Category: In the news
8 October 2018 by Guest Contributor
Today it was announced that the Intergovernmental Panel on Climate Change (IPCC) has published a special report on the impact of climate change which warns that the world is wildly off track from the target of keeping the rise in global temperature under control.
In this guest article, Dr Linda Roland Danil argues that a new international agreement is needed to prevent us from sleepwalking into serious trouble.
In 2015, 196 Parties came together and agreed to the Paris Agreement, under which they pledged to limit global warming to 1.5 to 2 degrees Celsius above pre-industrial levels. But the problem is that the Paris Agreement does not contain quantified, legally-binding obligations for the reduction of emissions. It also has no enforcement mechanism, such as an international tribunal. Instead, countries prepare their own national emissions targets – so-called Intended Nationally Determined Contributions or INDC’s – and report to each other on how well they are doing to implement their targets.
The Paris Agreement was undoubtedly an achievement in the realm of international climate negotiations, and although the Trump administration has notoriously recently pledged to withdraw from the Agreement, a withdrawal which cannot take effect until late 2020. 196 Parties, at different stages of economic development, and within a conflicting political context, all agreed on the importance of tackling the threat of anthropogenic global warming.
However, the Paris Agreement’s targets are simply not being met, with the national pledges by the signatory Parties having recently been argued to bring about only a third of the reduction of emissions by 2030 that is required.
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8 October 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.
Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.
Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.
The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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4 October 2018 by Rosalind English
Help Refugees Ltd, R (on the application of) v Secretary of State for the Home Secretary [2018] EWCA Civ 2098 – read judgment
This was an appeal by Help Refugees Ltd against the refusal of its application for judicial review of the secretary of state’s consultation process regarding the relocation of unaccompanied asylum-seeking children under Section 67 of the Immigration Act 2016.
Background law and facts
This provision was passed in response to the mass migration into Europe of unaccompanied asylum-seeking children (UAS children) from the Middle East and North Africa. Section 67 established a scheme whereby the secretary of state was required to arrange for the relocation of “specified number” of UAS children. That number was to be determined by the secretary of state in consultation with local authorities. Because the s.67 scheme was not the only route by which UAS children might lawfully enter the UK, the specified number was to represent the highest number of s.67 UAS children that the local authorities could reasonably accommodate. It is inherent in the provision that the interests of UAS children in being located in the UK have to be balanced against the interests of other children for whom local authorities are responsible, and the public interest in ensuring that there is reasonable resource capacity in the system to accommodate the UAS children. In late 2015 – 2016 the number of migrants hugely accelerated in France, reflected in the increase in attempts to make unauthorised access to the UK from France through ports in Kent. This in turn imposed a huge burden on the local authorities in that region to fulfil their obligations under the Children Act, necessitating relocation to other parts of the UK.
On 8 September 2016, the Home Office wrote to all local authorities asking each to specify the number of children it could accept under s.67. By October, when the refugee camps in Calais were being cleared, UAS children in France were assessed for transfer under s.67 against published criteria, such as age, length of time in Europe, and country of origin (with older Sudanese and Syrian UAS children being allowed in). UAS children in France were assessed for transfer against these published criteria. For practical purposes, those who satisfied the criteria were transferred; and those who did not were not. The latter were told simply that they had not met the eligibility criteria –
“Age 18+” or “Criteria not met”.
The charity challenged both the lawfulness of the consultation process and the adequacy of the reasons given to the rejected children. The Divisional Court rejected both grounds of challenge ([2017] EWHC 2727 (Admin)).
The charity argued that the secretary of state had (1) failed properly to discharge her duty to consult; (2) breached her common law duty of procedural fairness by failing to give adequate reasons to the rejected children.
Hickinbottom LJ, giving judgment for the Court, allowed the appeal.
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4 October 2018 by David Hart KC
Bayer Plc v NHS Darlington Clinical Commissioning Groups (CCG) and others [2018] EWHC 2465 (Admin) – read judgment
This judicial review concerned whether it was lawful for NHS clinical commissioning groups to adopt a policy for offering the drug Avastin to patients suffering from “wet” (or neo-vascular) age-related macular degeneration (AMD). Avastin, although not licensed for ophthalmic use, at £28 per injection is significantly cheaper than the licensed alternatives (£816 and £551 respectively per injection). The Royal College of Ophthalmologists has estimated that the NHS-wide saving of switching to Avastin was at least £102 million p.a.
