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In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.
Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.
The Equality and
Human Rights Commission has published a report into legal aid and access to
justice for discrimination cases. Its recommendations include reforming the
telephone service to make reasonable adjustments for disabled users, adjusting
the threshold and financial evidence requirements for financial eligibility, and
addressing the asymmetry in terms of claims for legal representation between
discrimination and other cases. The full report is available here.
The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.
In the courts
Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.
MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.
On the UKHRB
Amelia Walker discusses the investigation into abuse at Brook House.
On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.
Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.
Plans to build a fourteen mile, six lane motorway through the Gwent Levels south of Newport to relieve congestion on the M4 have been scrapped by the Welsh government. The announcement by first minister Mark Drakeford was welcomed by environmentalists, local residents and small businesses who opposed the scheme at last year’s public inquiry. Alasdair Henderson, Dominic Ruck Keene and Hannah Noyce from 1 Crown Office Row with other barristers from Guildhall Chambers (Brendon Moorhouse) and Garden Court (Irena Sabic and Grace Brown) represented Gwent Wildlife Trust and an umbrella of other environmental objectors in the proceedings which lasted from February 2017 to September 2018. All these barristers acted for free. Environmental NGOs such as the Environmental Law Foundation, should be particularly pleased by Drakeford’s acknowledgement the campaigners’ efforts:
MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening) [2019] EWHC 1523 — judgment not yet on Bailii but available here.
The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.
Background: The Panorama exposé
MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.
The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.
On 7 September 2017 the BBC’s Panorama programme aired a documentary Undercover: Britain’s Immigration Secrets. This showed footage recorded secretly by a Detention Custody Officer (DCO) at the IRC.
In unanimously allowing an appealagainst a decision to declare the appellant intentionally homeless due to her inability to pay her rent, the Supreme Court affirmed that non-housing benefits are not designed to create a surplus that can be used to account for insufficient housing benefits.
Factual Background
The appellant, Ms Samuels, was an assured shorthold tenant
of a property in Birmingham, where she lived with her four children. Having
fallen into rent arrears she was given notice to leave and subsequently applied
to the respondent council as homeless under Part VII of the Housing Act 1996.
The council instead decided that she was intentionally homeless on the grounds
that her current accommodation was affordable and it was only due to the
appellant’s deliberate decision not to pay the rent that had resulted in her becoming
homeless.
At the time that Ms Samuels left the property she was entirely dependent on social security benefits which amounted to a total of £1,897.84 per month. This figure comprised: (a) housing benefit (£548.51); (b) income support (£290.33); (c) child tax credit (£819.00); and (d) child benefit (£240.00). Excluding the housing benefit, the total available for living expenses was £1,349.33.
Ms Samuels’ rent was £700, leaving a shortfall of £151.49 when compared to her housing benefit, whilst she calculated her other monthly expenditure to be £1,234.99, comprising: (a) food/household items (£750); (b) electricity (£80); (c) gas (£100); (d) clothes (£50); (e) TV license (£43.33); (f) school meals (£43.33); (g) travel (£108.33); (h) telephone (£20); and (i) daughter’s gymnastics (£40).
Overall, Ms Samuels was left in the unfortunate position of having expenses totalling £1,934.99 with only £1,897.84 worth of social security benefits to cover these expenses.
In Episode 84, Emma-Louise Fenelon talks to Jo Moore, Head of Outreach at 1 Crown Office Row, and Laura Bruce, Head of Programmes and Partnerships at the Sutton Trust. They discuss improving equality and diversity at the Bar by improving access to the Bar for future generations. Listen here.
To speak to Jo about getting involved with outreach, email her at jo.moore@1cor.com. To speak to Laura about getting involved with the Sutton Trust email her at info@suttontrust.com.
Law Pod UK is available on Spotify, iTunes,Audioboom, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.
Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.
As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.
Much of the case will be heard in private over the next week.
The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.
The factual background
Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.
Mr Lachaux brought libel actions against three newspapers in respect of five articles.
The Supreme Court has rejected a challenge by lone parents with young children to the reduced benefit cap, holding by a majority of 5-2 that its discriminatory effects are justified. Although disappointing for campaigners, the judgment helps to clarify many aspects of discrimination law in the context of social and economic policy.
Background: the benefit cap
The benefit cap was first introduced in the Welfare Reform Act 2012. It applies as a limit on the total amount of welfare benefits that one household can receive if they are out of work, initially set at £500 per week (or £26,000 per annum) for families with children. As the limit applies irrespective of family composition, it has a severe effect on larger families and those such as lone parents with young children who may find it difficult to avoid it by finding work.
In the Court of Appeal, the council’s application to strike out the family’s claim that they were owed a duty under the common law given the statutory backdrop of the Children Act 1989 was allowed. In that judgement, the court identified two issues as being of chief importance. Firstly, as articulated in X (Minors) v Bedfordshire County Council and Hill v Chief Constable of West Yorkshire [1989] AC 53, the court recognised the risk that allowing liability in negligence would serve to complicate decision-making in a difficult field and potentially drive social workers towards defensive decision-making. Secondly, the court held that there was no liability for the wrongdoing of a third party, even where such behaviour is foreseeable. This reflected the decisions in Mitchell v Glasgow City Council and Michael v Chief Constable of South Wales.
