The right to die – who decides?

9 July 2018 by

nintchdbpict000310400808In R. (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 the Court of Appeal held that the blanket ban on assisted suicide in the Suicide Act 1961 s.2(1) was a necessary and proportionate interference with the ECHR art.8 rights of the appellant.

The appellant had proposed an alternative scheme for assisted suicide containing certain conditions and safeguards, including the approval of a High Court judge, for those who were terminally ill and had less than six months to live. However, it was held that the alternative scheme would not be effective and raised wide-ranging policy issues that would be better dealt with by Parliament.

The Court identified the origin of the case as being that the Claimant has a prognosis of six months or less to live and wishes to have the option of taking action to end his life peacefully and with dignity, with the assistance of a medical professional, at a time of his choosing, whilst remaining in control of the final act that may be required to bring about his death. However, Section 2(1) of the 1961 Suicide Act makes it a criminal offence to provide encouragement or assistance for a person to commit suicide.

Mr Conway therefore sought a declaration of incompatibility under section 4 of the HRA , on the basis that the ban on assisted suicide was a disproportionate interference with his right to respect for his private life under Article 8 of the Convention (“Article 8”).

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The Belhaj finale: Exclusion of closed material procedure means less scrutiny of DPP decisions — Nicholas Clapham

5 July 2018 by

supreme courtThe rendition to Libya in 2004 of Mr Belhaj and his wife, Mrs Boudchar has given rise to a series of important cases in the domestic courts. In Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 the Supreme Court unanimously ruled that the doctrine of state immunity did not operate to bar claims against the Government arising from their detention (as discussed in these pages by Dominic Ruck Keene).

Recently the parties in the Belhaj case have reached a mediated settlement and this action is at an end. Although the settlement was concluded without admission of liability, the Prime Minster issued an apology which included the following statement:

The UK Government’s actions contributed to your detention, rendition and suffering. The UK Government shared information about you with its international partners. We should have done more to reduce the risk that you would be mistreated. We accept this was a failing on our part.

 

The Remaining Case

Despite the end of those proceedings, a procedural argument remained extant which concerned the applicability of closed material proceedings to judicial review in certain cases. In Belhaj and another v Director of Public Prosecutions and another [2018] UKSC 33 (4 July 2018) the Appellants sought judicial review of a decision not to prosecute a person said to be a member of the British Secret intelligence Service.

Although the matter was then settled before judgment, the Court decided that this issue required authoritative determination in light of its importance.

The allegation was broadly one of connivance in the Appellant’s abduction, ‘rendition’ and maltreatment (although Her Majesty’s Government neither confirmed nor denied such involvement during the proceedings). The Crown Prosecution Service decision was made on the basis of 28,000 documents, none of which were disclosed to the Appellants due to their security classification.

The issue for the Court was whether this material could be received during judicial review proceedings using the closed material procedure by which the material is disclosed to the court and a special advocate but not the Appellants.

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How much of a groundbreaking decision is the CJEU’s judgment for transgender rights? – Thibault Lechevallier

3 July 2018 by

European-Court-of-Justice

IMB v Secretary of State for Work and Pensions ,26 June 2018 

Weeks after ruling against certain sexual orientation tests for asylum seekers and finding that EU Member States must recognise the free movement rights of gay spouses, regardless of whether same-sex marriages are solemnised therein, the European Court of Justice (ECJ) held that the UK requirement for transgendered persons to be unmarried in order to qualify for a State pension at the retirement age of their current gender violated EU law.

Background facts

The claimant, identified as MB, is a male-to-female married transgendered person, i.e she was assigned the male sex at birth, but identifies as female. After being recognised as female on both passports and driving licenses issued by UK authorities, MB underwent sex reassignment surgery in 1995. She did not, however, obtain a Gender Recognition Certificate under the Gender Recognition Act 2004.
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Round Up: detainees, Grenfell, and discrimination in UK pension law.

