The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.
Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.
Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill.
Montgomery v Lanarkshire affirmed a transition from patients as passive receivers of care to active consumers by making the collaborative patient-doctor relationship a legally enforceable right. However, as yet patients are not expected to share responsibility for a negative outcome. Medical paternalism may now be dead but judicial paternalism appears to be alive and well. However, contributory negligence is a necessary counter-weight in this balance and it must urgently be applied to restore equilibrium.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
Lawyers are seeking to refer the Ashers ‘gay cake’ case to the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.
Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve. Continue reading →
In a case that was described as “the first such case to have come on for hearing before this court” and one that shares many similarities with the tabloid-grabbing story of Shamima Begum (discussed on the Blog here), Mr Justice Pepperall refused permission to bring judicial review proceedings on behalf of an Islamic State combatant whose citizenship had been revoked by the Home Secretary.
A father (Mr Islam) brought judicial review proceedings on behalf of his son (Ashraf) challenging the Home Secretary’s decision to revoke Ashraf’s British citizenship because of his involvement with the Islamic State / Islamic State of Iraq and the Levant (referred to in the judgment as ISIL).
Ashraf was born in London and is a British citizen by birth. He has lived and studied in both Bangladesh and the United Kingdom throughout his life and was studying in Dhaka at the time of his disappearance in April 2015. Shortly after his disappearance, Mr Islam learned that his son had crossed into Syria and joined ISIL.
On Friday, Prime Minister Boris Johnson
set down his stance on law and order in three major announcements, fulfilling
his promise to ‘come down hard on crime’. This follows the announcement of
20,000 ‘extra’ police officers a few weeks ago.
Firstly, Home Secretary Priti Patel announced
enhanced stop-and-search powers for police officers under s.60 Criminal Justice
and Public Order Act, on the basis of a ‘knife-crime epidemic’. Under the new rules,
an officer need only believe that a violent incident ‘may occur’, not that it ‘will’,
and a lower level of authorisation will be required to exercise the power.
Secondly and thirdly, Mr Johnson has
promised penal reforms. The Ministry of Justice has allocated
£2.5bn to create ‘modern, efficient prisons’, including 10,000 new prison
places. Alongside this, Mr Johnson has announced a sentencing review, by which
he hopes to increase sentences for violent and sexual offenders, and reduce the
use of ‘early release’ on licence – currently available to most offenders after
they served half of their sentence, under the Criminal Justice Act 2003.
The resources of this crackdown are
welcome, especially with an extra £85m for the chronically underfunded CPS. However,
the approach is controversial. Stop-and-search in particular has been heavily
criticised in the past. Some say that it is ineffective – a study released by
the Home Office in 2016 found that enhanced stop-and-search had not decreased crime
when used in key London boroughs. Others say that the policy is discriminatory
in its application, and worsens the relationship between the public and the
police, drawing links to the 2011 London riots.
The review of the Prevent counter-terrorism initiative is expected to begin today, following the appointment of the independent reviewer. However, the process of appointing the reviewer has been criticised for its opacity – Ed Davey MP has spoken of a ‘whitewash’, while Liberty director Martha Spurrier has suggested that the government are ‘[shielding] Prevent from the scrutiny it desperately needs’.
In further unwelcome news, a report found that
a chartered deportation flight lacked ‘common decency’ towards passengers. Passengers
were subjected to excessive restraint (up to 14 hours at a time); not allowed
appropriate privacy when using the toilet; not appropriately supervised; and
subject to long delays. This was followed by revelations that the Home Office
used restraint against deportees in 447 cases between April 2018 and March
reported by Guardian.
Two recent cases have important consequences for regulated professionals who fail to participate in regulatory hearings. In Kuzmin v. GMC  EWHC 2129 (Admin) the issue was whether a tribunal can draw adverse inferences if a doctor declines to give evidence. Sanusi v. GMC  EWCA Civ 1172 concerned the tribunal’s duty of procedural fairness where a professional fails to attend the hearing at all.
Kuzmin v. GMC
The Claimant was a GP who faced an allegation of dishonesty. It was alleged that he had failed (dishonestly) to draw his employer’s attention to conditions imposed by the Interim Orders Tribunal. The doctor failed in his half-time submission of no case to answer. The doctor then indicated that he would not be giving any evidence and applied to withdraw his witness statement. The GMC sought a preliminary ruling that, as a matter of principle, the Tribunal had the power to draw adverse inferences in such circumstances. The Tribunal agreed, whereupon the Claimant sought an adjournment and applied for judicial review.
Sir Andrew McFarlane upheld Keehan J’s decision to disclose the parents’ initial statement and position statement to the police following the initial interim care hearing.
In family proceedings parents are advised that their evidence is confidential to those proceedings. They are encouraged to be open and frank and to understand that their children’s interests are the Court’s main concern.
But something seems to be eroding these principles, a trend set since the case of Re H (Children)  EWCA.
The Court of appeal approved the test from Re C ( see below) and gave it the “fit for purpose” badge. The decision should be seen in the context of this being a police terrorism enquiry.
