Category: In the news
5 June 2013 by Adam Wagner
Two quick things.
The first is that yesterday was the final day for responses to the Government’s latest Legal Aid reforms consultation. As I have done in the past, I will be collating some of the key organisational responses. If you want yours included in the roundup, please email me if you haven’t already. Just as a taster, why not dip into the relatively short and sweet Bingham Centre response, which is excellent, as well as the very long but solid-looking Bar Council response.
If you couldn’t make the protest yesterday, why not listen to three speeches by leading barristers Dinah Rose QC, Michael Fordham QC (pictured*) and Geoffrey Robertson QC. Fordham’s rabble rousing avocado metaphor (yes, avocado) is particularly worth devoting five minutes to. Well done to Carl Gardner along with his up and coming sound engineer Joshua Rosenberg for recording and publishing.
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5 June 2013 by Rosalind English
Hill, R(on the application of) v Institute of Chartered Accountants of England and Wales [2013] EWCA Civ 555 – read judgment
The concept of fairness embodied in the different strands of natural justice have to be seen as flexible and as not requiring the courts to lay down over rigid rules, so that where it had been agreed that a tribunal member could be temporarily absent for part of the hearing, there had been no breach of the rules of natural justice.
The appellant chartered accountant had been found guilty of unprofessional conduct by the respondent Institute. He appealed against the Administrative Court’s refusal of his application for judicial review of the Institute’s decision ([2012] EWHC 1731 (QB)). He maintained that there had been a breach of natural justice in the proceedings because one of the tribunal members had missed a large part of the hearing, and that all proceedings of that tribunal after one of its members left were therefore a nullity, including the decision of the tribunal that the charge was proved. Mr Hill contended in particular that the breach of natural justice that “he who decides must hear” had been so grave that the tribunal had acted without jurisdiction, and acting without jurisdiction could not be consented to, and that any consent had to be from the appellant personally.
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4 June 2013 by Guest Contributor
The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.
It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously. He would, no doubt, be surprised at the evolution of the Convention into the system it is today. But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.
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3 June 2013 by Adam Wagner
With no apologies, I would like shamelessly to promote my chambers colleague Isabel McArdle and Daniel K. Sokol of 12 KBW’s splendid new pupillage guide, Pupillage Inside Out. At £14.95 it is a steal – order now here (wig not included).
Isabel is a regular contributor to UKHRB and Daniel has contributed a number of times in the past. Below are some more details, including how you can get on the guest list for the glamorous* launch party:
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2 June 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular chocolate selection box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Much of the news this week relating to the media: tweeting, printing and everything in between.Chris Grayling’s thriftiness also maintains the interests of commentators, academics and lawyers; and cases involving the freedom of religion remain at the forefront of the ECtHR as the Strasbourg Court reforms.
by Daniel Isenberg
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26 May 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular tasting menu of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
With an upcoming anniversary, the role of the Lord Chancellor (and, of course, his reforms) has been under scrutiny. Further, the new Defamation Act is looked at in more detail, civil liberties are abused and war crimes resurface in a number of ways. And, the gay marriage bill continues on its tumultuous journey to the House of Lords.
by Sarina Kidd
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24 May 2013 by Guest Contributor
RE F (CHILDREN) 14 May 2013, Court of Appeal – extempore so currently only available as a Lawtel summary (£)
A topical case, this, given legal aid cutbacks. It concerns the ability of unrepresented litigants to choose those to help them out as advocates in court. Not an unconstrained right, as this case demonstrates. The High Court ruled that a judge had been entitled to refuse an application for a particular person to act as a McKenzie friend despite that individual not being present in court at the time of the application. The Court of Appeal upheld that decision.
This application for permission to appeal resulted from the refusal by a family judge to permit a person to act as a McKenzie friend within care proceedings.
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22 May 2013 by Guest Contributor
Much of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”
What loophole?
Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.
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22 May 2013 by Alasdair Henderson
UK Uncut Legal Action Ltd v. (1) Commissioners of Her Majesty’s Revenue and Customs (HMRC) and (2) Goldman Sachs – read judgment
Tax avoidance has hit the news again, with Apple currently facing questions from the US Senate about its exploitation of Irish company law loopholes and David Cameron writing to offshore tax havens to push for more transparency over tax rules. As it happens, the High Court has just handed down a ruling in a case which raises many of the same issues.
The campaign group UK Uncut brought a judicial review claim against HMRC. They argued that it was unlawful for HMRC to reach a confidential settlement in 2010 with the investment bank Goldman Sachs over a multi-million pound unpaid tax bill arising out of a failed tax avoidance scheme. Mr Justice Nicol held that HMRC’s decision was not unlawful, but criticised the actions of HMRC officials and HMRC have acknowledged that the manner in which the settlement was agreed involved several mistakes.
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21 May 2013 by Rosalind English
Waller v James [2013] NSWSC 497 (6 May 2013) – read judgment
So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate.
Since 1999 (MacFarlane v Tayside Health Board) such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust). Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform? This Australian case gives some indication of the way the courts may approach such questions.
Background facts
Keeden Waller was conceived by IVF using the Wallers’ own gametes. There was a fifty percent chance that he would inherit from his father a blood disorder called antithrombin deficiency (ATD), a condition that affects the body’s normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves.
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20 May 2013 by Adam Wagner
The Marriage (Same Sex Couples) Bill is back before Parliament today for the “Report Stage”. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.
I have written a new article for the New Statesman on some of the myths and realities surrounding the debate – you can read it here. It’s all a bit complicated, as you might expect.
Our previous coverage is linked to below. Hopefully, party politics won’t end up derailing this important bill. As the New Yorker recently predicted:
One day, not long from now, it will be hard to remember what worried people so much about gay and lesbian couples committing themselves to marriage.
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19 May 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular legal melting pot of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Not the right to life, but the right to die dominates the human rights headlines this week, with separate litigation in Strasbourg and the Strand. Commentary abounds on not just the ECHR’s role in domestic law, but how proposed reforms comply with EU law, particularly on the immigration front. Finally, a wide range of human rights approaches to much of the coalition’s plans for this Parliament.
by Daniel Isenberg
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17 May 2013 by Jim Duffy
Updated, 19 May 2013 | Last night, lawyers, academics, NGOs and even the President of the Supreme Court gathered in a basement conference room in central London. Their purpose was to discuss the UK “without Convention Rights”, a possible future that some might view as post-apocalyptic, and others as utopia. Either way, given recent political developments, the event could not, in the words of the Chair, Lord Dyson, “be more timely or topical.”
The seminar was hosted by city law firm Freshfields Bruckhaus Deringer LLP and presented by the Human Rights Lawyers Association and the Bingham Centre for the Rule of Law. Lord Dyson, who is the Master of the Rolls (the second most senior judge in England and Wales), introduced three speakers:
- David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation since 2011;
- Professor András Sajó, the Hungarian Judge at the European Court of Human Rights; and
- Professor Hugh Corder, Professor of Public Law at the University of Cape Town.
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17 May 2013 by Rosalind English
R (on the application of) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2013] EWHC 1183 (Admin) – read judgment
The power of the ruling body to alter the remuneration of the judicial “Seneschal” was open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention.
The claimants last challenged the independence of Sark’s governing and judicial bodies in successful judicial review proceedings in 2009.
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16 May 2013 by Guest Contributor
One of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.
In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?
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