Category: In the news
29 January 2018 by Guest Contributor
The House of Lords Constitution Committee today issues its main report on the European Union (Withdrawal) Bill. This follows the preliminary and interim reports on the Bill that the Committee published last year. The new report is wide-ranging and hard-hitting, the Committee’s view being that the Bill ‘risks fundamentally undermining legal certainty’.
In this post, we make no attempt to summarise the report. Rather, we focus on two key and interlocking chapters that address the legal nature and constitutional status of the new body of domestic law — ‘retained EU law’ — that the Bill will create. In doing so, we highlight the Committee’s view that central parts of the Bill are ‘conceptually flawed’ and that relevant retained EU law should be reconceived by treating it as if it were contained in an Act of Parliament enacted on ‘exit day’.
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27 January 2018 by Guest Contributor
General Medical Council v. Dr Bawa Garba, Divisional Court, 25 January 2018 – read judgment here
By Jeremy Hyam Q.C. of 1 Crown Office Row: see end of post for his involvement.
On 4th November 2015, Dr Bawa Garba was convicted of gross negligence manslaughter of a 6 year old boy. She was sentenced to two years of imprisonment suspended for two years. On 29 November 2016 the Court of Appeal Civil Division refused her leave to appeal against her conviction.
This case concerns proceedings before the Medical Practitioners Tribunal Service (MPTS), the MPTS’s decision to suspend her, and the GMC’s successful appeal on the basis that Dr Bawa Garba should have been erased from the register.
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18 January 2018 by Rosalind English
Nixon & Anor, R (On the Application of) Secretary of State for the Home Office [2018] EWCA Civ 3, 17 January 2018 – read judgment
The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation “out of country” rather than in the UK. Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .
Background
The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here. The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness. The Supreme Court reversed the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts.
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17 January 2018 by Rosalind English
In the cooperative spirit of podcasting, Professor Catherine Barnard of Cambridge University has kindly agreed to allow Law Pod UK to repost the enlightening podcasts from her series 2903CB, charting the transitional stages that need to be negotiated as we progress towards 29 March 2019, when the UK will be no longer part of the EU (CB being Catherine Barnard). Here’s the first one: UK Law Pod No 21: Outlining the legal milestones to Brexit, also available as part of the UK Law Pod series on iTunes.
We hope to continue to rebroadcast her series, along with our own output of interviews and seminars from 1 Crown Office Row on all manner of subjects.
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15 January 2018 by Angus McCullough KC
A flash-back to 1980: the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):
Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last five hundred years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it’s worked so well?
Hacker: That’s all ancient history, surely?
Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn’t work. Now that we’re inside we can make a complete pig’s breakfast of the whole thing — set the Germans against the French, the French against the Italians, the Italians against the Dutch… The Foreign Office is terribly pleased; it’s just like old times.
Hacker: But surely we’re all committed to the European ideal?
Sir Humphrey: [chuckles] Really, Minister.
Nearly 40 years later, as the Westminster Government seeks to extract the UK from the European project, chuckles are in short supply (in contrast to articles about Brexit). This piece considers the role of judicial review as the EU Withdrawal Bill is enacted, and after Brexit day has dawned – and the capacity of the Administrative Court to meet the increased demands that will predictably be made of it.
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14 January 2018 by David Hart KC
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here
The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this. That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.
The opinion is complex and I summarise it in the simplest terms. But here goes.
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23 December 2017 by David Hart KC
Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment
Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.
The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.
The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.
On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.
But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.
Let me set the scene for this, before telling you the result.
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22 December 2017 by Jonathan Metzer
2017 has been a dramatic year in global politics and no less in the world of human rights law.
It has been a fascinating time to be editor of the UK Human Rights Blog. As just a taster, decisions have ranged across issues of the best interests of a seriously ill child, the conduct of British soldiers in Iraq and whether a transgender father should be allowed access to his children in an ultra-religious community. But there is much, much more.
So pour yourself a large measure of whatever you fancy, unwrap that mince pie waiting for you in the larder, and let me take you by the hand as we embark on a whirlwind tour of 10 of the biggest human rights cases of the year:
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22 December 2017 by Guest Contributor
Re M (Children) [2017] EWCA Civ 2164, 20 December 2017, read judgment
The Court of Appeal reversed the judgment of the High Court that a transgender father from the ultra-Orthodox Jewish community should not have direct contact with her children. The case was remitted to the Family Court for reconsideration.
Facts
The factual background is fully set out in the High Court judgment of Peter Jackson J (as he then was). The parents and their five children are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The mother and children remain there, while the father no longer lives within the community after leaving in June 2015 to live as a transgender woman. Both parents agree that the children should be brought up within the community.
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21 December 2017 by Rosalind English
We have two new podcasts up on iTunes Law Pod UK.
Charlotte Gilmartin if you remember recently unpacked the planning dust-up over the Eagle Wharf redevelopment in Regent’s Canal in her recent post on the High Court judgment. More on this important decision and its implications for planners in her discussion here.
And the case of the Islamic state school of Al-Hijrah in Birmingham which attracted so much attention when the High Court ruled in favour of Ofsted’s critical report continues to make waves. Rajkiran Bahey analysed it here and ponders the many issues involved in discussion with Rosalind English here.
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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21 December 2017 by Guest Contributor
R (on the application of Black) v The Secretary of State for Justice [2017] UKSC 81
Read Judgment
Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)?
This was the question asked of the Supreme Court by a prisoner serving an indeterminate sentence at HMP Wymott. As Lady Hale noted in the judgment: this issue affects all premises occupied by the Crown, including central government departments, and that it is important to determine whether the ban can be properly enforced in these places.
The answer the court gave is ‘no’, as this provision does not bind the Crown, of which HMP Wymott is an institution.
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20 December 2017 by David Hart KC
Dover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
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18 December 2017 by Rosalind English
Aseran and others v Ministry of Defence [2017] EWHC 3289 (QB) 14 December 2017 – read judgment
The High Court has upheld claims by four Iraqi civilians that their human rights had been breached by the British army. Their claims in tort were rejected as time-barred.
These were four claims in the large scale action known as the Iraqi civilian litigation. This judgment follows the first full trials of civil compensation claims in which the claimants themselves and other witnesses testified in an English courtroom. The introduction given by Leggatt J best explains the picture.
The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated …by British armed forces and who are claiming compensation from the Ministry of Defence. Questions of law raised by the conflict in Iraq, some of them novel and very hard questions, have been argued in the English courts and on applications to the European Court of Human Rights since soon after the conflict began. Until now, however, such arguments have taken place on the basis of assumed facts or limited written evidence.
The four claims were tried as lead cases out of more than six hundred remaining cases. All the claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort was applicable. But the claims were subject to a doctrine known as Crown act of state which precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad.
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15 December 2017 by Charlotte Gilmartin
R (On the Application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)
Read the judgment here: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3298.html
Recent years have seen a significant increase in the number of people sleeping on the streets in Greater London — the figure has more than doubled since 2017.[1] This includes people of all nationalities, and a significant number of EEA nationals.
The High Court has quashed policy guidance which set out the circumstances in which “rough sleeping” would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal if this would be proportionate .
Factual Background
The Claimants were two Polish nationals and one Latvian national against whom removal notices had been served. They challenged the legality of the policy on the basis that it was contrary to EU law.
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12 December 2017 by Jonathan Metzer
On 5th December 2017, the Divisional Court gave judgment in Power v HM Senior Coroner for Inner London [2017] EWHC 3117 (Admin), directing that an inquest held in 1998 into a road traffic accident following a police chase had been insufficient and a fresh inquest needed to be held.
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