Category: In the news
18 July 2017 by Martin Downs
EU Equality law had its moment in the sun in the week after London Pride with the UK Supreme Court Judgment in the case of Walker v Innospec – albeit that the front page treatment in The Metro was not exactly the same as that in The Telegraph.
Many commentators had feared that the ECJ decision in David Parris v Trinity College Dublin would be a problem but Professor Rob Wintemute argued in this Blog earlier this year that it could be distinguished – and he was proved right. He also had quite a big walk on role in Supreme Court Judgment (see below).
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15 July 2017 by David Hart KC
European Union (Withdrawal) Bill and Explanatory Notes
The Great Repeal Bill has shrunk more prosaically into the EUWB, but its task is technically arduous. The easy bit is clause 1: the European Communities Act 1972 is repealed on (Br)exit day. Job done? No. Job hardly started.
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11 July 2017 by Rosalind English
Campaign against Arms Trade, R(on the application of) v The Secretary of State for International Trade [2017] EWHC 1754 (Admin) – read judgment
Angus McCullough QC acted as Special Advocate supporting the Claimant in this case. He is not associated with the writing of this post.
A challenge to the legality of UK’s sale of arms to Saudi Arabia has failed. The claim sprang from the conflict in Yemen and the border areas of Saudi Arabia. It focussed on airstrikes conducted by a coalition led by Saudi Arabia in support of the legitimate government of Yemen against the Shia-led Houthi rebellion. UK arms export policy states that the government must deny licenses for sale of arms to regimes if there is a ‘clear risk’ that the arms ‘might’ be used in ‘a serious violation of International Humanitarian Law. This in turn is based on the EU Common Position 2008/944/CFSP on arms export control, which explicitly rules out the authorising of arms licences by Member States in these “clear risk” circumstances.
The claimant argued that the body of evidence available in the public domain not only suggested but dictated the conclusion that such a clear risk exists. It was therefore no longer lawful to license the sale of arms to Saudi Arabia.
The High Court dismissed their claim. The CAAT intends to appeal this decision.
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7 July 2017 by Guest Contributor
In recent years direct challenges to the authority of the Court within a handful of member states have also become more explicit and vocal” and “the Convention system crumbles when one member state, and then the next, and then the next, cherry pick which judgments to implement.
So said Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights, last year. This raises the question of whether the Convention system is facing an implementation crisis and what more might be done by the Committee of Ministers, the regional body responsible for supervising the execution of judgments of the European Court of Human Rights.
Last month, the Bingham Centre for the Rule of Law and Leicester Law School convened a public event that asked an expert panel to consider these issues. Speakers included Merris Amos (Queen Mary University London); Dr Ed Bates (Leicester Law School); Eleanor Hourigan (Deputy Permanent Representative, UK Delegation to the Council of Europe); Nuala Mole (The AIRE Centre); and Prof Philip Leach (EHRAC, Middlesex University London and the European Implementation Network). Murray Hunt (Legal Adviser to the UK Joint Committee on Human Rights and incoming Director of the Bingham Centre) chaired the event.
While a detailed summary of the presentations is available on the Bingham Centre website, this post highlights some of the headline points from the conversation.
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7 July 2017 by Rosalind English
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent) [2017] NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
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6 July 2017 by Rosalind English
1 Crown Office Row have launched a new regular podcast, Law Pod UK, with presenter Rosalind English, to discuss developments across all aspects of civil and public law in the UK.
It comes from the creators of the UK Human Rights Blog and is produced by the barristers at 1 Crown Office Row. Post production by Whistledown Studios.
Episode 5: Further ruling on NI abortion rights, Charlie Gard, and transgender in Ultra-Orthodox Jewish community (6 July 2017).
Sarah Jane Ewart and Rosalind English discuss the latest developments in access to abortion for Northern Irish women, the lessons to be learned from the Charlie Gard case, and the difficult decision that the courts had to reach when considering the best interests of children in an Ultra-Orthodox Jewish family, where the father had left the community as a transgender person.
Episode 4: Supreme Court rules on NI abortion case (19 June 2017)
Rosalind English discusses the recent Supreme Court judgement on the case of women from Northern Ireland who seek abortions on the NHS in England.
Episode 3: Negligence Ruling in Meningitis case (28 May 2017)
David Hart QC and Rosalind English discuss the implications of a recent negligence case involving a young doctor’s failure to diagnose a child with meningitis.
Episode 2: Female terror plot trial, legal aid for unaccompanied minors, Value For Justice & post-Brexit legal landscape (18 May 2017).
