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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Right of appeal against refusal of a residence card: the conclusion

10 September 2019 by

Field House, where the Upper Tribunal sits

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.


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The Weekly Roundup: Facial Recognition Technology (and Brexit)

10 September 2019 by

Image: UK Parliament/ Jess Taylor

In the news

As we inch towards October, the £100m government campaign to ‘Get Ready for Brexit’ has been launched. But to all intents and purposes, the government are jumping the gun. By the time businesses have managed to get themselves ready for Brexit (again), Boris Johnson will probably have been required to request an extension to Article 50 under the anti-no deal bill proposed by Hillary Benn, which today was given royal assent and passed into law.


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No-deal Brexit and the right to life

5 September 2019 by

One intervention that did not quite make it onto this week’s packed Parliamentary highlights reel came from Emily Thornberry MP.

The Shadow Foreign Secretary suggested that deaths caused by a lack of basic medicines following a No-deal Brexit would entitle coroners to reach a finding of ‘neglect’ in future inquests.  She added that it was her understanding the government had received legal advice to that effect.

Her remarks follow the leak two weeks ago of government documents prepared as part of ‘Operation Yellowhammer’. These reportedly predicted severe, extended delays to the supply of medicines in the event of a No-deal departure.

Neglect

Depending on the content of the warnings about medicines, Ms Thornberry may be right.  An argument that a deceased’s death has been caused or contributed to by neglect is usually levelled against a local police force that fails to provide basic medical attention to a detainee in need, or a hospital that does not act to counter a life-threatening illness in a patient. It is not commonly deployed against central government on the basis of a decision said to have denied basic medical attention to whole sections of the population.


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The Round Up: Prorogation, Kashmir, and Protests

2 September 2019 by

Conor Monighan brings us the latest updates in human rights law

guardian

Credit: The Guardian

In the News:

Last week, Boris Johnson decided to ask the Queen to prorogue (suspend) Parliament. The decision means that Parliament will be closed for 23 working days, reducing the amount of time MPs will have to pass legislation about Brexit.

Supporters of PM Johnson pointed out that Parliament has already been sitting for around two years. They have also suggested that proroguing Parliament is entirely proper because it is simply an exercise of a prerogative power. Finally, they argue that it will allow the government to hold a Queen’s Speech and outline its plans.

A number of figures spoke against the move:

  • Tom Watson (Labour) stated proroguing Parliament was an “utterly scandalous affront to our democracy”.
  • Nicola Sturgeon (SNP) has asked that MPs work together to stop Mr Johnson, or “today will go down in history as a dark one indeed for UK democracy”.
  • Dominic Grieve (Conservative) described it as “an outrageous act”.
  • Anna Soubry (Independent Group for Change) tweet that it was “outrageous that Parliament will be shut down at a moment of crisis as we face crashing out of the EU with no deal & for which there is no mandate”.

Ruth Davidson, who had been the leader of the Conservative Party in Scotland, quit. She said her decision was driven by political reasons and personal ones (she recently had a baby). The government whip, Lord Young, also resigned.

Demonstrations took place over the weekend. A judicial review, led by Gina Miller and her legal team, is also being launched.

Following the summer recess, MPs will return to Parliament on the 8th October.

In Other News….

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The line between legitimate protest and anti-social behaviour

30 August 2019 by

Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.

The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?

There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council [2019] EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.

The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.


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Judicial review against prorogation of Parliament launched

28 August 2019 by

The day began with the news that the Prime Minister Boris Johnson had asked the Queen to prorogue (suspend) Parliament in order to table a Queen’s Speech — with the effect that the number of days that MPs would sit between now and Brexit Day on Halloween being significantly reduced.

Tonight, Gina Miller, the successful claimant in the case challenging Theresa May’s attempt to trigger Article 50 and begin the process of leaving the EU without a vote in Parliament, announced that she has reassembled the same legal team and launched a legal challenge to this move.

On Newsnight (see 31 mins, 20 seconds into this episode), former Supreme Court Justice Lord Sumption said that whilst he considered what Boris Johnson has done to be politically “shocking”, he did not expect the courts to block the move, saying that

I think that it’s a very very long shot. This is such an unusual situation that nobody can stand here and say what the answer is definitely going to be, but there are huge difficulties in the way of an application like that … the relations between the Crown and Parliament are governed by conventions … [which are] binding only in the sense that it would be politically costly to disregard them … the courts are not there to decide what are good political reasons and what are bad political reasons, they are there to decide what’s lawful.

We shall have to wait to see what happens next.

No Deal Brexit risks reversing human rights progress in extradition law

28 August 2019 by

The UK Government’s vow to leave the European Union “whatever the circumstances” on the 31st October has left the UK hurtling towards a no-deal Brexit this Halloween, but what does this mean for the rights of people subject to future extradition between the UK and the EU?

For the last 15 years, extradition between EU states has functioned under the European Arrest Warrant (EAW). The EAW is a fast track extradition measure that works on the basis of mutual recognition — the principle that the decision of a court in one Member State is carried out by the courts in another Member State.

Despite appearances in the negotiations, this is one area where the UK and the EU seem to agree on the need for continued close cooperation that largely mirrors current arrangements — the Political Declaration agreed by the UK and the EU envisaged ‘efficient and expeditious’ extradition arrangements.


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