Category: In the news
11 October 2017 by Rosalind English
Conway, R (On the application of) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) – read judgment
This case concerns the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages. See our previous post on it here and here. It follows a line of cases which have addressed that or similar issues, in particular R (Pretty) v Director of Public Prosecutions [2001] UKHL 61; [2002] 1 AC 800 (“Pretty“), R (Purdy) v Director of Public Prosecutions [2009] UKHL 54; [2010] 1 AC 345 (“Purdy“) and R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] AC 657(“Nicklinson“). Permission to bring this judicial review was granted by the Court of Appeal (McFarlane and Beatson LJJ, see [2017] EWCA Civ 275), having earlier been refused by the Divisional Court (Burnett LJ, Charles and Jay JJ) at [2017] EWHC 640 (Admin
Section 1 of the Suicide Act 1961 abrogated the rule of law whereby it was a crime for a person to commit suicide. In this hearing Mr Conway sought a claim for a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 in respect of the prohibition in the criminal law against provision of assistance for a person to commit suicide. That prohibition is contained in section 2 of the Suicide Act 1961.
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1 October 2017 by Rosalind English
XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) (18 September 2017) [HQ15C04535]
Podcast about this case now downloadable
Commercial surrogacy arrangements are considered to be against public policy in the UK and therefore illegal. Surrogacy in the UK is only legal where there is no intention to make a profit – though reasonable expenses are recoverable. Where legal surrogacy is
carried out the surrogate mother is the legal mother of the child. In this case the claimant had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. She had to undergo chemotherapy and radiation treatment which, amongst other things, damaged her uterus so she was unable to bear and carry a child. Before the treatment she had her eggs frozen.
The hospital admitted negligence. As part of her damages claim she sought the expenses she would incur for a commercial surrogacy arrangement in California. She wished to go to the US since the position of a woman seeking surrogacy in the UK is made more difficult by the fact that commercial arrangements are illegal. This means that in the UK the surrogate chooses the biological mother, rather than the other way around. The lack of certainty over parental status was also cited as a reason why an arrangement in the US would be preferable.
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1 October 2017 by Rosalind English
You may remember the podcast discussion between me, Rosalind English, and David Hart QC earlier in the summer about the NHS decision not to fund the drug Kuvan for the amelioration of symptoms of a boy suffering from phenylketonuria (PKU) and severe autism. The podcast concerned a High Court ruling that the health service should review its decision not to fund the drug Kuvan.
As I mentioned in the original report, the judge did warn the boy’s family against being too optimistic, saying
however much one might hope that on the next occasion the panel will decide that the net additional expenditure of treating S with Kuvan would be justified … they could still lawfully decide to refuse funding.
However, the judge’s caution has not been borne out by events. On Friday 29th September it was reported that NHS England has agreed to provide the drug to treat his PKU, which if left unchecked can lead to complications including brain damage.
Listen to Episode 9 of Law Pod UK, available for download on iTunes
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29 September 2017 by Rosalind English
... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.
“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.
This short story is so replete with topical issues it is hard to know where to begin.
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24 September 2017 by Sarah Ewart
In the news this month:
The Brexit Bill
The Bill for the withdrawal from the European Union has been dominating the news over the past few weeks. Mark Elliott comments that it is ‘difficult to overstate the importance’ of the bill from a constitutional standpoint, and the House of Lords Constitution Committee has said in an interim report that its political, legal and constitutional significance are ‘unparalleled’. Concern has been voiced in various quarters over the use of ‘Henry VIII’ powers (so named because of the monarch’s disdain for parliamentary restraint) which will allow the executive to bypass parliament to ‘tweak’ legislation, and a concomitant lack of sufficiently robust sunset clauses or checks and balances to the handover of such powers. For more detail, I highly recommend listening to David Hart QC’s conversation with Rosalind English on our new podcast series Law Pod, in which he details the potential consequences of the bill in general and in terms of environmental law in particular; you can read his comments here or have a listen here.
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23 September 2017 by David Hart KC
ACCC Findings in ACCC/C/2008/32
Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention.
Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.
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16 September 2017 by David Hart KC
RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J – judgment here
In my March 2017 post here, I explained that amendments to the costs rules for public law environmental claims threatened to undo much of the certainty that those rules had achieved since 2013. Between 2013 and February 2017, if you, an individual, had an environmental judicial review, then you could pretty much guarantee that your liability to the other side’s costs would be capped at £5,000 (£10,000 for companies) if you lost, and your recovery of your own costs would be limited to £35,000 if you won. In this way, the rules sought to avoid the cost of such claims becoming prohibitively expensive and thus in breach of Art.9(4) of the Aarhus Convention.