The case involved two children aged 2 and 3, born in Syria to parents who were UK Citizens. The parents had travelled to Syria in 2014 against FCO advice, and met there. The family came to the attention of the UK authorities in November 2018 when they were in a detention centre in Turkey, intending to travel to the UK. The Home Secretary made a Temporary Exclusion order against the father. The family returned to the UK in January 2019. The parents were arrested under S. 41 of the Terrorism Act 2000, interviewed and subsequently granted bail. The children were placed in foster care initially under police protection. On 11 January a hearing took place for an application for interim care orders. The threshold was pleaded on the basis of the harm the children were likely to have been exposed to whilst in Syria. The parents did not contest the application, with an interim care plan for placement with grandparents.
On 1 February the police investigating potential criminal activity by the parents made an application to the Family Court for disclosure of the parents’ witness and Position statements. The application was heard by Keehan J on the 8th April, who granted disclosure to the police.
New President of the Supreme Court Lord Reed: Credit The Guardian.
In the week after the appointment of Lord Reed as the new President of the Supreme Court, the final week of July brought with it the end of the legal term and a flurry of judgements in the senior courts.
In the Supreme Court, the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38 (29 July 2019) gave the court the opportunity to examine the principle of open justice, in particular how much of the written material made available to the court ought to be accessible by those not directly party to proceedings. The case came about after an asbestos victim support group, not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order under the common law and the provisions of CPR rule 5.4C. The Media Lawyers Association intervened, advancing arguments based on the importance of media reporting to maintaining open justice, and the reliance such reporters have on access to documents subsequent to the conclusion of proceedings. In deciding to remit the matter back to the High Court, the court provided a good summary of the principles concerning open justice laid down in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) EWCA Civ 420;  QB 618.
As invidual consumers we are constantly exhorted to separate the goods and substances we want to get rid of into “rubbish” destined for landfill or items for recycling. Clearly we have to pay attention to this to avoid material going into landfill that could be recycled or turned into energy, but not only that; we need to be aware of the cost of goods being manufactured that never see the light of day at all, because by virtue of being mixed by less pristine goods, they count as waste, with all the consequences that entails.
The case should raise alarm bells. When we return an item against a refund of the purchase price we do not think we are discarding it. The CJEU ruling turned on the application of Article 3(1) of the Waste Directive 2008/98/EC, which provides that
‘“waste” means any substance or object which the holder discards or intends or is required to discard’.
Individual consumers are clearly not liable under waste legislation for returning goods. But the concept of waste forms the basis of a criminal penalty for possession in EU member states. So once those items reach the retailer the situation changes, because it may or may not become “waste” in their hands.
To celebrate reaching 200,000 listens, and in the event that any of our listeners wish to keep their grey matter ticking over during the heatwave/whilst sipping poolside pina coladas, we have prepared a Summer “Greatest Hits” playlist of our most popular episodes of 2019 so far. We hope you enjoy it, and wish all of our listeners a relaxing summer break.
A veritable powerhouse panel respond to Lord Sumption’s 2019 Reith lectures, as part of the Constitutional and Administrative Bar Association’s summer conference featuring Lord Dyson, Sir Stephen Laws, Professor Vernon Bogdanor, Professor Meg Russell, Lord Falconer and Chaired by Mrs Justice Thornton. This episode is followed by a conversation between Lord Sumption and Lord Justice Singh, responding to the panel. Enjoy!
2. Consent and Causation with Robert Kellar QC (Episode 70)
Emma-Louise Fenelon talks to Robert Kellar about consent and causation, discussing the development of the law since Chester v Afshar through to Khan v MNX.
Are there principles that trump democracy? This was one of a number of profound philosophical and legal questions addressed by former UK Supreme Court Justice Jonathan Sumption in his recent and controversial Reith Lectures, which addressed subjects such as law’s expanding empire, the challenges posed by human rights, and the advantage of an unwritten constitution. For a flavour of the resulting debate arising from these Reith Lectures, I highly recommend Helena Kennedy QC’s response in Prospect Magazine, available here.
The Constitutional and Administrative Law Bar Association (ALBA) recently hosted its annual summer law conference, and one of the many illustrious panels it hosted responded to these Reith Lectures.
We are enormously grateful to the Chair and Committee of ALBA, and to the participants, for enabling us to record these sessions, which are available on Law Pod UK below.
In rejecting the claim of Just for Kids Law, Mr Justice Supperstone affirmed that the legal framework for deploying juvenile covert human intelligence sources (JCHIS) was lawful and adequately safeguarded the child’s welfare.
In these conjoined appeals the Court of Appeal (Sir Terence Etherton MR, Irwin and Coulson LJJ.) have taken the opportunity to deal with a number of issues relating to the reasonableness and proportionality of costs in PI and Clinical negligence cases and the proper approach to the assessment of those costs.
