Category: In the news
9 January 2017 by Guest Contributor
In the recent case of David Parris v. Trinity College Dublin, the CJEU found that the ineligibility for a survivor’s pension of an employee’s same-sex partner, in circumstances where the 2011 recognition of their civil partnership by Irish law had come after that employee’s 60th birthday and therefore too late to trigger the pension entitlement, gave rise to neither direct nor indirect sexual orientation discrimination.
The UK Government had made written submissions in Parris, hoping for reasoning that would support its defence of an exception in the Equality Act 2010 permitting unequal survivor’s pensions for same-sex civil partners and spouses. The compatibility of the UK’s exception with EU law and the ECHR will be tested in John Walker v. Innospec Ltd, an appeal to heard by the UK Supreme Court (UKSC) on 8-9 March 2017. For a detailed analysis of the Court of Appeal’s judgment, see R. Wintemute, March 2016, 45(1) Industrial Law Journal 90-100.
Although it is suggested that the CJEU erred in finding no sexual orientation discrimination in Parris, it focussed on a rule of the Irish pension scheme that does not exist in Walker, namely that the employee’s marriage or civil partnership must take place before their 60th birthday. It is therefore suggested that Parris will not help the UK Government in Walker.
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3 January 2017 by Rosalind English
Briggs v Briggs & Ors [2016] EWCOP 53 (20 December 2016) – read judgment
Apologies for starting the new year on such a sombre note, but there is a shaft of light in that this Court of Protection judgement is a clear indication that judges – or some of them – are prepared to favour an individual’s autonomy over the traditional emphasis on the sanctity of life above all else.
As Charles J points out, this case raises issues of life and death and so vitally important principles and strongly held views. The decision he had to make was whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs was in a minimally conscious state (MCS) as the result of serious and permanent brain damage he suffered as the victim of a traffic accident eighteen months ago. He was not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in the Tony Bland case did not apply to him (Airedale NHS Trust v Bland [1993] AC 789). In that case, it will be remembered, their Lordships concluded that the continuation of life in such a state was futile. Problems arose with subsequent advancements in neurological diagnosis, where a less catastrophic condition known as MCS was established. In 2012 a court ruled that a patient in MCS could not be deemed to have made an advance directive regarding medical treatment even though during her lifetime she had made her position very clear that she would not want to continue living in such a reduced state (Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653). Her views did not, in their view, encapsulate the state of MCS. See my post on that decision here. Baker J’s refusal of the family’s application to allow treatment to be withdrawn came in for severe criticism in the British Medical Journal (see Richard Mumford’s post on that article). The author took Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. Charles J took a very different approach in this case.
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21 December 2016 by David Hart KC
Govia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment
As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers.
Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.
But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.
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21 December 2016 by Guest Contributor
Angela Patrick of Doughty Street Chambers provides an initial reaction on the implications of the decisions in Tele Sverige/Watson for domestic surveillance and the Investigatory Powers Act 2016.
In an early holiday delivery, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the joined cases of Tele Sverige/Watson & Ors (C-203/15/C-698/15), this morning.
Hotly anticipated by surveillance and privacy lawyers, these cases consider the legality of data retention laws in Europe, following the decision in Digital Rights Ireland that the Data Retention Directive was unlawful. Broadly, the CJEU confirms that EU law precludes national legislation that prescribes the general and indiscriminate retention of data. The Court concludes that the emergency data retention legislation passed in a few days in 2014 – the Data Retention and Investigatory Powers Act 2014 – is unlawful. That legislation is, of course, due to lapse at the end of December 2016 in any event.
This morning’s decision comes just too late to have influenced the passage into law of the Investigatory Powers Act 2016 (“IPA”) – the new domestic bible on bulk surveillance, interception, communications data retention and acquisition and equipment interference – which received Royal Assent in early December. However, what the CJEU has to say about surveillance and privacy may determine whether the IPA – also known by some as the Snoopers Charter – has a long or a short shelf-life.
