The Round Up: Immigration Appeals, Vaginal Mesh, and Farage and Defamation

Farage

IN THE NEWS THIS WEEK

With election fever well and truly afflicting the exhausted electorate again, Gina Miller, of Article 50 fame, has launched a tactical voting initiative to back candidates who will “commit to keeping the options open for the British people.” The crowd-funding campaign, rousingly named “Do what’s best for Britain!”, reached and surpassed its £135k goal in just 24 hours. It’s not the first initiative of its kind: moreunited.co.uk contributed to the Lib Dem success in the Richmond Park by-election, and has doubled its crowd-funding target after raising more than £50k in the 48 hours since the announcement of the general election. Neither initiative is allied to a particular party: instead, they aim to support individual candidates sympathetic to their values.

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Right to die case allowed to proceed

Conway, R(on the application of) v The Secretary of State for Justice[2017] EWCA Civ 275

The Court of Appeal has overturned the refusal of the Divisional Court to allow a motor neurone disease sufferer to challenge section (1) of the Suicide Act. He may now proceed to seek a declaration under section 4(2) of the Human Rights Act 1998 that the ban on assisted dying is incompatible with the European Convention on Human Rights. The background to this appeal can be found in my post on the decision from the court below, which focussed on the vigorous dissent by Charles J.

Briefly, Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.

The main argument in support of the permission to appeal was that it was self-evident from the division of opinion in the Divisional Court that there would be a realistic prospect of success. Mr Conway’s legal team also argued that the issues raised about Mr Conway and those in a similar position to him were of general public importance and that this was a compelling reason for the appeal to be heard. Continue reading

The Round-Up – chemical weapons and Supreme Court judgments

Chemical weapons

Chemical attacks in the northern Syrian province of Idlib have left at least 80 dead and 100 more injured. It has been reported that in a raid last Tuesday morning Syrian government planes exposed countless civilians in the town of Khan Sheikhun to toxic gas, suspected to be sarin. While Syrian President Bashar al-Assad denies claims that he is the author of these attacks, outrage has erupted across the world, which culminated in US President Donald Trump commencing airstrikes on Syria.

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Scottish law on sexual offences incompatible with human rights

AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2017] UKSC 25 – read judgment 

This week the Supreme Court ruled handed down its judgment on the legality of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009.

Section 39(1)(a) of the 2009 Act allows a person accused of sexual activity with an under-age person to rely on the defence that, at the time, he or she believed that the under-age person was in fact over the age of 16. Section 39(2)(a)(i), however, deprives the accused of this defence where he or she has previously been charged by the police with a ‘relevant sexual offence’. The relevant sexual offences are set out in Schedule 1 of the 2009 Act.

The appellant argued that s.39(2)(a)(i) of the 2009 Act is not compatible with the European Convention on Human Rights (“the Convention”). If a Scottish Act is incompatible with a right under the Convention, in accordance with section 29 of The Scotland Act 1998, it is outwith the competence of the Scottish Parliament and therefore not law. It was submitted that section 39(2)(a)(i) was incompatible with Article 6 (right to a fair trial), Article 8 (right to privacy and family life) and Article 14 (prohibition on discrimination) of the Convention. Continue reading

Rosie Slowe: Article 50 Notice and Implied Conditionality

England Europe

More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.

On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.

That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is indeed irrevocable. Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given. The arguments in favour of revocability are difficult to dispute, finding their basis in the UK constitution, EU Treaties and international law.

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Immigration and Minimum Income Requirements – “significant hardship” caused, but still ECHR compatible

money_1945490cSS (Congo) v Entry Clearance Officer, Nairobi, [2017] UKSC 10 – read judgment. 

The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR. Continue reading