 2-1 majority, that the detention of five asylum seekers pending their removal to another country where they should first have claimed asylum had been unlawful, and that they were entitled to damages. This article (the first of two) will unpick the reasons behind this legally complex appeal.
Background to the case
The case concerned five individuals who had entered the EU via countries in Eastern Europe and eventually made their way to the UK illegally. All five claimed asylum in the UK.
The Dublin III Regulation – an EU-wide Regulation – creates a system which determines where a person should claim asylum. The key principle is that a person must claim asylum in the first Dublin country they reach, where they should stay.
However, as one example in this case, Mr Hemmati entered Bulgaria and claimed asylum, but then left and entered the UK illegally, where he claimed asylum. The UK therefore asked Bulgaria to take back Mr Hemmati. Bulgaria accepted and Mr Hemmati was detained before removal.
Article 28(1) of Dublin III says that a person cannot be detained if the only reason they are being held is because they are subject to ‘the procedure established by this Regulation.’ The ‘procedure’ is the process whereby a country determines the ‘right’ country where a person’s asylum claim should be determined, in this case when the UK asked Bulgaria to take Mr Hemmati back, and Bulgaria agreed. In plain English, Dublin III prohibited the UK from holding Mr Hemmati in detention if their only justification was that they were submitting a take back request to Bulgaria and waiting for Bulgaria to reply.
However, Article 28(2) says that if there is a significant risk that the person will abscond, then a Member State may detain the person.
Moreover, Article 2(n) defines the phrase “risk of absconding” in Article 28 as meaning “the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.” This creates an important safeguard regarding the exercise of the power under Article 28(2).
The key point is that in an Article 28 case, i.e. a person who is going through the Dublin III procedure, the only ground for detention is if there is a ‘significant risk of absconding‘, which is defined as reasons based on objective criteria defined by law.
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16 October 2018 by Jonathan Metzer
After 12 years as Head of Chambers at One Crown Office Row, during which Chambers grew steadily and the number of silks almost doubled, Philip Havers QC this month handed over the reins to his successor, Richard Booth QC.
Philip’s career so far has ranged over a great breadth of work, encompassing public and human rights law, clinical negligence, public inquiries and high profile inquests.
He regularly appears in landmark cases in the appellate courts. He recently acted as counsel to a prisoner who tried to persuade the Supreme Court that the prison authorities had to enforce the ban on smoking in public places, successfully defended the Crown Prosecution Service in the Supreme Court against a claim that a decision to prosecute a Somalian asylum seeker had been a breach of her Article 8 rights, and last week the Supreme Court gave judgment in a case of his involving an A&E receptionist who gave negligent advice to a patient about how long he would have to wait to be seen by a nurse (covered on this Blog here). He also appeared this summer in the Privy Council representing the Chief Justice of Trinidad and Tobago in a case concerning whether the constitution prevented the Law Bar Association of Trinidad and Tobago from inquiring into allegations of misconduct made against him.
Outside court he is a music lover, with a particular devotion to Tom Petty and the Traveling Wilburys. He is also a tennis fan, a wine connoisseur, and a keen gardener.
He sat down to answer a few of our questions about his career at the Bar and what he has learned.
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15 October 2018 by Rosalind English
The Supreme Court’s judgment on the liability of hospitals for the actions and misstatements of their non-medical staff is an important line in the sand for the NHS. Owain Thomas QC discusses the implications of this ruling with Rosalind English on Law Pod UK here, following his widely read post on the UK Human Rights Blog.
And as part of our repodcast arrangements with Catherine Barnard of Cambridge University, we have posted two new episodes on the Brexit negotiations, here and here. In Episode 46 of Law Pod UK Professor Barnard features an exclusive interview with Sir Ivan Rogers, the former UK Ambassador to the EU, following his speech to Trinity College Cambridge last week: “Brexit as a revolution”.
Law Pod UK is freely available for download from iTunes, Audioboom, the Podcast app or wherever you find your podcasts.
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15 October 2018 by Alasdair Henderson
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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14 October 2018 by Thomas Hayes
Baking takes up supreme court time on both sides of the Atlantic, the United Nations High Commissioner for Refugees makes an appearance in the Court of Appeal, Unexplained Wealth Orders make an entrance and more…
The biggest news of the week arguably came out of Northern Ireland. However, mercifully this blog can ignore the ongoing speculation regarding a Brexit settlement, the attitude of DUP MPs, the potential presence of border infrastructure and whether or not veterinary inspections and customs checks are of loose equivalence (well, at least for now…).