The powers in IPA are built on the same model as its predecessor and provides for broad powers of data retention with limited provision for safeguards of the kind that the Court considered crucial. Significant parts of that newly minted legislation lay open to challenge.
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9 December 2016 by Rosalind English
Siddiqui v University of Oxford [2016] EWHC 3150 (5 December 2016) – read judgment
This case raises the interesting question of whether a disappointed graduate may call upon the courts to redress a grievance concerning the grade he was given for his degree; not just what his ground of claim should be, but whether this is the kind of grievance which should be navigated through the courts at all. There are some matters which are arguably non-justiciable matters of academic judgment.
The facts of the case may be summarised briefly. The claimant is a former history student at Brasenose College, Oxford. The defendants are, or the defendant is, collectively, the Chancellor, Masters and Scholars of the University of Oxford. The defendant is referred to throughout as the University.
The claimant sat his final examinations in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. His claim against the University was for damages for negligent teaching leading, he alleges, to him failing to get a higher 2:1 or a first class degree which, he said, he would otherwise have achieved.
The University applied to strike out the claim and/or for summary judgment on the ground that it was hopelessly bad on the merits and also plainly time barred.
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1 December 2016 by Thomas Beamont
The Investigatory Powers Act 2016
The Investigatory Powers Act 2016 is set to become law in the United Kingdom following its passing of the third stage of legislative scrutiny earlier this month. The Act seeks to consolidate and amend the legislative framework which governs the use of investigatory powers, including the Regulation of Investigatory Powers Act 2000 (RIPA). It is expected to receive royal assent by the end of 2016.
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30 November 2016 by Guest Contributor
Re: W (A child) [2016] EWCA Civ 1140 – read judgment
Summary
A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.
Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.
The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.
The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.
The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.
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23 November 2016 by David Hart KC
R (ClientEarth No.2) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 November 2016, transcript awaited
A quick follow-up ruling to the judgment of 2 November (here) in which the UK’s air pollution plans under EU and domestic laws were found wanting by the Administrative Court. The pollutant was nitrogen dioxide – a major product of vehicle exhaust fumes.
This Monday’s hearing was to decide precisely what the Government should be ordered to do in respect of the breach. The judgment was extempore, but the short reports available (e.g. here) suggest that the ruling is of some interest.
The parties had already agreed that it was unnecessary to quash the existing plan, which could remain in place until the following year whilst DEFRA prepared a new plan – presumably on the basis that a defective plan was better than no plan at all.
This week’s disputed issues related to timing for a new plan and whether and how the court could or should keep a watchful eye on Governmental progress.
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23 November 2016 by Jonathan Metzer
Armes v Nottinghamshire County Council [2016] EWHC 2864 (QB) – read judgment
In a nutshell
The right of a claimant to name the people who abused her prevailed over the rights of the perpetrators and others to private and family life.
The claimant, Natasha Armes, applied to set aside an anonymity order granted at the start of a previous trial to protect the identities of witnesses accused of physically and sexually abusing her in foster care.
Mr Justice Males undertook the balancing exercise between the rights to private and family life under Article 8 of the European Convention on Human Rights and the right to freedom of expression under Article 10.
Freedom of expression won the day. Males J lifted the anonymity order, accepting that since most of the allegations had now been proven anonymity was no longer justified.
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21 November 2016 by Thomas Beamont
In the news
The rights of people with disabilities in the UK have come under scrutiny recently by both the Supreme Court and a UN Committee. On 9th November, the Supreme Court handed down judgment in a case concerning the ‘bedroom tax’. This judgment comes days after the UN Committee on Rights of Persons with Disabilities criticised the UK’s treatment of people with disabilities under recent welfare reforms, finding “grave and systematic violations of the rights of persons with disabilities.”
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20 November 2016 by Rosalind English
JS (Disposal of Body), Re [2016] EWCH (Fam) (10 November 2016) – read judgment
A great deal has been written about this case but few of the headlines reflect the humanity and sensitivity of the decision, which may not be ground breaking nor precedent setting, but reflects how the law should respond to individual wishes if those play out in a way that cannot harm anyone else. Post-mortem cryonics may have a certain morbid ring, but it is a matter of individual choice, provided the resources are there to pay for it. As the judge observed, it was
no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law.