The Supreme Court undertook a rigorous analysis of the case law pertaining to the liability of local authorities for harm caused by failure to perform their functions under statute, in particular in relation to the exercise of statutory duties owed to children. Of principle importance was the nature of any assumption of responsibility for the claimant’s plight accepted by the local authority or pubic body.
The court concluded that the public policy defence illustrated in X v Bedfordshire, which dismissed on pure policy grounds the existence of a duty of care owed by local authorities towards children with whom they came into contact in the performance of their functions under the Children Act 1989, was no longer good law. The existence of any duty instead required examination of the specific facts of the case applied to the general principles outlined in Robinson v Chief Constable West Yorkshire Police. These were summarised as:
The law should adopt an incremental approach to novel situations, guided by established categories of liability, rather than basing decisions on their assessment of the requirements of public policy.
Consideration ought to be given to the distinction between harming the claimant and failing to protect the claimant from harm.
Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except as specified to the contrary in legislation.
The court concluded that although the local authority could be liable, the necessary grounds were not satisfied in the present case. In particular, it was held there was no evidence to suggest the council had accepted responsibility for the claimants, statutory obligations being insufficient in themselves to create a duty of care. Furthermore, the council’s failings did not amount to a breach of duty. Consequently, although the family’s case may serve to protect the rights of individuals in similar circumstances, their individual case failed on the facts.
In a further Supreme Court decision this week, a retired British soldier’s appeal against the decision of the Northern Ireland courts that he should be tried by a judge rather than a jury was unanimously rejected – In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26. The case concerns the fatal shooting in 1974 of John Pat Cunningham by soldiers of the Life Guards after the Legacy Investigation Branch concluded Mr Hutchings should face prosecution over the incident. The court held that trial by jury should not be assumed to be the only means of achieving fairness in the criminal justice process. The decision is likely to further fuel the developing controversy surrounding the prosecution of soldiers for historical actions in Northern Ireland.
In the Court of Appeal, judgement was handed down in the case of KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914. KA claimed asylum after describing threats made against his safety by the Taliban due to his father’s service in the Afghan Army. However, the circumstances of his fleeing Afghanistan were rejected by the Upper Tribunal as lacking credibility. Allowing his appeal, McCombe LJ held it would be unsafe to reject the appeal of a vulnerable minor on such grounds when the Respondent and the First Tier Tribunal based their assessment on a flawed interpretation of the test set out in s. 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
In the news this week…
The Prime Minister officially stood down on Friday, remaining only in post until a new Conservative leader is appointed. The first days of what might become a lively campaign to replace her saw former Linklaters associate Dominic Raab suggest Parliament could be prorogued to prevent the House of Commons attempting to thwart a no-deal Brexit, former Foreign Secretary Boris Johnson represented by a QC in the High Court in relation to (now dismissed) charges of misconduct in public office, and the Secretary of State for Environment, Food and Rural Affairs admit to class A drug use two decades ago.
The week also saw Donald Trump undertake a state visit to the United Kingdom, part of which was devoted to remembrance services for the 75th anniversary of the D-day landings. The Peterborough by-election saw Labour narrowly keep the seat vacated after the conviction of Fiona Onasanya, defeating the challenge of the Brexit Party candidate by under 700 votes.
Finally, concerns about the rule of law in the Middle East came to the fore again after the main witness in the case of a Russian businesswoman convicted of embezzlement in Kuwait was jailed for forging documents crucial to the verdict. Maria Marsha Lazareva was previously sentenced to 10 years hard labour by a Kuwaiti court on charges of embezzlement which are widely considered spurious.
Hamad Al-Allayan, the auditor of the Kuwaiti State Audit (Chamber of Accounts) was sentenced this week to six months’ imprisonment by the Kuwaiti Court of Appeal. He was found guilty of forging documents decisive to the conviction of Lazareva.
The Kuwaiti Criminal Court has quashed Lazareva’s initial conviction and set a new trial date for June 9th. However, she remains in detention pending her re-trial. As the mother of a US citizen, her plight has attracted international concern and the interest of prominent Americans, including the brother of former President George W Bush, who was quoted as saying:
“I’d hate to see U.S.-Kuwait relations damaged by this incident. But there are forces within the government that are creating this horrible situation.”
The case joins an increasing number of detentions of western nationals in middle eastern states on charges often considered to be motivated by domestic concerns. These include those of West Hampsted mother Nazanin Zaghari-Ratcliffe and former British Council worker Aras Amiri in Iran, and now released British academic Matthew Hedges in the United Arab Emirates.
