High Court rules that equalising pension ages did not prejudice women

9 October 2019 by

Delve & Anor, R (On the Application of) v The Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin)read judgment

In a judgment handed down on 3rd October, the High Court has ruled that successive statutes between 1995 and 2014, which legislated to equalise the state pension age between men and women were not discriminatory. The High Court also determined that it was not a matter for the courts to conclude whether the steps taken to inform those affected by the changes in the state pension age for women were inadequate or unreasonable.

Background

The origins of this claim rest in the Old Age and Widows’ Pension Act 1940, where the state pension age for women was lowered from 65 to 60 in response to a campaign by unmarried women in the 1930s. The policy created a relative disadvantage to men, justified by the social conditions at the time.

The Pensions Act 1995 was enacted to equalise the age discrepancy and the methodology followed in subsequent legislation was to stagger the advancement of the pension age by reference to age cohorts. The first change to women’s state pension age contained in the 1995 Act would take effect in 2010, 15 years later.


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A Climate of change? Taking stock of the Urgenda case with a Supreme Court ruling on the horizon

8 October 2019 by

Where one looks across the piste of emergent significant climate litigation – that is, important cases in courts around the world that deal significantly with issues related to climate change – the case of State of Netherlands v. Urgenda (hereafter ‘Urgenda’looms as large as most, if not any, court ruling to date.

This case, brought by the eponymous Dutch NGO Urgenda, has been rightly held up by many lawyers, commentators and environmental activists concerned to protect our planet from the harmful impacts of anthropogenic climate change as an important testament to the capacity for human rights law to assist in grappling meaningfully with hard problems posed by climate change in the courts. 

Here, The Hague Court of Appeal ruled in October 2018 that the State was required to adjust the Netherlands’ national greenhouse gas emissions reduction target for 2020 upward from 20% to 25% (measured on 1990 emissions levels). This example of national courts ordering a state to adopt a more stringent climate mitigation target is unprecedented at the present time.

In addition to being of particular interest to human rights lawyers and legal analysts, including in these pages where key elements of the ruling have been summarised and discussed by David Hart QC, the broader ripple-effects of the case have become a motivating force in the wider context of climate activism, including in relation to some of the climate protests that have been springing up lately around the world.


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Law Pod UK Ep. 96: What is a ‘mother’ in law?

7 October 2019 by

Charlotte Gilmartin of 1 Crown Office row, currently doing a Pegasus internship in Strasbourg, posted about the case of  TT, R(on the application of) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam) last week.

Births and Deaths Registration Act 1953

In Episode 96 of Law Pod UK she discusses the case with Rosalind English. As promised, the statutory regime and relevant international law instruments are set out below.

Registration of Births and Deaths Regulations 1987 

Gender Recognition Act 2004

Human Fertilisation and Embryology Acts 1990 and 2008

The European Convention on Human Rights Article 14 and Article 8


Law Pod UK is available on 
SpotifyiTunes, AudioboomPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear. 

 

The Weekly Round-up: Hong Kong, data privacy, and pensions equality

7 October 2019 by

Image: Studio Incendo

Sam Sykes and Conor Monighan provide the latest updates in human rights law

In the news

This week marked the 70th anniversary of the Community Party’s rule in China. In Hong Kong, there were violent protests and clashes with the police. The unrest which began in the wake of the controversial extradition bill introduced 4 months ago has developed into a wider movement for democracy, and there is no resolution in sight. The situation has caused damage to buildings and transportation infrastructure, and serious injuries: this week, an 18-year-old was shot in the chest – police say that he is now recovering.

Carrie Lam, the Chief Executive of Hong Kong, invoked the Emergency Powers Ordinance to try and create order. It is the first time in 50 years that such regulations have been created. The regulations ban people from wearing face masks, which protesters use to protect themselves from tear gas, and also to preserve their anonymity. Although many have ignored the rule, the Hong Kong authorities are now bringing the first charges under the new law.  


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ALBA Conference 2019: A Review

7 October 2019 by

This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.

This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.

alba

The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.


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Browser Generated Information: “loss of control” entitles search engine users to compensation

4 October 2019 by

Richard Lloyd v. Google LLC [2019] EWCA Civ 1599

The Court of Appeal has ruled that a claimant can recover damages for loss of control of their data under section 13 of Data Protection Act 1998 without proving pecuniary loss or distress. The first instance judge, Warby J, had dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction in the USA, so preventing the claim getting under way.

The following paragraphs are based on the Court of Appeal’s own summary of the judgment.

The central question was whether the claimant, Mr Richard Lloyd, who is a champion of consumer protection, should be permitted to bring a representative action against Google LLC, the defendant, a corporation based in Delaware in the USA. Mr Lloyd made the claim on behalf of a class of more than 4 million Apple iPhone users. He alleged that Google secretly tracked some of their internet activity, for commercial purposes, between 9th August 2011 and 15th February 2012.


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Abolishing private schools and redistributing their assets: social justice at the expense of human rights?

3 October 2019 by

A short examination of whether the policy endorsed by the Labour Party as part of its pledge to support social justice can be justified in law or is a flagrant contravention of human rights. This article was first published in Counsel magazine.