Background facts and law
Peter Jackson J was faced with an application from JS, a 14 year old cancer patient whose condition had become untreatable. After researching the diminishing options available to her, JS had come across cryonics, the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future. The science ofcryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. But whole body cryopreservation has not been achieved in any mammal species, largely due to the difficulties of reviving brain tissue. As the judge said,
cryonics is cryopreservation taken to its extreme.
Only three organisations in the world provide this service, one in the United States being involved in this case. The cost is about ten times as much as the average funeral. Although JS’s family is not well off, her grandparents had raised the necessary funds. Whatever anyone may think of this procedure, there was no doubt about JS’s intelligence and her capacity to make this decision. She wrote, in response to asking to explain why she wanted “this unusual thing done”:
I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”
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17 November 2016 by Guest Contributor
The election of Donald Trump as the next US President has shaken our faith in democracy and is a serious blow to the cause of human rights in the US and around the world. President-elect Trump’s campaign was a repudiation of the political and social progress made under his predecessor. It was an explicit threat to those who are vulnerable – whether because of their religion, race, gender, sex, sexual orientation, or physical abilities. Trump’s election, an ‘American tragedy’, comes at the end of a year in which the values that are said to underpin civic society in the US and Europe have come under significant threat.
When President-elect Trump’s inauguration takes place early next year he will seek to set the tone in the Western hemisphere, and across the globe, for the rest of this decade. It is clear, even before we address specific policies or world-views, that we will miss the grace and poise of President Obama. These are qualities that President-elect Trump revels to reject. We are unlikely to hear an affirmation of rights such as that President Obama made with the alliterative triad of Seneca Falls, Selma, and Stonewall.
What then, for human rights, in the time of Trump?
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17 November 2016 by Dominic Ruck Keene
After the lynch mob of outrage stirred up by the recent Divisional Court ruling on Article 50, it is a brave judge indeed who would say anything in public about the question of whether and how Parliament (i.e. the legislature) needs to approve the notification of the European Council under Article 50 of the UK’s intention to leave the EU.
Baroness Hale was therefore perhaps pushing the envelope of bold courage to make a speech in Malaysia on 7 November and refer to that precise issue before the Supreme Court have heard the case.
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16 November 2016 by Jim Duffy
Amid a level of scrutiny unprecedented in the Supreme Court’s seven-year history, that is a headline unlikely to make it into tomorrow’s tabloids.
Nevertheless, as Lord Wilson explains in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60:
“Today is an important day in the life of our court. For it is the first occasion upon which either we or our predecessors in the House of Lords have had occasion to address the interface between the power of the Secretary of State to deport a foreign criminal and the latter’s ability to resist deportation by reference to his right for respect for his family life under article 8 of the ECHR.”
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14 November 2016 by Guest Contributor
Oversight of the Intelligence Services is a matter of enormous public importance, as counter-terrorism powers are enhanced to combat a pernicious and persistent threat.
A recent Report by the Intelligence Services Commissioner, Sir Mark Waller, assisted by Oliver Sanders of these Chambers, dispels some misconceptions about contact between the intelligence services and Michael Adebolajo, one of 2 men convicted of murdering Fusilier Lee Rigby[1]. It also shines a light on how HMG applies its policy on the treatment of detainees held overseas – in Adebolajo’s case, by a Kenyan partner counter-terrorism unit in 2010. Not all of the Report’s findings make comfortable reading for the Intelligence Services.
HMG’s policy was, and remains, never to assist, condone, encourage, solicit or participate in any form of mistreatment of detainees. The 2010 Consolidated Guidance to Intelligence Officers on the Detention and Interviewing of Detainees Overseas[2], is intended to guide UK personnel who work with overseas agencies where, by definition, they are unlikely to be in total control of the situation in which detainees are held.
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