2 July 2018 by

In the News:

The Intelligence and Security Committee found that the UK had allowed terrorism suspects to be treated unlawfully.

Following a three-year investigation, it published two reports examining the extent to which Britain’s intelligence agencies were aware of the mistreatment of suspects. The reports found no evidence that British officers took part in the torture themselves. Neither was there clear evidence of a policy which sought to deliberately overlook mistreatment.

However, the Committee found that British intelligence officers had witnessed prisoners being tortured. They had seen detainees being mistreated at least 13 times, were told by prisoners that they were being abused at least 25 times and were informed of ill-treatment by foreign agencies 128 times. British agents also threatened detainees in nine cases.

Despite being aware of the mistreatment from an early stage, UK agencies continued to provide questions for interrogations. The Committee chairman, Dominic Grieve, said that the UK had tolerated ‘inexcusable’ actions.

Furthermore, British agencies assisted in the rendition of suspects to countries with ‘dubious’ human rights records. MI5 and MI6 subsidised, or offered to subsidise, the rendition of individuals on three occasions. They also provided information for the rendition of 28 people, proposed/ agreed to rendition in 22 cases and failed to stop the rendition of 23 others (including cases involving British nationals).
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Equality won’t wait – Supreme Court rules in Equal Civil Partnership

28 June 2018 by

Civil-partnership-sign-495x495As predicted on this Blog, the Supreme Court has made a declaration of incompatibility covering sections one and three of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership).

In Steinfeld and Keidan, R (on the application of) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (27 June 2018) the Court found that the provision was contrary to article 14 of ECHR taken in conjunction with article 8 of the Convention.

To an extent, this was not a surprise as, by the time the case reached the Supreme Court, the government had conceded that the current situation in which same sex couples have had a choice between marriage and civil partnership since 13th March 2014, whereas heterosexual couples only have the option of marriage, is discriminatory.

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Law Pod UK latest on Brexit

26 June 2018 by

Two years from the vote to leave the European Union, Catherine Barnard, Professor of EU Law at Cambridge, considers the rocks and hard places of the Brexit negotiations. She speculates on what is meant by what exactly is meant by staying “within the remit of the CJEU”, something that has drawn a lot of fire, but has no legal meaning.

We may all be jaded with Brexit coverage. But do listen to Catherine’s podcast, it is remarkably unpartisan and clear on the facts.

Catherine’s series 2903cb is freely available on soundcloud and our repost is on iTunes and other podcast platforms, Episode 38 of Law Pod UK.

The ‘straight civil partnership’ challenge: All you need to know before the Supreme Court Judgment

25 June 2018 by

supreme courtThe Supreme Court will hand down Judgment on Wednesday 27th June 2018 in R (on the application of Steinfeld and another) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary).

The claimants are Rebecca Steinfeld and Charles Keidan who contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. They do not want to enter into marriage as they say that it is patriarchal and is not consistent with their values.

The Civil Partnership Act 2004 created a regime for the recognition of same sex relationships modelled on that in Vermont which pretty much entirely replicated the rights and responsibilities available through marriage. One of the only anomalies was a less favourable provision for survivor benefits from an occupational pension but even that was equalised courtesy of the Supreme Court in Walker v Innospec Ltd.

The exclusion of different sex couples from Civil Partnership started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of that was that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

This Blog has covered the story of the Steinfeld from the very beginning. The original hearing was in front of Mrs Justice Andrews and the arguments were examined by Professor Rob Wintemute in these pages. Ultimately, as reported by Adam Wagner, Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

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Bars to the Bar: Diversity in the Legal Profession Before the Canadian Supreme Court – Michael Rhimes

21 June 2018 by

On 15th June 2018 the Canadian Supreme Court handed down two interesting and closely related judgments involving Trinity Western University: Law Society of British Columbia v Trinity Western University and Brayden Volkenant 2018 SCC 32 and Trinity Western University and Brayden Volkenant v Law Society of Upper Canada 2018 SCC 32

Trinity Western University (TWU) is a Christian University – indeed, in its own words, it is “a distinctly Christian university” (here, page 2). It takes “the Bible as the divinely inspired, authoritative guide for personal and community life” (here, page 1) and seeks“to develop godly Christian leaders”.

