Category: In the news
23 May 2012 by Martin Downs
Mattu v University Hospitals of Coventry and Warwickshire NHS Trust – read judgment
For a government much divided about rights of employees and the Beecroft Report that proposes curtailing them, some relief is provided by this Court of Appeal ruling, a further blow to those who have argued that Article 6 can be deployed against their employers.
The judgment represents the latest round in the saga of Dr Mattu’s dispute with his former employers which commenced with his suspension in 2002 and included an unsuccessful attempt to force the Trust to prevent disciplinary proceedings and then a challenge to his dismissal.The Court unanimously concluded that the procedure by which Dr Mattu was dismissed did not attract the protection of Article 6 as an employer who dismisses with or without the benefit of a formal hearing is not determining the employee’s civil rights. Rather the employer is exercising a contractual power. The disciplinary proceedings of an employer and a decision to dismiss summarily may give rise to civil rights, namely proceedings for unlawful dismissal and unfair dismissal and those concerned with professional and regulatory standards but they do not determine such rights. In those circumstances Article 6 will be engaged before the Courts, Tribunals and Regulatory Panels but not in disciplinary proceedings before an employer.
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22 May 2012 by Isabel McArdle
AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment
Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.
So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.
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22 May 2012 by David Hart KC
DCLG v. Information Commissioner & WR [2012] UKUT
I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.
Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer appealed. There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that. PINS said no; no complex issues arose for which a public inquiry was necessary.
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21 May 2012 by Rosalind English
MM and AO (a child), R(on the application of) v Secretary of state for the Home Department [2012] EWCA Civ 668 (18 May 2012) – read judgment
The Court of Appeal has confirmed that the Secretary of State acted lawfully in not ordering independent inquiry into a 2009 protest at an Immigration Detention Centre.
This interesting case explores the scope of the investigative duty under Article 3 of the Convention and its limited nature when compared to the analogous duty under Article 2, where the victim is no longer around to take action for him or herself. On the facts of this case, where there was no allegation of systemic failings, there was no obligation under Article 3 to arrange such an inquiry and the claim for psychiatric damage by the children who became separated from their parents during the protest was dismissed.
Background
The claimants, an adult and child respectively, had been detained amongst others at a removal centre. In 2009 there as a protest by some of the detainees after which the United Kingdom Borders Agency (UKBA) which ran the centre intervened, attempting amongst other things to remove the children from the fray by gathering them in a classroom. Afterwards, there was a dispute as to the degree of force used during the intervention and the distress caused to the children. An investigation by UKBA’s own Professional Standards Unit concluded that the intervention had been necessary. However, it was claimants’ case that an independent investigation was required to comply with the procedural obligations under the prohibition of inhuman and degrading treatment under Article 3. When dealing with a mass protest involved careful planning and execution, the claimants submitted that it was particularly important that lessons be learned by the state from events as serious as these.
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21 May 2012 by Adam Wagner
Angus McCullough QC and Jeremy Johnson QC, Special Advocates at the JCHR
It appears that the Government has climbed down, in part, from some of its controversial secret justice proposals. According to the Telegraph, the Justice and Security Bill, which will be published this week, will include a provision whereby judges, not the Government, has the final say on whether a Closed Material Procedure (CMP) is used. Moreover, CMPs will be restricted to “national security cases” rather than any case “in the public interest”.
It “remains uncertain”, however, “whether Mr Clarke will exclude inquests from being subject to the secret hearings.” Junior Justice Minister Jonathan Djanogly caused a stir last week when he appeared prematurely to announce that particular concession in Parliament, but quickly stepped back from his statement. In view of the likely legislative bartering which will occur as the bill progresses through Parliament, perhaps this is a concession which was meant to be left until later in the process.
We will analyse the bill when it is published later this week. But as this important debate resurfaces and the manoeuvring continues, it is important to keep two things in mind.
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20 May 2012 by Rosalind English
The recent standoff between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.
Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.
Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance on judicial activism, particularly in the foreign policy sphere. I don’t agree. In his FA Mann Lecture last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light.
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20 May 2012 by Rachit Buch
As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:
- Create a test of “serious harm” for statements to be considered defamatory.
- Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
- Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
- Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.
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19 May 2012 by Alasdair Henderson
Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – read judgment
In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.
Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.
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17 May 2012 by Rosalind English
Humphreys (FC) (Appellant) v The Commissioners for Her Majesty’s Revenue and Customs (Respondent) [2012] UKSC 18 On appeal from the Court of Appeal [2010] EWCA Civ 56 – read judgment
A person’s entitlement to Child Tax Credit (CTC) is a “possession” for the purposes of article 1 of the First Protocol to the European Convention on Human Rights.