Bayer and Novartis (with their drugs licensed for AMD) therefore had considerable financial interests in setting aside this policy. They sought review of the commissioning groups’ policy. The manufacturer of Avastin (Roche) was an interested party. The drug is widely used in other countries for neo-vascular AMD. The General Medical Council had issued guidance saying that doctors could prescribe off-label medicines provided they were satisfied that there was sufficient evidence or experience of using the medicine to demonstrate its safety and efficacy.
There were essentially six issues before the court.
Whipple J dismissed the claim for judicial review.
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2 October 2018 by darraghcoffey
Coroner for the Birmingham Inquests v Hambleton & Ors [2018] EWCA Civ 2081 (26 September 2018)
At an inquest, the Coroner must investigate four things: the identity of the deceased and how, when and where they came by their death. Ordinarily, the question ‘how the deceased came by their death’ means ‘by what means’ they came by their death (R v. North Humberside Coroner, ex parte Jamieson [1995] QB 1).
However, in some cases, an enhanced investigative duty arises. When the death under investigation may have involved a failure by the state to fulfil its positive obligations under Article 2 of the ECHR, the interpretation of ‘how’ must be expanded to include an inquiry into the ‘circumstances in which the deceased came by his or her death’.
Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081 involved such an inquest. The central question for the Court of Appeal (composed of a panel including the Lord Chief Justice and the Vice-President of the Criminal Division of the Court) was whether, as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham bombings, the Coroner was required to call evidence directed at identifying those responsible for the bombings. The Court of Appeal decided that, in this case, the Coroner was not so obliged.
One Crown Office Row’s Peter Skelton QC, Mathew Hill and Gideon Barth appeared on behalf of the Coroner. They were not involved in writing this post.
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2 October 2018 by Rosalind English
With the start of the legal term, we’ve posted three great podcasts on Law Pod UK. Episode 42 looks at the influence of international law on individual rights after Brexit. In Episode 43 Clare Ciborowska discusses the new offence of coercive and controlling behaviour in family proceedings. And in Episode 44 we go to the Sainsbury Laboratory in Cambridge to find out what plant scientists think of the recent CJEU ruling on genetically modified organisms.
Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
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1 October 2018 by Eleanor Leydon
The European Court of Justice. Image Credit: The Guardian
The courts open again for Michaelmas term today, but in the meantime the round-up has the latest on a fresh set of challenges to government and NHS policy, plus a successful Brexit reference to the ECJ.
Firstly, a legal action seeking to establish whether the UK can unilaterally revoke Article 50 of the Lisbon Treaty has been referred to the European Court of Justice by the Court of Session, Scotland’s supreme civil court.
The action was brought by a cross-party group of six Scottish MPs, MEPs and MSPs, and the Good Law Project. The case was initially rejected in June as “academic and hypothetical”, but on appeal judges rejected the government’s core argument that the question was “academic” given that their policy is to leave the EU. Lord Carloway, Scotland’s most senior judge, commented: “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU.”
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28 September 2018 by Alasdair Henderson
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.
Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.
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27 September 2018 by Guest Contributor
Raychaudhuri v General Medical Council [2018] EWCA Civ 2027
On 14th September 2018 the Court of Appeal allowed an appeal by a doctor against a finding that his fitness to practice was impaired by reason of dishonesty.
This case concerned professional disciplinary proceedings against the appellant, Dr Hemmay Raychaudhuri. A complaint had been made in relation to how the appellant had filled in a form to record the medical examination of a child patient. This complaint was referred to a Medical Practitioners Tribunal (MPT). Assessing the scope for misunderstanding between the appellant and other medical staff, the MPT upheld the charge of ‘misleading actions’ rather than ‘dishonest actions’. As such there was no impairment of his ability to practice as a doctor.