Sarah Jane Ewart and Rosalind English discuss the prospect of the first all female terror plot trial, legal aid for unaccompanied minors in immigration cases, the Bar Council’s manifesto “The Value of Justice”, the law post-Brexit, and shift sleeping and the minimum wage
Episode 1: Election pledges on human rights, citizenship for third country EU nationals, CAGE case latest (26 May 2017).
Poppy Rimington-Pounder and Rosalind English discuss party election pledges and the Human Rights Act, the Muslim advocacy group CAGE’s forthcoming legal battle, a freedom of conscience ruling for members of the armed forces in the Bahamas, and citizenship rights for the children of third country nationals in Europe.
You can subscribe to Law Pod UK via Audioboom here. They will shortly be available for subscription and download from iTunes.
Please get in touch if you would like to collaborate on any future episodes.
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4 July 2017 by Poppy Rimington-Pounder
Women from Northern Ireland who travel to the UK seeking abortions will now be able to access the procedure without charge on the NHS. See the Supreme Court decision on this, posted by Rosalind English, which brought the whole matter to light. You can hear a discussion of the various issues in this case on our new podcast series.
The government changed its policy on the matter amid fears that Conservative MPs were planning on supporting an amendment to the Queen’s speech, put forward by Labour MP Stella Creasy, to provide Northern Irish women with access to free abortions in England; with the new Conservative government’s much reduced majority, Prime Minister Theresa May could not afford to risk a rebellion from her own MPs.
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30 June 2017 by David Hart KC
Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment
As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.
The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.
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30 June 2017 by Guest Contributor
A recent EAT ruling JP Morgan v Ktorza continues a line of decisions which limit the role of employee expectations in the determination of unfair dismissals claims further curtailing the extent to which employees can rely on public law notions or human rights principles to challenge their dismissals.
In this case HHJ Richardson re-affirmed the correct approach to dismissal claims: (1) it is the employer’s view objectively judged which falls to be considered not the expectations of the employee; (2) the Employment Tribunal is not to substitute its own view; and (3) the s 98(1)-(2) of the Employment Rights Act 1996, gateway of ‘conduct’ as the reason for a dismissal should not be conflated with the band of reasonable responses test under s 98(4).
Background facts and law
Mr Ktorza was a highly paid sales executive in the trading arm of JP Morgan Securities Plc before his dismissal after an incident of alleged misconduct triggering an earlier (unrelated) final written warning. The more recent incident which resulted in JP Morgan deciding to dismiss Mr Ktorza was a practice known as ‘short-filling’ in respect of trades; a practice which carried financial and regulatory risk for JP Morgan.
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29 June 2017 by Rebecca King
Event:
Join us for an Immigration law briefing over breakfast at 1 Crown Office Row, London.
Short talks by the barristers covering some of the latest developments will be followed by an interactive discussion.
When:
Tuesday July 18th 2017 8.15am for an 8.30 start – running til 9.30am
Speakers:
Jeremy Hyam QC – Specialist in Public Law and Human Rights
Sarabjit Singh – Draws experience from a diverse practice, with a focus on Immigration.
Suzanne Lambert – Has particular experience in Immigration, Judicial Review and Appeals.
Paul Reynolds – Paul is building a strong practice in Public Law and Human Rights, including Immigration
Where:
1 Crown Office Row, Temple, EC4Y 7HH
RSVP:
Please RSVP events@1cor.com
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27 June 2017 by Sarah Ewart
IN THE NEWS
The Strasbourg Court has ruled inadmissible the claims by Charlie Gard’s parents that the withdrawal of artificial ventilation from the severely ill child would breach their right to respect for family life under Article 8. Seven judges ruled that it was most likely that Charlie was “being exposed to continued pain, suffering and distress”. The parents had wanted to take him to undergo experimental treatment in the US, but the Strasbourg Court said that undergoing this treatment with “no prospects of success… would offer no benefit”.
These means that the Great Ormand Street Hospital may proceed with the Supreme Court’s order to end the baby’s continued suffering by removing Charlie from life support. We will post a link to the text of the decision when it becomes available; here in the meantime is the press release detailing the inadmissibility decision in the case Gard and Others v. the UK . See our most recent update here for more details and earlier posts here and here.
As the Law Gazette reports, David Lidington takes over from Liz Truss as Lord Chancellor and representative of the judiciary in the Cabinet. He is our fifth Lord Chancellor in just five years. David Lidington has been Conservative MP for Aylesbury since 1992. You can find his voting record here and check out this profile of his record on human rights by Rights Info.
The Independent reports that the number far right extremists reported to the government’s counter-terrorism Prevent strategists increased by 30% in the past year. Prevent has been criticised for its ineffectiveness and now for focusing too heavily on Islamist terror. See Liora Lazarus in the UK Constitutional Law blog on the tension between (and politicisation of) human rights and effective counter-terrorism, and Adam Wagner on how we respond to terror.