It has been accepted for some time that the rule discriminates indirectly against fathers, because experience shows that they are far more likely than mothers to be looking after the child for the smaller number of days in the week. The question before the Supreme Court in this case was whether this discrimination is justified or whether the refusal of CTC to a father who looks after his children for three days a week is incompatible with his Convention rights. The Court ruled that in the light of the policy behind CTC, the reduction of child poverty, the discrimination was justified.
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16 May 2012 by Rosalind English
Mcgrath v Dawkins, Amazon and others [2012] EWHC B3 (QB) -read judgment
In an interesting ruling on a strike-out action against a libel claim, a High Court judge has delineated the scope for defamation in blog posts and discussion threads where the audience is small and the libel limited.
Background
The claimant, C, is the author of a book entitled “The Attempted Murder of God: Hidden Science You Really Need To Know”. Published at the same time on the same general topic, but taking the opposite side, was “The Grand Design: New Answers to the Ultimate Questions of Life” by the very well-known scientist Professor Stephen Hawking and Leonard Mlodinow. Both books were available for purchase through the Amazon UK website run by the third defendant.
Amazon includes an online public-access facility, through which any member of the public may publish their own review of a book for sale on the site, and others may post comments on that review, or on previous comments, so creating a “thread” which may be read by any internet user worldwide. Since Prof. Hawking’s book was likely to attract far more interest among readers than C’s, he decided to raise the profile of his own work. In September 2010 he posted a purported review of the Hawking book, signed by “Scrooby”, which began by giving the details of his own book, and then went on to claim that this book “answered all doubts raised in [Hawking’s] book” and was an “antidote to this misguided book”. As the judgment continues
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15 May 2012 by Adam Wagner
The Grand Chamber of the European Court of Human Rights is to deliver its latest, hotly anticipated, decision on prisoner votes next Tuesday 22 May. The case is Scoppola v. Italy (n° 3). The Court’s press release is here.
The UK intervened in the case, with the Attorney General Dominic Grieve QC himself travelling to Strasbourg to explain the UK’s views (including, classily, some submissions in French). As a result, the UK was granted an extension of time to comply with the decision in the original prisoner votes case, Hirst No. 2 and the more recent Greens and MT. The UK will therefore have 6 months from 22 May 2012 to introduce a Bill to Parliament (see this correspondence between the UK and the Court) to make the UK voting system compliant with the European Convention on Human Rights. Which is to say, it will have until 22 November 2012. Or is it 23 November?
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14 May 2012 by Rosalind English
South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment
South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.
South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law (the ICC Act) the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.
Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and Slobodan Milošević.
As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe –
One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.
Now the tables are turning, and this universal jurisdiction is not being universally welcomed.
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9 May 2012 by Guest Contributor
In the UK there are at present no rights expressly cast in terms applicable to climate change, nor have our traditional human rights been extensively interpreted as covering climate change consequences. As David Hart QC identifies in his blog, Is climate change a human rights issue?, human rights principles, to be useful for climate change litigators, have to have some democratic backing somewhere. So is there any hope, in the near future at least, of formally or even informally establishing a link between climate change and human rights in the UK? Is human rights based climate change litigation as ‘radical’ as David Hart suggests?
Consider, for example, the situation where the avoidance of further climate change damage was possible through adequate mitigation and/or adaptation, but where adaptation measures were not implemented due to financial or technical constraints. Leaving aside the issue of whether the State would be liable for a moment, could existing human rights be engaged in this situation?
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9 May 2012 by Adam Wagner
So now we know. Sort of. Five judges of the European Court of Human Rights have ruled that Abu Qatada’s case will not be heard on appeal by the court’s Grand Chamber, despite the appeal application being lodged on time.
The Court’s somewhat scanty press release reveals little:
The Panel found that the request had been submitted within the three month time-limit for such requests. However, it considered that the request should be refused.
The post-match report is as follows. Joshua Rozenberg got it right in The Guardian, Carl Gardner won the day with his excellent series of posts (although his prediction that the GC would want to hear the case was wrong) and I hedged my bets on the timing point in my latest post so I would have got it right – and wrong – either way. Those who saw me interviewed on the BBC News earlier today will not have seen the part they edited out, which was me wrongly predicting, for similar reasons to Carl Gardner, that the Grand Chamber would want to hear the appeal if the time limit issue was overcome.
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9 May 2012 by Rosalind English
The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.
Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.
According to the Human Genetics Commission (HGC)
The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011)
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Mattu v University Hospitals of Coventry and Warwickshire NHS Trust – read judgment 
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