Category: In the news
8 March 2018 by Guest Contributor
Josh Newmark is a History and Politics graduate from Durham University and an incoming History MSc at the University of Edinburgh, currently teaching in Salamanca. He is part of the youth-led #DontSettleForThis campaign with Yachad, the pro-Israel, pro-peace movement in the UK.
The security of a roof over one’s head, a space for personal and familial privacy… Having “a place to call home” is widely recognised as an essential prerequisite for human wellbeing. This is acknowledged across the political spectrum – from the phrase “property-owning democracy” shared by both Thatcherites and American liberal philosopher John Rawls, to left-wing movements for affordable housing. In Judaism, too, the value of having a home is recognised. A key aspect of Judaism’s story is learning from the experience of being a people in exile, yearning for a home – “love the stranger, for we were once strangers in Egypt” is a frequent refrain in the Torah. Moreover, the Jewish household is of central importance to Jewish life – with its important physical features, like the mezuzah (boxed prayer scroll attached to each door frame), and key practical functions, such as hosting the traditional Friday night family meal to welcome the Sabbath. Undoubtedly, this is one of the motivating factors for young British Jews’ repugnance towards the Israeli’s government continuing policy of demolishing Palestinian homes.
Yachad is a British Jewish NGO which promotes support for a political solution to the Israeli-Palestinian conflict within the Jewish community through education, debate, and advocacy. Under the hashtag #DontSettleForThis, young Yachad activists are raising awareness within the Jewish community of the demolitions of Palestinian homes, and pushing the UK government to help prevent these demolitions.
According to Israeli humans rights NGO B’Tselem, Israel has demolished at least 1,323 Palestinian residential units in the occupied West Bank, plus over 600 just in East Jerusalem, since 2006. This policy has taken homes from over 8,000 people in that time period, more than 50% of them minors. These figures exclude the demolitions which Israel controversially carries out upon the family homes of convicted or deceased terrorists. Rather, these are homes which are being demolished because they have been built without permits. While demolishing such structures might seem to be the right, even obligation, of a governing authority, only a little detail is necessary to make clear that this policy is an inflammatory and unjust policy which compounds the wider injustice of the occupation itself. The dual policy of allowing and stoking a Palestinian housing shortage whilst allocating land for well-planned, well-connected illegal Israeli settlements, often with illegal (even under Israeli law) structures tolerated on them, highlights the deep inequality inherent in the occupation.
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7 March 2018 by Rosalind English
Our very own Commissioning Editor, Jonathan Metzer, is discussing with Rosalind English the right of appeal against refusal of a residence card under the EU immigration rules for family and extended family members of UK citizens. He has also written a post on this and the reference to the European Court of Justice in Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC) .
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6 March 2018 by Guest Contributor
Credit: Onjali Rauf from Making Herstory
R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice [2018] EWHC 407 (Admin) – read judgment
The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.
The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.
The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.
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5 March 2018 by Eleanor Leydon
Photo credit: Guardian
In the News
UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
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2 March 2018 by Rosalind English
Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11 – read judgment
Matthew Flinn covered this Supreme Court case in his excellent analysis here. I focus on one point of disagreement between the judges, which is whether a court, before holding that the state owes an investigative duty for the actions of private parties, would require the clearest statement in consistent decisions of the European Court of Human Rights.
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1 March 2018 by Martin Downs
A speech by Mark Rowley (the outgoing Assistant Commissioner of the Metropolitan Police for Specialist Operations and National Lead for Counter Terrorism Policing) to Policy Exchange has been given the front page treatment with headlines like, “Extremists should lose access to their children.” The speech has been made available in full by the Policy Exchange on their website and on Youtube.
Additionally, The Times quotes Mark Rowley as saying, in response to questions from the press in advance of the speech,
We still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children.
If you know parents are interested in sex with children, or if you know parents believe that people of their faith or their belief should hate everybody else and corrupt children for it, for me those are equally wicked environments to expose children to.
The speech is phrased more tentatively but included this passage,
The family courts and social services now routinely wrestle with child protection and safeguarding cases arising out of terrorism and extremism. However, we still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children. I wonder if we need more parity between protecting children from paedophile and terrorist parents.
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27 February 2018 by Jonathan Metzer
One way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was upheld by the Supreme Court).
For as long as the UK remains in the EU, there is also an alternative option – an application under the Immigration (European Economic Area) Regulations. This offers a route for the family of an EU citizen to apply for a UK residence card.
But the law in this area concerning the right of appeal has been on the move. This article will aim to give an update of where we are up to and what is still yet to be decided.
UPDATED following the Advocate General’s opinion in Banger – see end of this post.
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26 February 2018 by Rosalind English
Alder Hey Children’s NHS Foundation Trust v Evans, James and Alfie Evans (a child by his guardian Cafcass Legal) [2018] EWHC 308 (Fam) – read judgment
This was an application by the hospital for a declaration to allow their doctors to withdraw life support from a 19 month old child, Alfie. He suffers from a progressive, ultimately fatal neurodegenerative condition, probably a mitochondrial disorder. His epileptic seizures have not been brought under control by anti-convulsant treatment. The evidence before the court was that even if these seizures were to end, his brain is “entirely beyond recovery”. However caused, his neural degeneration is both “catastrophic and untreatable”.
In simple terms the thalami, basal ganglia, the vast majority of the white matter of the brain and a significant degree of the cortex have been wiped out by this remorseless degenerative condition.
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26 February 2018 by Dominic Ruck Keene
In Razumas v Ministry of Justice [2018] EHWC 215 a prisoner who had made a claim for clinical negligence against the Ministry of Justice, rather than against the specific health care provider, had his claim dismissed.