The most worrying element in the February 2017 amendments was a new CPR 45.44 giving the courts a broad discretion to vary those amounts, apparently at any time. This seemed like an open invitation to the defendants to try to do this, aided by the financial information which claimants are now obliged to provide. It was truly regressive, taking us back to the days when you spent many thousands of pounds arguing about a protective costs order which was intended to save money.
In my March post, I explained that the new rules were being challenged by NGOs, and Friday’s judgment is the upshot of this challenge.
It is essentially a success for the NGOs.
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8 September 2017 by Olivia Kaplan
There are a few places remaining for 1 Crown Office Row’s high-level seminar this Monday 11 September. The event is aimed at solicitors and people associated with NGOs. We also have a limited number of student places which will be allocated on a first come first served basis.
Email events@1cor.com to reserve your place.
Details:
11th September 2017, 5 – 8pm
Programme:
5 – 5.50pm Panel Discussion chaired by Mrs Justice Whipple.
Speakers will include: Marina Wheeler QC, Jeremy Hyam QC, Shaheen Rahman QC, Martin Downs and Adam Wagner.
6 – 6.40pm Breakout sessions – Law and Practice
(i) Public Powers and Private Lives in the Information Age – Amelia Walker
(ii) Inquests and Article 2 – Rachel Marcus, Caroline Cross, Peter Skelton
(iii) Unlawful detention – Suzanne Lambert, Alasdair Henderson, David Manknell
6.45pm Concluding Session – Questions and Summing Up.
Chaired by Mrs Justice Whipple
7pm Drinks Reception
Hosted by the speakers and 1COR Members.
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1 September 2017 by Rosalind English
We have just posted a discussion here between 1 Crown Office Row recruit Thomas Beamont and Rosalind English on the reach of Artificial Intelligence into the legal world: click on Episode 10 of our podcast series.
Law Pod UK is freely available for download on iTunes
Related material:
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21 August 2017 by Rosalind English
Richard Susskind, IT adviser to the Lord Chief Justice, has spent many years looking into the future of the law. In a fascinating podcast paving the way for his new book The Future of the Professions and the updated Tomorrow’s Lawyers, he discusses with OUP’s George Miller the new world of technological advancements in the day to day management of dispute resolution. We have taken the liberty of summarising the podcast here and posting a link to the interview at the end of this post.
Susskind finds, in comparison with the rest of the English speaking world, that the legal institutions of the UK are in some sort of denial about the march of AI. He maintains that the legal world will change more in twenty years than it has in the past two centuries. If we want to improve access to justice in our society, the answer is in technology. But the law schools have not caught up with this idea.
How do we work out what to do in the face of irreversible and inevitable change in the law? Susskind acknowledges that most people want to pay less for legal services, for something that is less complicated, less combative. It’s not that there’s less legal work to do, there’s more legal work to do, but it’s under cost pressure.
The twenties will be the big decade of change. The age of denial ended in 2016; leaders in law are no longer saying the legal world is going to go back to what it was in 2004-6. But the period from 2016 – 2020 is the area of resourcing, put bluntly, finding cheaper people to do the work by outsourcing, as manufacturing did years ago. Once we’re into the twenties, we’ve arrived in an area Susskind calls the decade of disruption. The challenge to lawyers will be to provide not only one to one services in the traditional way, but to work on systems that one day will replace us. The trusted advisor concept is not fundamental to the legal service. That was limited to the print world. The future of the professions is to imagine other ways in which these problems must be sorted out. When a client has a problem, and they say they want a trusted advisor, what they really want is access to reliable expertise, and this is being worked on in the field of AI. Our technology is becoming more and more capable. Future clients will happily go for that even if they lose the surrounding aura or trappings of a traditional legal advisor.
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20 August 2017 by Thomas Beamont
The mother of a British soldier who was killed in a roadside bomb while on duty in Iraq has received an apology from Defence Secretary Sir Michael Fallon. Sue Smith’s son, Pte Phillip Hewett, died while travelling on patrol in a lightly armoured “snatch” Land Rover in July 2005.
Following a settlement of the case, Sir Michael has written to Ms Smith:
“I would like to express directly to you my deepest sympathies and apologise for the delay, resulting in decisions taken at the time in bringing into service alternative protected vehicles which could have saved lives.”
What did Ms Smith allege?
The circumstances around Pte Hewett’s death have been the subject of litigation for the last 6 years.
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18 August 2017 by Rosalind English
SB, R (on the application of NHS England) [2017] EWHC 2000 – read judgment
The High Court has quashed a decision by NHS England refusing to fund the drug Kuvan for a young boy who has a condition inhibiting his ability to digest protein.
This case involves a number of important issues, such as the allocation of resources under the NHS, the extent to which courts may interfere with healthcare choices, and the role of “rights” in these decisions, including the welfare of the child. David Hart QC discusses these issues in detail with Rosalind English in the latest podcast in our Law Pod UK series; here is a brief summary.