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14 October 2018 by David Hart QC
State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here
The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).
The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.
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11 October 2018 by Guest Contributor
The Supreme Court has unanimously allowed the appeal of Michael Darnley in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, holding that a hospital receptionist owed a duty of care to a patient at A&E, which was breached by providing him with incorrect information as to how long he was likely to have to wait before being seen or triaged.
The case raised questions as to the existence and scope of the duty of care owed by hospitals to patients who attend and are dealt with non-medical staff. The decision has potential implications for all those who are booked in to A&E even if no-one has professionally assessed their need for care.
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10 October 2018 by Rosalind English
Lloyd v Google LLC [2018] EWHC 2599 (QB) 8 October 2018 – read judgment
This is a novel form of action, but everything was new once (Warby J para 100)
Already today we are becoming tiny chips inside a giant data-processing system that nobody really understands. (Yuval Noah Harari, 21 Lessons for the 21st Century, p. 36)
Do people want privacy? Because they seem to put everything on the internet. (Elon Musk, interview on Joe Rogan podcast #1169 at 1.49)
Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary application for a representative claim last week.
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8 October 2018 by Guest Contributor
Today it was announced that the Intergovernmental Panel on Climate Change (IPCC) has published a special report on the impact of climate change which warns that the world is wildly off track from the target of keeping the rise in global temperature under control.
In this guest article, Dr Linda Roland Danil argues that a new international agreement is needed to prevent us from sleepwalking into serious trouble.
In 2015, 196 Parties came together and agreed to the Paris Agreement, under which they pledged to limit global warming to 1.5 to 2 degrees Celsius above pre-industrial levels. But the problem is that the Paris Agreement does not contain quantified, legally-binding obligations for the reduction of emissions. It also has no enforcement mechanism, such as an international tribunal. Instead, countries prepare their own national emissions targets – so-called Intended Nationally Determined Contributions or INDC’s – and report to each other on how well they are doing to implement their targets.
The Paris Agreement was undoubtedly an achievement in the realm of international climate negotiations, and although the Trump administration has notoriously recently pledged to withdraw from the Agreement, a withdrawal which cannot take effect until late 2020. 196 Parties, at different stages of economic development, and within a conflicting political context, all agreed on the importance of tackling the threat of anthropogenic global warming.
However, the Paris Agreement’s targets are simply not being met, with the national pledges by the signatory Parties having recently been argued to bring about only a third of the reduction of emissions by 2030 that is required.
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8 October 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.
Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.
Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.
The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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4 October 2018 by Rosalind English
Help Refugees Ltd, R (on the application of) v Secretary of State for the Home Secretary [2018] EWCA Civ 2098 – read judgment
This was an appeal by Help Refugees Ltd against the refusal of its application for judicial review of the secretary of state’s consultation process regarding the relocation of unaccompanied asylum-seeking children under Section 67 of the Immigration Act 2016.
Background law and facts
This provision was passed in response to the mass migration into Europe of unaccompanied asylum-seeking children (UAS children) from the Middle East and North Africa. Section 67 established a scheme whereby the secretary of state was required to arrange for the relocation of “specified number” of UAS children. That number was to be determined by the secretary of state in consultation with local authorities. Because the s.67 scheme was not the only route by which UAS children might lawfully enter the UK, the specified number was to represent the highest number of s.67 UAS children that the local authorities could reasonably accommodate. It is inherent in the provision that the interests of UAS children in being located in the UK have to be balanced against the interests of other children for whom local authorities are responsible, and the public interest in ensuring that there is reasonable resource capacity in the system to accommodate the UAS children. In late 2015 – 2016 the number of migrants hugely accelerated in France, reflected in the increase in attempts to make unauthorised access to the UK from France through ports in Kent. This in turn imposed a huge burden on the local authorities in that region to fulfil their obligations under the Children Act, necessitating relocation to other parts of the UK.
On 8 September 2016, the Home Office wrote to all local authorities asking each to specify the number of children it could accept under s.67. By October, when the refugee camps in Calais were being cleared, UAS children in France were assessed for transfer under s.67 against published criteria, such as age, length of time in Europe, and country of origin (with older Sudanese and Syrian UAS children being allowed in). UAS children in France were assessed for transfer against these published criteria. For practical purposes, those who satisfied the criteria were transferred; and those who did not were not. The latter were told simply that they had not met the eligibility criteria –
“Age 18+” or “Criteria not met”.