In a judgment that sheds light on the current approach to both vicarious liability and non-delegable duties of care, Cockerill J held that: (1) the MOJ had not breached its limited direct duty of care, (2) did not owe a non-delegable duty of care and (3) was not vicariously liable.
The Claimant alleged that there was a negligent failure to diagnose and treat a soft tissue sarcoma, a rare form of cancer, which developed in his calf muscle in 2010. He has since had to undergo a left leg amputation above the knee and also surgery for metastatic disease in his left shoulder muscle. It is estimated that there is a 70% chance that he will develop further metastases in the future. His life expectancy has been sharply reduced.
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25 February 2018 by Conor Monighan
In the News:
Credit: Garry Knight, Flickr
Commissioner of Police of the Metropolis v DSD
The Supreme Court ruled that the police have a positive obligation to conduct an effective investigation into crimes involving serious violence to victims, in line with Article 3 of the ECHR. In this case the obligation had been breached.
The case concerned the police’s investigation into the ‘black cab rapist’, John Worboys. Two of his victims brought a claim for damages against the Commissioner of the Metropolitan Police Service (MPS), on the basis of an alleged failure of the police to conduct an effective investigation into Worbys’ crimes. The victims were awarded compensation in the first instance. The Court of Appeal dismissed the MPS’ appeal, and the case came before the Supreme Court.
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25 February 2018 by Martin Downs
The Court of Appeal in Northern Ireland will sit this week to consider an appeal against the refusal of the High Court to give recognition to the marriage of a gay man from Northern Ireland who had married his husband in London under the Marriage (Same Sex Couples) Act 2013. The original decision by Mr Justice O’Hara was published last August and reported as Re X [2017] NIFam 12. Under the terms of the 2013 Act, same sex marriage in England and Wales is treated for the purposes of the law of Northern Ireland as a civil partnership (in accordance with the Civil Partnership Act 2004). The Petitioner wants recognition of his marriage as such and argues that the denial of recognition is a breach of his Convention Rights.
When civil partnerships were being introduced for England, Wales and Scotland, Northern Ireland was going through one of its periods of direct rule from London. The UK government embarked upon a lightning consultation exercise and subsequently decided to include Northern Ireland in what came to be the Civil Partnership Act 2004. That meant that civil partnership was a UK wide arrangement. In fact, by a quirk of the law, the first civil partnership ceremony in the UK took place in Belfast, between Shannon Sickles and Grainne Close (who have also been refused a High Court Declaration that they can get married in the North).
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23 February 2018 by David Hart KC
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
So why was it decided to be unlawful?
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21 February 2018 by Matthew Flinn
Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11 – Read Judgment
In an important decision for UK human rights law, the Supreme Court confirmed on 21st February 2018 that the police have a positive operational duty – owed to the individual victims of certain crimes – to conduct an effective investigation under Article 3 of the European Convention on Human Rights.
The decision stems from a claim brought by two victims of John Worboys, a London black cab driver who committed “a legion of sexual offences on women” between 2003 and 2008.
The victims, identified in the proceedings as DSD and NBV, sought damages from the Metropolitan Police, due to various failures in the course of investigating their complaints. The action was brought under sections 7 and 8 of the Human Rights Act (“HRA”) 1998, which enables claims for damages to be pursued in the English Courts where there has been a breach of an article of the European Convention on Human Rights (“ECHR”). This approach was taken because a “standard” action in the tort of negligence would be doomed to failure. There is a long line of authority, still holding firm (although regularly probed and challenged), which provides that police are immune from suit due to negligent failures in the conduct of many of their public functions, largely for policy reasons.
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21 February 2018 by Rosalind English
NT 1 & Anor v Google LLC [2018] EWHC 261 (QB) (15 February 2018) – read judgment
This was a Pre Trial Review of an application by the claimants to have details about an old criminal conviction and other information removed from Google and associated websites under the “right to be forgotten”. Each of the claimants sought orders prohibiting the defendant (Google) from continuing to return internet search reports which included information about the claimant which he claimed was inaccurate, stale, irrelevant, and thereby infringed his data protection and privacy rights. The “right to be forgotten” is, in this context, also referred to as “de-listing”. The two cases are due to be tried by Warby J at the end of February. In order to avoid an own goal at trial, where those very names and convictions would be made public, the parties sought to come up with forms of pseudonym or cipher that would protect them. One proposal was that
in the NT1 case a co-defendant of the claimant at his criminal trial in the late 1990s should be referred to as “Mr A”, and that certain offshore companies used by NT1 should be referred to as “Companies A and B”. There are also references to “Businesses A, B, C, D, E, F, G and H”. In the NT2 case, the claimant also had a co-defendant, and the proposal is to call him “Mr A”. This is not the same person as the “Mr A” in the NT1 case. “Company A” in the NT2 case is a cipher for “The business in which the claimant [NT2] previously had an interest.” It is not the same as Company A in the NT1 case. The Confidential schedule in the NT2 case also features “Companies F, G, H, I, J, K and H” which are all different from any of those that feature in the NT1 claim.
Warby J was unimpressed with this alphabet soup. He did not relish the prospect of preparing a judgment, or two judgments, using these ciphers.
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19 February 2018 by Guest Contributor
The German Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz) (literally: Law on the improvement of law enforcement in social networks and known as ‘NetzDG’) has attracted much media attention, e.g. here and here, since fully entering into force on 1 January 2018. This was sparked to a significant extent by a few high profile deletions, including a tweet from the responsible Minister for Justice.
This contribution will give an overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a ‘chilling effect’ on free expression are borne out by the evidence. A review of the law and its effects are is planned after an initial three year operation period, which should deliver ample data and regulatory experience while limiting the scope for potential harm.
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