On the UKHRB:
Rajkiran Barhey gave a detailed account of the decision in Poole Borough Council v GN and another
Rosalind English reported on Jonathan Sumption’s recent Reith Lectures and reviewed Jamie Metzl’s new book “Hacking Darwin”
Sapan Maini-Thompson discussed the ongoing protests concerning LGBT teaching in a Birmingham School.
The Supreme Court has found that Poole Borough Council did not owe a duty of care to two children, CN and GN, who it failed to re-house, despite the fact that they were suffering abuse from their neighbours. However, the court overruled previous authority and found that in some situations a duty of care might arise.
Factual background
The Claimants, CN and GN, had been placed by the Council in
a house on an estate in Poole with their mother in May 2006. CN was aged 9 and GN
was aged 7. CN has severe mental and physical disabilities.
The family living in the neighbouring property were known by the Council to have engaged in anti-social behaviour persistently. Soon after their arrival, this family began a campaign of harassment and abuse against GN, CN and their mother which lasted for several years. This included vandalism, attacks on the family home, threats of violence, verbal abuse, and physical assaults. All measures, including eviction, anti-social behaviour orders, of sentences of imprisonment, etc. had failed to stop the abuse. Even a Home Office-commissioned independent report criticised the police and of the council’s failure to make adequate use of powers available under anti-social behaviour legislation.
Or “Human Rights and Wrongs”, as Jonathan Sumption’s third lecture is called, in his series on Law’s Expanding Empire, delivered in Edinburgh and broadcast on Radio 4 and BBC World Service.
Human rights are where law and politics meet. It can be an unfriendly meeting…”
Following these strong words, Lord Sumption briskly debunks the ideas of “natural” or “inalienable” human rights, in favour since Blackstone’s time. In principle, there is nothing so fundamental about certain rights that they cannot be overturned by democratic election. The idea of these inalienable human rights was perfectly straightforward in a world where rights were part of God’s law, or in communist societies where these rights were ordained by the ruling party. But in a secular democracy, Sumption asks, what is it that makes rights legitimate? Of course there are rights without which a community cannot function, like the right to be free of force, and the right to participate in fair and regular elections. Any further rights should be conferred by collective choice, and not because because they are thought to be inherent in our humanity, or derived from some higher law. Instead of the mystics and the totalitarians, he invites us instead to consider the 18th century enlightenment philosopher David Hume.
He rejected the whole concept of natural law … You cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.
Rights [continues Sumption] do not exist in a vacuum, They are the creation of law, which is a product of social organisation, and which is therefore necessarily a product of political choice.
The entanglement of law and ethics is always perilous when it involves the threat of prohibition. When Shenzhen scientists announced two years ago that they had edited the genes of twin human babies whilst still in vitro, voices of disapproval reverberated around the globe. Whilst it seems that gene modification of potential human life fills us with fear and loathing nothing has stood in the way of the race to refine this technology. Efforts to predict and restrict genetic engineering seem quaint and outmoded, from the UNESCO 1997 Declaration on the Human Genome and Human Rights, to the Council of Europe’s Convention in the same year to restrict the modification of the genome to therapeutic purposes only. These agreements, as well as the 2015 call by UNESCO for a moratorium on germline modification, are well past their sell by dates.
What is the scope of a school’s duty to accommodate the religion of a parent whose children attend its schools? From September 2020, it will become mandatory for “relationship education” which includes lessons about LGBT relationships to be taught in English primary schools under the Children and Social Work Act 2017. According to a petition by Muslim parents in Birmingham, however, such teaching contradicts the Islamic faith, thereby violating their freedom of religion.
The ongoing protests raise a host of questions about the boundaries between religious rights and the obligation of the state to promote social inclusion through universal and non-discriminatory education.
In this article, it will be argued that the rigorous approach taken by the Canadian courts to this issue should serve as a template for possible future consideration by the English courts and also that uneven standards in the statutory guidance for maintained and independent (including faith) schools undermine the equality duty in the UK.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.
Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.
The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.
Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.
A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD [2019] EWCOP 18
The lesson to be learned from this case is to be careful of the hands into which you may fall, should you become incapacitated and end up in a vegetative or minimally conscious state.
The patient in this case, P, was traumatised by a drug overdose in 2014. Since then she has been tracheotomy dependent and tube-fed. She is vulnerable to fitting, chest infections and other forms of ill-health. She was initially diagnosed as being in a vegetative state which was subsequently revised to that of a minimally conscious state.
At the time of the application she was in a unit specialising in rehabilitation for those suffering from neurological impairment. Staff at the Unit hold strong pro-life views. The CCG, the applicant in this case, was funding that treatment. There was no disagreement between the Official Solicitor, the CCG and the family as to the correct course of action; that Clinically Assisted Nutrition and Hydration (CANH) should be withdrawn. However, given the contrary views expressed by the staff who care for P, the CCG decided to bring this matter before the court. MacDonald J concluded that, whilst the application proceeded unopposed by all parties to it, it was appropriate to deliver a fully reasoned judgment.
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