Category: In the news
22 December 2014 by David Hart KC
Opinion of CJEU, 18 December 2014 – read Opinion
Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.
Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation that the EU
“shall accede to the ECHR”.
Nice and simple then? No, not exactly, when you look at the extremely complex Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.
One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.
The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.
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19 December 2014 by David Hart KC
British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED
Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.
The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.
Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.
As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.
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18 December 2014 by Lauren Godfrey
Unison (No.2), R (on the application of) v The Lord Chancellor – read judgment [2014] EWHC 4198 (Admin)
The Divisional Court (Lord Justice Elias and Mr Justice Foskett) has dismissed Unison’s second-generation attempt to challenge by judicial review the legality of the Employment Tribunal fees system but gave permission to appeal to the Court of Appeal. The “striking” reduction in claims (79 per cent fewer) presented to Employment Tribunals, Lord Justice Elias accepted, was evidence that the system was “extremely onerous” for people in the position of the hypothetical claimants construed by Unison in their legal argument but “not so burdensome as to render the right illusory” (paragraph 53).
Noting the potential infringement of Article 6 rights, Lord Justice Elias was not convinced that the evidence available to the Court surmounted the high threshold set by the European Union case law on effectiveness (paragraphs 23-51; & 60-64); particularly where hypothetical rather than real examples deprived the Lord Chancellor of an opportunity to redress any alleged deficiencies in the scheme (see paragraphs 62-64).
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17 December 2014 by Rosalind English
R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment
The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.
This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful.
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17 December 2014 by David Hart KC
R (o.t.a WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN) v CHARITY COMMISSION, 12 December 2014, Dove J, no transcript yet available, summary on Lawtel (£)
Judicial review is an excellent and flexible remedy, filling the gaps when statutory and other appeals do not provide a remedy for unlawful administrative acts or omissions.
But there is a flip side, well exemplified by this extempore decision refusing permission for a judicial review – save in exceptional circumstances, you can only seek judicial review when there is no other available remedy.
In this case, Dove J decided that the Court had no jurisdiction to seek judicial review of the Charity Commission’s decision to launch an inquiry and make a production order concerning the Jehovah’s Witnesses charity because the Charities Act 2011 provided for appropriate statutory remedies that the charity should pursue first.
The summary gives only the shortest account of the underlying facts, but it appears as if there are two particular congregations of concern being investigated by the Charity Commission.
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15 December 2014 by Rosalind English
An NHS Trust v Child B and Mr and Mrs B [2014] EWHC 3486 (Fam) – read judgment
I posted earlier this year a discussion of Ian McEwan’s pellucid and moving account of the difficulties encountered by judges when steering between the rock of parental faith and the hard place of children’s best interests (The Children Act, 2014).
This judgment, although handed down four months ago, has just been published, and confirms that judges may be resolute, however politely, in the face of parents’ insistence that they know what is best for their children.
Background Facts
The application concerned a very young child (B) who sustained burn injuries in an accident. The clinical team responsible for his care advised that the best practice treatment for his injuries was skin grafting and that there was a significant risk that he would require a blood transfusion . To avoid infection and for the best possible result, skin grafts should be carried out no later than 7 to 10 days from the initial burn. The Court was also told that in the event of a skin graft taking place without the ability to give a blood transfusion, there would be a risk of death as a result of sepsis developing.
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12 December 2014 by Guest Contributor
Businesses, governments and civil society descended on Geneva last week for the 2014 UN Forum on Business and Human Rights, the largest global gathering in the business and human rights field. There were lofty statements of high ambition but the pervasive tone and success of the Forum was more prosaic: nitty-gritty implementation.
It was a conference dedicated to developing and sharing the best practices capable of shifting businesses from showcase philanthropy to real accountability, from vague aspirations to measurable impacts, and from a race to the bottom to a competition to be recognised as world leading. It was a call for real action; as one panel moderator told his coffee-clutching audience early on Day 3: “I want to see dust on everybody’s shoes”.
Implementation of what?
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12 December 2014 by Rosalind English
R (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening) [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment
Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)
This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested.
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11 December 2014 by David Hart KC
R (Haney and others) v. Secretary of State for Justice, 10 December 2014 – read judgment
Indeterminate sentences and the inadequate funding of rehabilitation during them has posed problems since Imprisonment for Public Protection (IPP) sentences hamstrung the system. The courts here and in Strasbourg have been in two minds what to do about cases where prisoners have not received the assistance they ought to have received – and hence are not, by domestic standards, ready for release.
Two solutions have been proposed to date. The House of Lords in R (James) [2009] UKHL 22 decided that this did not amount to a breach of Article 5 of the Convention. When James got to Strasbourg, the ECtHR (2013) 56 EHRR 12 disagreed; continued detention was unlawful.
The Supreme Court found a third way, as we shall see. Another example of our courts’ increasing confidence when confronted with a Strasbourg decision they think to be wrong.
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11 December 2014 by Hannah Noyce
R (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send [2014] EWHC 3997 (Admin) – read judgment
Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.
The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.
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11 December 2014 by Rosalind English
Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-, 5 December 2014 – read judgment
Robert Seabrook QC is on the panel of the IPT and David Manknell of 1 Crown Office acted as Counsel to the Tribunal in this case. They have nothing to do with the writing of this post.
This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character.
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9 December 2014 by Martin Downs
Photo credit: guardian.co.uk
For some reason, this post originally appeared in the name of Colin Yeo. It is not by Colin Yeo, but by Martin Downs. Apologies for that.
The future of civil partnerships is again in the news. In October, Rebecca Steinfeld and Charles Keidan tried to register a Civil Partnership at Chelsea Town Hall but were rebuffed on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. Their lawyer, Louise Whitfield of Deighton Pierce Glynn Solicitors has announced their intention to seek a judicial review and the couple have also started a petition.
Steinfeld and Keidan have rightly identified that CPs provide virtually the same rights and responsibilities as marriage that it is within the gift of government to provide. One of the few differences concerns pension rights and even this will be considered by the Court of Appeal in February 2015.
However, the couple are attracted by civil partnership as a social construct that comes without the historical baggage of patriarchal dominance/subjection of women. They also take aim at the sexist customs that surround it such as “giving the bride away,” virginal white dresses and hen and stag do’s.
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9 December 2014 by David Hart KC
Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment
There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about.
The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.
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4 December 2014 by David Hart KC
Hoon v. United Kingdom, 13 November 2014, ECtHR, read judgment
Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.
In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was contacted by Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”. The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.
Hoon was indeed interested.
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4 December 2014 by Adam Wagner
Dominic Grieve QC was appointed as the Coalition Government’s Attorney General in May 2010. He remained in post until July 2014 when he was sacked. He said he would “happily” have stayed on, but the reality was that he could not support the Conservative Party’s radical plans to reform UK human rights law.
Since then he has become a fierce and impassioned critic of the Tory plans, somewhat surprisingly given his public persona which is otherwise calm and lawyerly. He has produced two detailed, and devastating, critiques: the first in Prospect Magazine and then last night in a lecture at University College London. Both are highly recommended as measured and unarguably correct analyses of the Tory plan.
To my mind, Dominic Grieve QC is a bit of a hero. He has stood up for principle at the expense of his political career. He did not just resign in disgust, he then made it his business to explain to people – and particularly those on the Right – why the Tory plans would be “devastating both for ourselves domestically as it will be for the future of the Convention” (p.24).
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Opinion of CJEU, 18 December 2014 – read Opinion
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