The General Medical Council (GMC), however, alleged dishonesty on the part of the appellant. The GMC appealed to the High Court in reliance on section 40A Medical Act 1983. This stipulates the conditions under which the General Council may challenge a decision of an MPT if it believes a disciplinary decision made under section 35D does not sufficiently protect the public.
In the High Court, Sweeney J followed the decision of the Divisional Court in General Medical Council v Jagjivan [2017] EWHC, which held that the High Court had jurisdiction to hear an appeal by the GMC against a ruling by an MPT. He substituted the MPT’s finding to declare that the appellant had in fact behaved dishonestly and that therefore his fitness to practice was impaired.
There were three grounds of appeal before the Court of Appeal.
- The High Court has no jurisdiction under Section 40 to hear an appeal by the GMC against a finding by an MPT that a doctor’s fitness to practice is not impaired. This was an invitation to overrule Jagjivan;
- The High Court was wrong to substitute a finding that he had behaved dishonestly, where the MPT had acquitted him of dishonesty;
- Even if the conduct was dishonest, the High Court was wrong to find his fitness to practice was impaired and was wrong to remit the case to the MPT.
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24 September 2018 by Conor Monighan
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC
Professor Alison Young
Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.
First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.
Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.
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23 September 2018 by Thomas Hayes
This week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.
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21 September 2018 by Dominic Ruck Keene
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
In an exhaustive and detailed judgment coming to over 200 pages, the ECtHR held that both the bulk electronic communications interception regime operated by the UK’s intelligence agencies under the Regulation of Investigatory Powers Act 2000 and its provisions for acquiring communications data from telecommunications operators violated Articles 8 and 10 of ECHR.
However, the ECtHR held that there was no violation of Article 8 through the UK’s receipt and use of similar information obtained from other countries.
The ECtHR’s judgment is as noteworthy for what it deemed to be incompatible with the ECHR as what it deemed to be incompatible. In contrast to the tenor of many of the headlines in the media about the judgment, it was not an unreserved endorsement of the criticisms that have been levelled at the intelligence services in light of the Snowden revelations. The ECtHR’s comments as to the proportionality and necessity of the bulk collection of electronic communications, as well as about the adequacy of the safeguards and oversight structures will be of some consolation to the government.
The real issue for the Government is whether the ‘checks and balances’ in the Investigatory Powers Act (which is not yet fully in force) will be sufficient to defeat the criticisms made by the ECtHR of the previous regime under RIPA; in particular over the selection criteria for material that would be seen by human eyes and whether there are sufficient ‘journalistic’ safeguards.
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18 September 2018 by Conor Monighan
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC
The relevance of unincorporated international law (John Larkin QC):
Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:
- International law is determinative if it is incorporated.
- It ‘may have a bearing’ on the common law.
- It may be relevant to the application of Human Rights, via the Human Rights Act 1998.
The HRA 1998:
The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors [2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller [2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.
However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.
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18 September 2018 by Rajkiran Barhey
In a landmark judgment on 6 September 2018, the Supreme Court of India decriminalised homosexuality.
The decision in Navtej Johar v Union of India was the culmination of years of tireless campaigning by LGBT rights activists in India. This article seeks to provide an overview of the road to that led to this judgment, alongside some interesting themes emerging from the decision of the Supreme Court.
Background: The Indian Penal Code of 1860
There is a widely-held view that, prior to the colonisation of India, same-sex relationships were not frowned upon. The source of the prohibition on homosexuality is the Indian Penal Code, enacted in the 1860s by the government of the British Raj. It is thought that the ban enacted by the British represented an attempt to ‘civilise’ the Indian population through the imposition of Victorian standards of morality
The provision in question, section 377, simply states:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Indian Constitution
Following independence in 1947, the Constitution of India became effective in 1950. It created a system in which laws deemed to be incompatible with the Constitution could be struck down by the Supreme Court. In this sense, the Indian Constitution is similar to the US Constitution, and differs from the UK constitutional model.
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17 September 2018 by Conor Monighan
Credit: The Guardian
Conor Monighan brings us the latest updates in human rights law
In the News:
The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal. Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.
The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service. The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.
In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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