Prospective TWU students must sign a ‘Community Covenant’. That Covenant requires them to commit to “reserve sexual expressions of intimacy for marriage” and abstain from“sexual intimacy that violates the sacredness of marriage between a man and a woman” (here, page 3). This rule applies both on and off campus(the Abstinence Rule, see paras [1] and [319]).

The Law Society of British Columbia (LSBC) refused to approve TWU’s faculty of Law because of the Abstinence Rule (I will call this the Decision). The question before the Supreme Court of Canada was whether this was lawful. The issue in Law Society of Upper Canada dealt with a similar decision of the Law Society of another province(Ontario)to approve the TWU law school.  
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Slamming the door on system failure in medical negligence inquests – Jeremy Hyam QC

19 June 2018 by

R (Parkinson) v. HM Senior Coroner for Kent and Others – read judgment
If anyone had the lingering hope that the door to argue “system failure” in any but the most exceptional case of medical negligence remained ajar after the decision of the Grand Chamber in Lopes de Sousa, then the recent Divisional Court decision in Parkinson  shows the door has been well and truly slammed shut.
Background facts
On 9th January 2011 Mrs Kathleen Parkinson died at the A & E Department of Darent Valley Hospital. She was aged 91 and dying. She had been taken to hospital by her son. On arrival in A & E she was assessed by a nurse and then by a Dr Hijazi. Dr Hijazi formed the view that she was dying, that there was no useful treatment that could be given her, and that as she was in the last moments of life, doing anything would not have been beneficial to her.  Her son who, wanted her to be treated, became aggressive and eventually attempted to perform mouth to mouth resuscitation although advised against this by A and E staff. Mrs Parkinson deteriorated rapidly and died soon after arriving.
An inquest was convened and although Article 2 was kept under review throughout the inquest, the Coroner determined that it was not an Article 2 inquest.  He rejected the submission that he ought to enter a verdict of gross negligence manslaughter and found that Mrs Parkinson died of natural causes and that any additional treatment that could have been provided to her in the short time she was at the Darent Valley Hospital would have been ineffective given the advanced stage of dying she was in. He refused the request to provide a report on the prevention of future deaths under paragraph 7, Schedule 5 of the Coroners’ Justice Act 2009.

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Supreme Court rules on true employment status of a contractor in Pimlico Plumbers case

18 June 2018 by

Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29 – read judgment

The Supreme Court has unanimously dismissed Pimlico Plumbers Ltd’s appeal and upheld the Employment Tribunal’s ruling that the Respondent – Mr Smith – a plumbing and heating engineer had been:

(a) a “worker” within the meaning of section 230(3) of the Employment Rights Act 1996;

(b) a “worker” within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833)

(c) in Pimlico’s “employment” within the meaning of section 83(2)(a) of the Equality Act.

Questions concerning the true employment status of individuals who are presented to the paying customer as being an integral part of the business in question are increasingly common. Despite being presented to the end customer as such, the purported legal reality is that the individual is self-employed for both tax and employment law purposes. This is partly what is described by such arrangements being part of the so-called “gig economy”.
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Home Office to pay damages for detention of immigrant claimant

18 June 2018 by

R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260 – read judgment

The Court of Appeal has upheld an award of damages for false imprisonment in the context of immigration detention.  The Court found that an unlawful curfew which required residence at a specific address between specific hours each day and which was backed by the threat of criminal sanctions and electronic tagging gave rise to the tort of false imprisonment.

