Category: LEGAL TOPICS


Round Up: Should short term jail sentences be abolished? Plus rulings on Universal Credit and judicial pensions.

14 January 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

prison

Credit: The Guardian

The Government is considering whether to abolish prison sentences lasting six months of less.

Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.

In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.

The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.

The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.

In Other News….

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Damages for wrongful life refused

10 January 2019 by

ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment

Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.

The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children.
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The Round Up: Should veganism be protected by the Equality Act?

10 December 2018 by

Conor Monighan brings us the latest updates in human rights law

Vegan.jpg

Credit: The Guardian

In the News:

This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.

Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.

Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.

The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
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The Round Up: Criminal Sentencing, Assisted Suicide and a warning to Facebook

3 December 2018 by

In the Courts:

Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.

The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.

Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).

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Supreme Court will not hear assisted suicide appeal

30 November 2018 by

Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment

A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,  here and here). As the Supreme Court noted in their short decision, Mr Conway

could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.

But Mr Conway doesn’t  see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued,  would avoid all these problems.

In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.

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The third inquest into the death of Pearse Jordan: when “don’t know” is the only available answer

28 November 2018 by

In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan [2018] NICA 34.  The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.

The Inquests 

On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.”  Mr Jordan was unarmed and was shot in the back.  Three inquests have subsequently been held into his death.
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Conscience and cake: the final chapter

15 October 2018 by

gay cake.jpg

The cake at the centre of the controversy — Image: The Guardian

Lee v. Ashers Baking Company Ltd – read judgment here.

On Wednesday the Supreme Court handed down its much-anticipated judgment in the ‘gay cake’ case. The Court unanimously held that it was not direct discrimination on grounds of sexual orientation or political opinion for the owners of a Northern Irish bakery to refuse to bake a cake with the message ‘Support Gay Marriage’ on it, when to do so would have been contrary to their sincerely held religious beliefs.

The judgment is a significant and welcome affirmation of the fundamental importance of freedom of conscience and freedom of speech. The Court emphasised that refusing to provide a good or service to someone because they are gay (or because of any other protected characteristic) is unlawful discrimination — this judgment should not give anyone the idea that discrimination is now acceptable. However, the Court made clear that the purpose of equality law is to protect people, not ideas, and that no-one should ever be compelled by law to make a statement or express a message with which they do not agree.

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Round Up- Civil Partnerships for all and the Unlawfulness of Hardial Singh.

8 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Marriage-009

Credit: The Guardian

In the News:

The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.

Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.

Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.

The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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ALBA Summer Conference 2018: A Review (Part 3)

24 September 2018 by

albaConor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC

Professor Alison Young

Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.

First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.

Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.
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ALBA Summer Conference 2018: A Review (Part 1)

13 September 2018 by

alba

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.

The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights.
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The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

27 May 2018 by

Yes campaigners react as they wait at Dublin Castle for the official result of the Irish abortion referendum

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

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The Round Up: Grenfell, lost DVDs, and a Deputy Judge who erred in law.

21 May 2018 by

Conor Monighan brings us the latest updates in human rights law.

Grenfell

Credit: The Guardian

In the News:

An independent report into building regulations, commissioned by the government in the wake of the Grenfell disaster, has called for the current regulatory system to be overhauled.

However, the report surprised some because it did not recommend a ban on flammable cladding. It also declined to recommend stopping so-called ‘desktop studies’, where materials are tested without setting them on fire. The chairman of Grenfell United expressed disappointment at this conclusion. The Royal Institute of British Architects expressed support for banning inflammable cladding and the government has said it will consult on the issue. The Prime Minister has also pledged £400 million to remove flammable cladding from tower blocks.

The author of the report, Dame Judith Hackitt, said that banning the cladding was insufficient. Instead, she stated that a ‘whole system change’ is needed. Dame Hackitt warned that cost was being prioritised over safety and that ‘banning activities and particular materials […] will create a false sense of security’.

The report recommended fundamental changes to building regulations, saying that the process which drives compliance with the regulations are ‘weak and complex’. Dame Hackitt found that there was a ‘race to the bottom’ in the building industry that was putting people at risk. She also wrote that product testing must be made more transparent, and that residents’ voices were not being listened to.

The Grenfell Inquiry will open this week. For the first two weeks, the lives of those who died will be remembered in a series of commemorations.
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Supreme Court: unfairness/equal treatment only an aspect of irrationality

16 May 2018 by

R (o.t.a. Gallaher et al) v. Competition and Markets Authority  [2018] UKSC 25, 16 May 2018, read judgment

UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.

This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.

The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.

6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.

Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?

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The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by

A woman in a room of servers

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

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Headline- Round Up: Sir Cliff Richard’s case against the BBC reaches the High Court

23 April 2018 by

Conor Monighan brings us the latest updates in human rights law

cliff

Credit: The Guardian

In the News:

The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.

In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.

Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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