The charity challenged both the lawfulness of the consultation process and the adequacy of the reasons given to the rejected children. The Divisional Court rejected both grounds of challenge ([2017] EWHC 2727 (Admin)).
The charity argued that the secretary of state had (1) failed properly to discharge her duty to consult; (2) breached her common law duty of procedural fairness by failing to give adequate reasons to the rejected children.
Hickinbottom LJ, giving judgment for the Court, allowed the appeal.
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4 October 2018 by David Hart QC
Bayer Plc v NHS Darlington Clinical Commissioning Groups (CCG) and others [2018] EWHC 2465 (Admin) – read judgment
This judicial review concerned whether it was lawful for NHS clinical commissioning groups to adopt a policy for offering the drug Avastin to patients suffering from “wet” (or neo-vascular) age-related macular degeneration (AMD). Avastin, although not licensed for ophthalmic use, at £28 per injection is significantly cheaper than the licensed alternatives (£816 and £551 respectively per injection). The Royal College of Ophthalmologists has estimated that the NHS-wide saving of switching to Avastin was at least £102 million p.a.
Bayer and Novartis (with their drugs licensed for AMD) therefore had considerable financial interests in setting aside this policy. They sought review of the commissioning groups’ policy. The manufacturer of Avastin (Roche) was an interested party. The drug is widely used in other countries for neo-vascular AMD. The General Medical Council had issued guidance saying that doctors could prescribe off-label medicines provided they were satisfied that there was sufficient evidence or experience of using the medicine to demonstrate its safety and efficacy.
There were essentially six issues before the court.
Whipple J dismissed the claim for judicial review.
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2 October 2018 by darraghcoffey
Coroner for the Birmingham Inquests v Hambleton & Ors [2018] EWCA Civ 2081 (26 September 2018)
At an inquest, the Coroner must investigate four things: the identity of the deceased and how, when and where they came by their death. Ordinarily, the question ‘how the deceased came by their death’ means ‘by what means’ they came by their death (R v. North Humberside Coroner, ex parte Jamieson [1995] QB 1).
However, in some cases, an enhanced investigative duty arises. When the death under investigation may have involved a failure by the state to fulfil its positive obligations under Article 2 of the ECHR, the interpretation of ‘how’ must be expanded to include an inquiry into the ‘circumstances in which the deceased came by his or her death’.
Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081 involved such an inquest. The central question for the Court of Appeal (composed of a panel including the Lord Chief Justice and the Vice-President of the Criminal Division of the Court) was whether, as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham bombings, the Coroner was required to call evidence directed at identifying those responsible for the bombings. The Court of Appeal decided that, in this case, the Coroner was not so obliged.
One Crown Office Row’s Peter Skelton QC, Mathew Hill and Gideon Barth appeared on behalf of the Coroner. They were not involved in writing this post.
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2 October 2018 by Rosalind English
With the start of the legal term, we’ve posted three great podcasts on Law Pod UK. Episode 42 looks at the influence of international law on individual rights after Brexit. In Episode 43 Clare Ciborowska discusses the new offence of coercive and controlling behaviour in family proceedings. And in Episode 44 we go to the Sainsbury Laboratory in Cambridge to find out what plant scientists think of the recent CJEU ruling on genetically modified organisms.
Law Pod UK episodes are available for free download on iTunes, Audioboom, the Podcast App or wherever you find your podcasts.
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1 October 2018 by Eleanor Leydon
The European Court of Justice. Image Credit: The Guardian
The courts open again for Michaelmas term today, but in the meantime the round-up has the latest on a fresh set of challenges to government and NHS policy, plus a successful Brexit reference to the ECJ.
Firstly, a legal action seeking to establish whether the UK can unilaterally revoke Article 50 of the Lisbon Treaty has been referred to the European Court of Justice by the Court of Session, Scotland’s supreme civil court.
The action was brought by a cross-party group of six Scottish MPs, MEPs and MSPs, and the Good Law Project. The case was initially rejected in June as “academic and hypothetical”, but on appeal judges rejected the government’s core argument that the question was “academic” given that their policy is to leave the EU. Lord Carloway, Scotland’s most senior judge, commented: “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU.”
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