Background law and facts

The claimant was released from prison in 2013 and then detained in an immigration centre.  He was then released on bail which came with restrictions on where he could live.  When the bail period ended, the secretary of state tried to maintain these residence restrictions.  She purported to use her powers under the Immigration Act 1971 Schedule 3 Paragraph 2(5) to impose a curfew on the claimant which required him to stay at his home address between 11pm and 7am every day.  The claimant was fitted with an electronic tag and told that he would face a fine or imprisonment if a court found that he did not comply with the terms of the curfew.  This curfew was in place for two and a half years, from February 2014 until July 2016.
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Inquiries and Inquests seminar highlights now available on Law Pod UK

15 June 2018 by

In Episode 35 Matthew Hill discusses the lessons and warnings from the Bloody Sunday inquiry and the Hillsborough inquest in a talk recorded at One Crown Office Row’s 2018 seminar.

In Episode 36 , drawn from the same seminar, Emma-Louise Fenelon discusses the challenges around secrecy, anonymity and public information in major inquests and inquiries

In Episode 37  Gideon Barth considers when public inquiries are established or inquests reopened.

 

Law Pod UK is available for free download from iTunes, The Podcast App, Overcast, Audioboom and a number of other podcast platforms. Please rate and review us to help LawPodUK continue to grow. 

Supreme Court rules on challenge to abortion ban in Northern Ireland

11 June 2018 by

supreme courtIn the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27

On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.

The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.

In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.

Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.

 

The Background

The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.

These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:

The prohibition of abortion in cases of

  • Serious malformation of the foetus;
  • Pregnancy as a result of rape; and/or
  • Pregnancy as a result of incest

was argued to be incompatible with

  • Article 3 (the prohibition of torture and of inhuman or degrading treatment);
  • Article 8 (the right of everyone to respect for their private and family life); and/or
  • Article 14 (the prohibition of discrimination)

In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:

  • Fatal foetal abnormality
  • Rape up to the date when the foetus is capable of being born alive
  • Incest up to the date when the foetus is capable of being born alive

The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.

The NIHRC appealed to the Supreme Court in London.

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New Podcast: Will AI outwit our laws?

7 June 2018 by

In Episode 34 of Law Pod UK, Rosalind English talks to Professor Karen Yeung of Birmingham University about questions of civil liability of algorithm-run systems, the difficulties of regulating something we cannot truly predict, and the so-called “alignment problem” – how to align the utility function of intelligent machines with the values of the human race, which are very difficult to define.

Professor Yeung is Interdisciplinary Fellow in both the Law and Computer Science Schools at Birmingham, and recently gave evidence before the House of Lords Select Committee on AI. We posted on the report ‘AI in the UK: ready, willing and able?’ in April.

Law Pod UK is available for free download from iTunes, Overcast and Audioboom.

The “gay marriage” case that never was: Three thoughts on Coman, Part 2 – Michael Rhimes

6 June 2018 by

Michael Rhimes is the fourth référendaire to Judge Vajda at the Court of Justice of the European Union. He was not involved in the Coman case. This blog post is written in a purely personal capacity and reflects only the author’s views.

 

I have three points on the judgment, which is summarised in part 1.

1. A narrow judgment: A free movement case, not a gay marriage one.

The judgment is a narrow one. On a basic level, for the “Coman” rule to be engaged, a number of conditions must be satisfied:

    1. At least one of the parties to the marriage must be a Union national;
    2. One of the Union nationals in question must have exercised their free movement rights (otherwise Article 21 TFEU will not be engaged, see C-434/09 McCarthy, paras 49 to 55)
    3. The couple must be married in a Member State that solemnises same-sex marriage.

In addition, the reasoning of the Court focuses on the right to free movement in Article 21 TFEU. The Coman judgment is not one that is predicated upon the growing recognition of same-sex marriage within the EU (on this, see my third comment, and para 56 to 58 of the Opinion) or, indeed, on fundamental rights (on this, see my second comment). Member States have to recognise the third country same-sex spouse of a Union citizen, but only so that Union citizen may freely exercise their free movement rights.
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