The seven-year-old child has severe autism and phenylketonuria (PKU), an inherited metabolic disorder. The mainstay of PKU treatment is a strict dietary regime which restricts the intake of high protein foods. But because of his autism, SB is unable to understand and therefore abide by these food restrictions. Consequently his doctors sought funding for the drug Kuvan (sapropterin dihydrochloride), which would allow him to get a proportion of vitamins and minerals from ordinary food. If he were to respond to the drug, the levels of protein in his blood would fall below the level at which he risked irreversible brain damage. However, his consultant acknowledged that his overall development outcome would mostly be affected by the severity of his autism rather than his PKU and that Kuvan would not be expected to significantly alter or improve his behaviour.
The funding panel accepted that SB fulfilled the conditions for exceptional need but the lack of long-term prospects for improvement meant that his application did not pass the “clinical effectiveness” test.
Andrews J found that this decision was flawed and remitted it for reconsideration, with the caveat that the funding panel may be entitled to continue to decline treatment on different grounds.
Listen to Episode 9 of Law Pod UK, available for download on iTunes
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9 August 2017 by Rosalind English
Just posted: Marina Wheeler QC in conversation with Rosalind English about efforts to preempt and limit the influence of extremist materials on children in the family courts. In this interview Marina also discusses the implementation of the government’s counterterrorism “Prevent” strategy against adults who are suspected of starting down a pathway towards terrorism but who have as yet committed no crime. The podcast is now available on iTunes as Episode 8 in our series.
To listen, click on the Law Pod UK banner on the top right hand of the home page. You can access this and other free episodes of Law Pod UK, including David Hart QC on the Brexit Bill and its implications for the environment. Read more about David Hart’s concerns about the potential loss of right to sue for breach of EU law under the rule in Francovich in The Times: https://www.thetimes.co.uk/article/brexit-bill-will-remove-right-to-sue-government-750dhfjj3?shareToken=09ea60e3150edafe920c43e542df0351
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5 August 2017 by Marina Wheeler QC
R (Salman Butt) v Secretary of State for the Home Department [2017] EWHC 1930 – read judgment
In the wake of the London and Manchester attacks, the government’s counter-terrorism strategy is increasingly in the news and under scrutiny. Radicalisation is a difficult concept to map on to a system like ours, which separates the definition of criminal behaviour and punishment from civil sanctions. In this week’s podcast, Marina Wheeler discusses some of the ways the law is trying to cope (Law Pod UK Episode 8, available free on iTunes). She and others from 1 Crown Office Row will be discussing this and related issues at a seminar on Monday 11 September.
At the end of July 2017, Mr Justice Ouseley upheld one element of the government’s counter-terrorism strategy – the Prevent Duty Guidance to universities (and other further and higher education bodies) which aims at “stopping extremists from radicalising students on campuses”. He also rejected a complaint that the work of the Home Office’s Extremism Analysis Unit (EAU), breached the Article 8 privacy rights of the claimant, Dr Salman Butt.
We posted a summary of this ruling last week. 1 Crown Office Row’s Oliver Sanders and Amelia Walker represented the Secretary of State. Paul Bowen QC and Zahra Al-Rikabi represented Dr Butt.
In 2011 the Strategy was revised to cover the journey from extremism towards terrorist-related activity (including by the far-right). This attracted criticism, examples of which were collated and presented to support the claimant’s challenge to the lawfulness of the measures. But Ouseley J dismissed all heads of claim, observing that he was
not concerned with whether some oppose the CTSA, or regard the Prevent Duty as counter-productive or have made it so, deliberately or through misunderstanding it.
What was decisive in this case was the absence of evidence that the Prevent Duty Guidance had had a chilling effect on free speech or academic freedom, as claimed. The Prevent Duty Guidance, under section 26 of the CTSA, only came into force in 2015. As those who apply it gain experience and confidence, they will make better judgments. But there will always be some mistakes. One way to avoid these is to have constructive discussion about the process, informed by evidence, not drowned out by “clamorous” criticism.
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4 August 2017 by Rosalind English
Butt v Secretary of State for the Home Department [2017] EWHC (Admin) 26 July 2017 – read judgment
Oliver Sanders and Amelia Walker acted for the Home Secretary in this case. They have nothing to do with the writing of this post.
The High Court has thrown out a number of challenges to the government’s efforts to prevent extremism on university platforms.
In 2015 the Home Office released guidance regarding its initiative to tackle extremism in universities under the Counter-Terrorism and Security Act 2015, CTSA. The press release referred to 70 events on campuses featuring “hate speakers”. The claimant Dr Butt was among six named as “expressing views contrary to British values”.
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