It didn’t take long for some rather well-known lawyers to point out there may be a flaw in this plan. Lord Lester QC of Herne Hill in a letter to the Times that weekend pithily explained that as long ago as 1982, he and David Pannick had advised the school governing bodies that ‘Labour’s plan would violate the European Convention on Human Rights and its first protocol. Our opinion was published. No one disputed our advice and the policy was dropped.’ He expressed surprise about the plan being reignited and continued to be of the view that the plan would violate the European Convention on Human Rights (‘the Convention’).


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What is a“Mother”, in law?

30 September 2019 by

Image: The Guardian

A person who undergoes the physical and biological process of carrying a pregnancy and giving birth, irrespective of gender? This was the ruling of the Rt. Hon. Sir Andrew McFarlane P, President of the Family Division, on 25th September in TT, R(on the application of) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam)  . He decided that the Claimant, (known as “TT”), who was legally recognised as male at the time of giving birth to his child, (“YY”), is correctly registered as “mother” on YY’s birth certificate.
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Supreme Court rules unanimously that the prorogation of Parliament was unlawful

24 September 2019 by

R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41

In a historic decision, a panel of 11 justices of the Supreme Court has held that the decision of the Prime Minister, Boris Johnson, to prorogue Parliament for 5 weeks from 9 September to 14 October 2019 was unlawful on the basis that it constituted an unjustified frustration of the constitutional principles of Parliamentary sovereignty and accountability.

Giving the summary of the Court’s reasons for the decision, the President of the Supreme Court, Lady Hale, said that

when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper … Parliament has not been prorogued.

It follows, said Lady Hale, that the Speaker of the House of Commons and the Lord Speaker of the House of Lords “can take immediate steps to enable each House to meet as soon as possible”.


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The Round-Up: Prorogation Declared ‘Unlawful’

24 September 2019 by

Gina Miller outside the Supreme Court earlier today (Credit: The Telegraph)

The verdict is in. The Supreme Court has unanimously held that Boris Johnson’s advice to the Queen to prorogue Parliament until October 14 was ‘unlawful, void and of no effect’, since it had the effect of frustrating Parliament. As such, the prorogation was itself void. 

The full judgment and the summary judgment are available and can be downloaded from the Supreme Court website. Lady Hale’s summary judgement is also widely available to watch in full

For those with still less time, The Guardian has summarised the six key paragraphs as follows.


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Round Up 16.09.19. In fashion this Autumn/Winter – Constitutional Law?

16 September 2019 by

sept 16.jpg

Flags flutter outside Parliament. Credit: The Guardian.

Very few weeks have given the function of the legal system and the role of the courts as much prominence, nor exposed them to as much scrutiny, as the last week. The decision of the Prime Minster to prorogue Parliament, followed by the granting of royal assent to legislation which would require him to seek an extension to the Article 50 process for exiting the European Union, has launched into the public consciousness areas of constitutional law previously the domain only of law students cramming for exams, public law lawyers and academics in tweed blazers. In what at times made Newsnight look like an hour-long revision seminar for Graduate Diploma in Law students, unfashionable concepts such as justiciability, judicial review and the rule of law took centre stage, framed by the context of Brexit.

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Facial Recognition Technology: High Court gives judgment

12 September 2019 by

R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin)

The High Court has dismissed an application for judicial review regarding the use of Automated Facial Recognition Technology (AFR) and its implications for privacy rights and data protection.

Haddon-Cave LJ and Swift J decided that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilised society. The Court also held that South Wales Police’s (SWP) use to date of AFR by has been consistent with the requirements of the Human Rights Act 1998 (HRA) and data protection legislation.

Nonetheless, periodic review is likely to be necessary. This was the first time any court in the world had considered AFR. This article analyses the judgement and explores possible avenues for appeal.


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A Tale of Two Judgments: Scottish Court of Session rules prorogation of Parliament unlawful, but High Court of England and Wales begs to differ

11 September 2019 by

The Scottish Court of Session (Inner House) today ruled that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful. The High Court of England and Wales today handed down its judgment on the same issue – and came to the opposite conclusion.

How can these two conflicting judgments be resolved? They can’t, so it’s off to the Supreme Court on 17 September.

Before we delve into the decisions of both courts, a reminder of some of the key issues:

Prorogation: The act of discontinuing a parliamentary session, until the State Opening of Parliament which commences the next session. It is unlike recess, which is a break in the parliamentary session when parliamentary business is merely suspended, and MPs can be more easily recalled if required. It is also unlike dissolution, which occurs before an election and mean that every MP must re-stand for election.

When Parliament is prorogued, all business comes to an end. Bills which remain in progress (i.e which have not become law) lapse and must be restarted when Parliament is re-opened.

The Prime Minister decided on 28 August 2019 to advise the Queen to prorogue Parliament. An Order in Council was made that day by the Queen, effecting the Prorogation. Parliament was prorogued on 9 September 2019, and – as it stands – will not sit again until 14 October 2019.

Justiciability: The concept of a matter being susceptible to, and capable of, review by the courts. ‘Non-justiciability’ encompasses a number of principles. In Shergill v Khaira, [2014] UKSC 33 the Supreme Court has distinguished two categories of non-justiciability, (1) issues with no basis in domestic law and (2) issues in respect of which judicial restraint will be exercised, due to the separation of powers and judicial competence. The latter is in issue in these cases. Political questions, and certain matters involving the exercise of the Royal Prerogative, are often argued (and held) to be beyond the reach of judicial review. Recent decisions show that the concept is not absolute, even with regard to prerogative powers.


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