The case is important because it considers and explains the unique position of ATE insurance premiums in clinical negligence cases. In clinical negligence it is almost always necessary for an ATE insurance policy to be obtained by a Claimant to insure against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation. Specifically, the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (no.2) Regulations SI 2013/739, provide (by way of exception to the general rule in s.46 LASPO 2012) that such premium (insofar as it relates to the risk of incurring liability to pay of expert reports relating to liability or causation in respect of clinical negligence in connection with the proceedings) may be recovered. Brooke LJ had stressed in Rogers v. Merthyr Tydfil County Borough Council  EWCA Civ 1134 the availability of such ATE insurance and the recoverability of the relevant premium, is an important means by which access to justice continues to be provided in clinical negligence cases. It was perhaps therefore unsurprising that the present Court of Appeal began their analysis of the issues in the instant case by saying:
Access to Justice must therefore be the starting point for any debate about the recoverability of ATE insurance premiums in any dispute about costs.
Outgoing Secretary of State for Justice David Gauke. Credit: The Guardian.
The week ahead will, barring some extreme political drama, give us a new Prime Minister, and with it, the inevitable cabinet reshuffle. Some ministers have already made clear they believe they are unlikely to remain in post after the new PM’s appointment on Wednesday, in particular the Chancellor Phillip Hammond, and the Secretary of State for Justice David Gauke.
Whoever takes over at the Ministry of Justice will have a significant inbox. Cuts to legal aid were brought to the fore this week after it emerged a relative of those killed in the 2017 terrorist attacks at London Bridge was represented pro-bono by lawyers from international corporate law firm Hogan Lovells (see The Independent here). Mr Gauke used his forthcoming departure from post to propose scrapping short custodial sentences in a bid to reduce re-offending rates. However, the incoming Lord Chancellor will still be considerably better off than their new boss, for whom the “to do” list includes getting an oil tanker back from Iran and concluding Brexit.
In the courts, it was a busy week for human rights observers in the Court of Appeal. The court rejected an appeal bought by a Pakistani gentleman against the decision of the Upper Tribunal to deport him after he was imprisoned for manslaughter – MA (Pakistan) v Secretary of State for the Home Department  EWCA Civ 1252. After his conviction, the Secretary of State had written to him and advised that the department would not, at that time, seek to deport him. The appellant had argued, amongst other grounds of appeal, that this had given rise to a legitimate expectation that he would be allowed to remain in the country, subject to him not being brought to the authorities’ adverse notice. All grounds were rejected by the court, including that deportation would infringe his Article 8 rights.
In other cases…
MAB (Iraq) v The Secretary of State for the Home Department  EWCA Civ 1253 – An Iraqi doctor who worked for Saddam Hussein’s military intelligence agency succeeded in his appeal against the conclusions of the First Tier Tribunal that he was excluded from protection by the Refugee Convention by virtue of Article 1F of that convention. Article 1F disqualifies from the provisions of the Convention those considered to have committed war crimes or crimes against humanity. The court had heard evidence that the appellant, in his medical role, had provided treatment to torture victims and in doing so had facilitated their ongoing torture by the security services. In granting his appeal, the court held that the consequences of Article 1F required its application to be undertaken with caution, involving “a close examination of the facts” and “a carefully reasoned decision as to precisely why the person is excluded from protection under the Convention”. The First Tier Tribunal had failed to perform a sufficiently “detailed and individualised examination of the facts” to support the conclusion arrived at of the appellant’s complicity in human rights abuses.
An application to appeal brought by displaced inhabitants of the Chagos Islands succeeded on some of the grounds advanced – Hoareau & Anor v The Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1254 . The Court held that the recently published advisory opinion of the International Court of Justice, ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’, contained arguments with a real prospect of success which ought to be heard. The appellants also succeeded in contesting the approach taken by the Divisional Court to the appropriate degree of intensity of review of the Foreign Office’s decision making in the matter, and successfully challenged whether or not Ministers were mislead about the basis on which the quantum of existing compensation was arrived at.
ASK, R (On the Application Of) v The Secretary of State for the Home Department  EWCA Civ 1239 – In a lengthy judgement, the Court gave a detailed examination of the powers of the Home Secretary to detain those suffering from mental health conditions prior to their removal from country. The individuals concerned submitted that by virtue of their diagnosis they were either unfit to be removed and/or be detained in an immigration removal centre, or lacked the mental capacity to challenge their detention. The appeals failed on grounds concerning alleged breaches of Articles 3 and 8 of the ECHR and the application of applicable immigration policy. However, the appellants succeeded in respect of claims for damages brought under the Equality Act 2010.
The long-term partner of a senior RAF officer succeeded in her appeal against the decision of the Upper Tribunal that her claim for benefits under the Armed Forces (Compensation Scheme) Order 2011 be disallowed because she remained married to another man, notwithstanding her long term committed relationship with the deceased – Langford v The Secretary of State for Defence  EWCA Civ 1271. The appellant successfully relied upon Article 14 of the European Convention on Human Rights and the recent decision in Re Brewster to show that a person in an exclusive relationship with a scheme member who would otherwise qualify for the benefit could not be excluded simply by reason of having failed to secure the formality of divorce. The court held that to do so would be discriminatory.
In other news, the Ministry of Justice reduced the discount rate on compensation in personal injury cases from -0.75% to -0.25%. The continuation of a negative rate surprised many, particularly defendants and insurers.
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: The Guardian
The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.
The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.
Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.
The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.
Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries. Continue reading →
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