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No finding of discrimination for British Gurkha pension scheme

Joanna-Lumley-and-Gurkha--003British Gurkha Welfare Society and others v. The United Kingdom, Application no. 44818/11 – read the judgment here

The Court has rejected claims that the cut-off scheme for British Gurkha pensions was in violation of Article 14 in conjunction with Article 1 of Protocol 1, but leaves open space for future proceedings.

Background

The Gurkha have a long and storied history within the British Army. Originally serving in the (British) Indian Army, Gurkha regiments have remained within the British armed forces since 1815. More than 200,000 Gurkha soldiers fought in the two world wars, and in the past fifty years they have served in Hong Kong, Malaysia, Borneo, Cyprus, the Falklands, Kosovo, Iraq and Afghanistan.

Today these soldiers form the Brigade of Gurkhas, an administrative entity that ensures that Gurkha units are able to be integrated into the British Army. Since July 1997 the Brigade’s home base has been in the United Kingdom, due to the completion that year of the handover of Hong Kong – its previous home base – to China.

In October 2004 the Immigration Rules were changed to permit Gurkha soldiers who retired on or after 1 July 1997 with at least four years’ service to apply for settlement in the United Kingdom. Approximately 90 per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the UK with their qualifying dependants. A further amendment was introduced in May 2009, allowing former Gurkhas who had served in the British Army for at least four years to settle permanently in the UK. Approximately thirty-five per cent of those eligible have since applied for resettlement. Continue reading →

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Arguments in the referendum challenge now available

OLYMPUS DIGITAL CAMERA

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government 

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.

Citizens’ Rights

People’s Challenge

Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.

Government

Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.

In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.

Devolution

People’s Challenge

The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.

Government

The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.

Concluding statements

People’s Challenge

If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.

Government

It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.

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No more human rights? Wait. No more lawyers??

415h7k2lel-_sx329_bo1204203200_Not only is God dead, says Israeli professor Yuval Noah Harari, but humanism is on its way out, along with its paraphernalia of human rights instruments and lawyers for their implementation and enforcement. Whilst they and we argue about equality, racism, feminism, discrimination and all the other shibboleths of the humanist era, silicon-based algorithms are quietly taking over the world.

His new book, Homo Deus, is the sequel to Homo Sapiens, reviewed on the UKHRB last year. Sapiens was “a brief history of mankind”, encompassing some seventy thousand years. Homo Deus the future of humankind and whether we are going to survive in our present form, not even for another a thousand years, but for a mere 200 years, given the rise of huge new forces of technology, of data, and of the potential of permissive rather than merely preventative medicine.

We are suddenly showing unprecedented interest in the fate of so-called lower life forms, perhaps because we are about to become one.

Harari’s message in Sapiens was that the success of the human animal rests on one phenomenon: our ability to create fictions, spread them about, believe in them, and then cooperate on an unprecedented scale.  These fictions include not only gods, but other ideas we think fundamental to life, such as money, human rights, states and institutions. In Homo Deus he investigates what happens when these mythologies meet the god-like technologies we have created in modern times.

In particular, he scrutinises the rise and current hold of humanism, which he regards as no more secure than the religions it replaced. Humanism is based on the notion of individuality and the fundamental tenet that each and everybody’s feelings and experiences are of equal value, by virtue of being human. Humanism cannot continue as a credible thesis if the concept of individuality is constantly undermined by scientific discoveries, such as the split brain, and pre-conscious brain activity that shows that decisions are not made as a result of conscious will (see the sections on Gazzaniga’s and Kahneman’s experiments in Chapter 8 “The Time Bomb in the Laboratory”).

…once biologists concluded that organisms are algorithms, they dismantled the wall between the organic and inorganic, turned the computer revolution from a purely mechanical affair into a biological cataclysm, and shifted authority from individual networks to networked algorithms.

… The individual will not be crushed by Big Brother; it will disintegrate from within. Today corporations and governments pay homage to my individuality, and promise to provide medicine, education and entertainment customised to my unique needs and wishes. But in order to do so, corporations and governments first need to break me up into biochemical subsystems, monitor these subsystems with ubiquitous sensors and decipher their working with powerful algorithms. In the process, the individual will transpire to be nothing but a religious fantasy.

Continue reading →

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Breakfast Briefing – Is Crowdfunding The Future? The Judicial Funding Revolution – limited places left

With Legal Aid good as dead, PCOs turned into CCOs, and judgement on Wednesday 28th September in the record-breaking Crowdfunding JR as junior doctors against the Secretary of State, come for an interactive and lively breakfast debate about the future for JR funding and costs protection now looks like.

Chair  Jeremy Hyam QC

Speakers  Isabel McArdle, Michael Deacon

Breakfast  Bagels and pastries, hot and cold drinks

Takeaways  Handouts and new legal insights

When  Wednesday 28th September 2016 8.30 am – 10 am

Where Bride Foundation, Bride Lane, Fleet St, London EC4Y 8EQ

RSVP  Events@1cor.com for solicitors and students

Contact  Rebecca King, Marketing Manager, 0207 797 7500

 

breakfast-briefing-flyer-pdf

 

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Privacy of a doctor under GMC investigation clashes with that of his patient

privacy-policy-fullDr DB v. General Medical Council [2016] EWHC 2331 (QB), 23 September 2016, Soole J – read judgment

An interesting three-way privacy fight between a GP, a patient who had complained about his treatment by the GP, and the GMC who had investigated that complaint. The prize in that fight was a copy of a medical report obtained by the GMC from an independent expert, which had concluded that the GP’s care had fallen below “but not seriously below” the expected standard.

The patient had wanted a copy of the report; all he had seen so far was a one-page summary. His motive was to investigate a possible claim for clinical negligence, arising out of the delayed diagnosis of his bladder cancer. The GP refused consent. 

The GMC then concluded it should disclose the report to the patient. And the GP brought these proceedings to stop disclosure. Continue reading →

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Xenakis the fisherman and the tangle of EU law

Dead Southern bluefin tuna (Thunnus maccoyii) caught in a tuna pen, Port Lincoln, South Australia.

Understanding Standing: Post 1 of 3

Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.

Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies  The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.  

Introduction   

Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.

The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.

  1. The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
  2. The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
  3. The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.

Continue reading →

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High Court calls for change in bereavement law to benefit cohabitees

1152277_90340870Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) – read judgment

Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.

The issues before the Court

The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners. Continue reading →