Category: LEGAL TOPICS

When is an advert “political” for the purposes of a ban under the Communications Act?

21 November 2013 by Rosalind English

R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party) [2013] EWCA Civ 1495 – read judgment

The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.

This was an appeal against a ruling by Silber J ([2013] EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision).
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Hostility to the European Court and the risks of contagion – Philip Leach and Alice Donald

21 November 2013 by Guest Contributor

Updated | The relationship between the UK and the European Court remains turbulent and fractious. The Court has been the subject of significant criticism, notably from some politicians and commentators in the UK, relating to its supposed interference in domestic, sovereign questions and the quality of its judges.

Some commentators say that the UK may have to withdraw from the jurisdiction of the court. Michael Pinto-Duschinsky argues that if (as is highly likely) the Council of Europe refuses to institute a “democratic override” for states of European Court of Human Rights decisions, withdrawal should be seriously considered. MP Nick Herbert argues that the UK should withdraw immediately.

Others have proposed withdrawing from the European Convention altogether. For example, in April, the Home Secretary, Theresa May, said that temporary withdrawal from the Convention was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (also known as Abu Qatada). Two members of the Commission tasked with investigating the creation of a UK Bill of Rights advocated withdrawal from the Convention unless the Court ceased its ‘judicially activist approach’ (p. 182).

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Materiality in environmental judicial review

18 November 2013 by David Hart KC

Gemeinde Altrip et al v. Land Rheinland-Pfalz, CJEU, 7 November 2013 – read judgment

When you challenge a decision in the courts on the basis that it was unlawful, you must show that the wrong is material. The other side may say that the wrong led to no difference in the decision; it would have inevitably have been the same even if the defendant had acted lawfully. The onus is on you the claimant, but it is not at the moment a high one. Only a possibility of a different outcome is enough to get you home and the decision quashed.

This materiality issue was one of the points in this challenge by local landowners to a flood retention scheme affecting some 320 ha of their land in the former Rhine flood plain. The scheme had undergone an environmental impact assessment which the locals said was defective. But did the locals have to show that correcting the defects might have made a difference to the ultimate decision? That was one of the questions which the German federal administrative court referred to the EU Court.

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Too little too late as Daily Mail “corrects” bogus human rights splash

12 November 2013 by Adam Wagner

The Daily Mail has belatedly “corrected” its front page story on human rights damages, over a month after it appeared on 7 October 2013. Early last month I blogged on  the original bogus article, which was so poor it generated a response from the ordinarily placid Council of Europe.

I have quote-pincered “corrected” as despite the newspaper’s actions, the damage is already done. A month has passed, which in social media time might as well be million years. People have moved on. Another human rights myth is implanted in the collective consciousness, and no sad little correction is going to dislodge a front page headline.

And to make things worse, the story was amplified by a whole host of other newspapers which picked it up without bothering to check the facts, including the Telegraph (corrected) and Daily Star (as yet uncorrected).

What really rankles about this story is how wrong it was.

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Renewable energy ambitions of the Scottish Ministers “trounce the law of the land”

11 November 2013 by David Hart KC

The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.

In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.

If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.

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Hospital closures and the rule of law

8 November 2013 by David Hart KC

Trust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

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Supreme Court weighs in on patient’s best interests and the meaning of futility

3 November 2013 by Kate Beattie

Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary

The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005.  The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.

The case concerned best interests decisions in the case of a patient lacking capacity.  The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure.  He was admitted to the critical care unit and placed on a ventilator.

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The difference between public and private law – on a beach near me

1 November 2013 by David Hart KC

More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.

For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.

How so?

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EU Balance of Competences Fundamental Rights Review

31 October 2013 by Adam Wagner

The Ministry of Justice is calling for evidence on the Review of the Balance of Competences between the United Kingdom and the European Union, specifically relating to fundamental rights. The consultation document is here and main website here.

The deadline for responses is 13 January 2014, but if you want to take part in one of the four discussion groups (three in London, one in Edinburgh), you need to email by tomorrow – all details below.

And don’t let the obscure-sounding title put you off. This review is potentially very important. Just look how broad question 1 is: 
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Freedom of expression – nakedness in a public place

31 October 2013 by David Hart KC

Gough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment

Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012,  wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. “He was otherwise naked and his genitalia were on plain view.” He then walked through Halifax town centre for about 15 minutes.

In the words of the judgment, he received a “mixed reaction” from its inhabitants.  At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were “alarmed and distressed” and “disgusted” at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as “shocked and disgusted”. The district judge found that it caused one of the women to feel at risk, and, further, based on the evidence, that it caused alarm or distress.

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Court of Appeal broadcasters must learn the Supreme Court lessons

31 October 2013 by Adam Wagner

Stefan Rousseau/PA Wire

TV cameras are recording Court of Appeal hearings from today. The BBC, ITN, Sky News and the Press Association are cooperating on the project, and have hired an in-court video-journalist who will recommend the most interesting cases.

This is great news. Let in the light. The more that the public can see what is going on in their courts, the better. The courts are a bewildering place for the uninitiated and especially for those who cannot afford to pay someone to explain what is going on. This is still a relatively small advance – only appeals will be broadcast, not trials, so the public is unlikely to see any cross examination of witnesses. But hopefully it will be enough to increase public understanding of and interest in the courts.

But a word of warning. This initiative will only succeed if it is implemented in the right way. And, there are important lessons here from the Supreme Court’s ongoing broadcasting experiment.

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You can’t be disabled when you’re dead – a footnote to R (Antoniou)

31 October 2013 by

A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.

Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.

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1940 Soviet massacre outside reach of European Convention, rules Strasbourg

29 October 2013 by Dominic Ruck Keene

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Wind farms, birds, and that pesky thing called the rule of law

28 October 2013 by David Hart KC

Sustainable Shetland, Re Judicial Review, 24 September 2013, Lady Clark of Calton  read judgment

The current storms brought down a turbine in Teignmouth: see here for good pics of this and other mayhem. And the rule of law recently brought down a massive wind farm proposed for Shetland. The Scottish Ministers had waved aside a request for a public inquiry, and ended up drafting reasons which ignored the obligations in the Wild Birds Directive in respect of this bird – the whimbrel. Lady Clark quashed the consent on this ground, and also decided that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which she concluded was a pre-condition for such an application. 

And there is a very good chance that the NGO which brought this challenge would not be entitled to do so if Mr Grayling gets his way, because it might well not have been held to have “standing”. Such a change he would regard as “firmly in the national interest”: see my post of last week on proposed reforms to judicial review rules. There are, to say the least, two sides to that argument about national interest, hence the importance of responding to his consultation paper, with its closing date of 1 November 2013.

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Human rights – coming to a private care home near you?

28 October 2013 by Kate Beattie

Winterbourne View

Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.

The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.

It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.

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