Litigation following the Grenfell Tower disaster is inevitable. Sir Keir Starmer, the former Director of Public Prosecutions (DPP), said on the Andrew Marr show that prosecutors are looking into corporate manslaughter charges. Such a charge is notoriously difficult to bring (see Solicitors’ Journal here and the CPS guidelines here). There have been other calls for charges to be brought under the common law offence of gross negligence manslaughter, especially after it was revealed that both the insulation and the tiles in the building failed multiple safety tests. But legal challenges regarding negligent maintenance are also difficult to bring due to the lack of legal aid for the claimants. We’ll keep you posted as this case develops.
It’s Refugee Week this week, so head over to Free Movement for an in-depth look at the new Home Office policy of periodically reviewing (and where possible returning) refugees who have been granted indefinite leave to remain.
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27 June 2017 by Rosalind English
J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 (30 January 2017) – read judgment
The Court of Appeal has granted permission to the father to appeal against the decision of the High Court earlier this year. Briefly, Peter Jackson J denied a father, who now lives as a transgender person, direct contact with his five children who live with their mother in the heart of a Charedi community of ultra-orthodox Jews.
The judge said that he had reached the “unwelcome conclusion”
that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.
The appeal hearing, estimated to last one day, will take place on 15 November 2017.
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25 June 2017 by David Hart KC
R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2017] EW
HC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment
Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.
Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.
The key bit of the impugned guidance was that those running local authority pensions must not use their policies to
pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;
or
“pursue policies that are contrary to UK foreign policy or UK defence policy”.
The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.
No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.
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25 June 2017 by Guest Contributor
Koldo Casla of the Policy, Research and Training Manager of Just Fair @JustFairUK, an organisation that monitors and advocates economic and social rights in the UK
Women’s sexual and reproductive rights are not safe and accessible in all corners of the United Kingdom: see Rosalind English’s post on the Northern Irish situation here and here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Abortion is still a crime in Northern Ireland. Women who choose to exercise their sexual and reproductive rights have to travel to mainland Britain, but they have to face costs (about £900 in the recent case discussed by Rosalind English) that would not apply if they lived in England, Wales or Scotland.
By a majority of 3 to 2, the Supreme Court ruled that, while this situation does in principle concern the right to enjoy a private and family life without discrimination (Articles 8 and 14 of the European Convention on Human Rights), the difference in treatment is justified because the decision on this matter falls under the powers of the devolved administration of Northern Ireland (paragraph 20 of the Judgment). And therefore the human rights of women living in Northern Ireland are not being breached.
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20 June 2017 by Rosalind English
Yates v United Kingdom – here
Update: On 27 June the Strasbourg Court ruled the application by Charlie Gard as inadmissible. The full decision is not yet up on the Court’s website but here is the press release detailing the Inadmissibility decision in the case Gard and Others v. the UK – decisions by UK courts endorsed A spokesman for the Great Ormond Street Hospital said:
Today’s decision by the European Court of Human Rights marks the end of what has been a very difficult process and our priority is to provide every possible support to Charlie’s parents as we prepare for the next steps.
The Strasbourg Court by a majority endorsed in substance the approach by the UK courts, saying that they had been “meticulous” in their reasoning. It is likely that Charlie’s life support will now be withdrawn and he will be given palliative care only.
Following the Strasbourg Court’s request for interim measures for the UK – which means the hospital may not take Charlie Gard off life support as the Supreme Court has allowed it to do – the Supreme Court arranged a short hearing to take place Monday 19 June, to give directions. The Strasbourg Court has now put in place a further request that treatment and nursing care be continued beyond its original deadline of 19 June (see the press release from Strasbourg here: Gard and Others v. the UK) . This is because that Court has to consider the parents’ application that the case does not just concern Charlie’s right to die with dignity but their rights under Article 8 as his parents to be afforded respect for their decisions as to what is in Charlie’s interests.
This is a unique situation facing the Supreme Court, and, probably, the judges of the European Court of Human Rights. As the UK court acknowledges, by granting a stay, even of short duration, it would “in some sense” be complicit in directing a course of action which is contrary to Charlie’s best interests, since this was its last word on the matter. It is no wonder that this is causing some soul-searching. The Strasbourg Court’s interim measures order is directed at the government, not Great Ormond Street Hospital or its doctors. The latter won a ruling from the Supreme Court that they should remove life support from Charlie Gard because it is considered to be in violation of his right to die with dignity, and, of course, not in his best interests.
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