With a third rejection of Theresa May’s deal on Friday, Brexit remains a dismal subject. Dismal not only for its economic but for its human rights implications: this week, the Parliamentary Joint Committee on Human Rights published its report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The report (available here) raises concerns about legal limbo for the 3m EU citizens remaining in the UK post-Brexit. In particular, it makes the following recommendations:
The bill in its present form is a ‘blank cheque’ affording ministers excessive discretion to remove rights. The JCHR recommends an amendment requiring the Secretary of State to ensure that any regulations contain measures to protect the acquired rights of persons who benefited from EU free movement of persons prior to Brexit.
The EU Settlement Scheme is unclear on the implications of failure to register the time limit. The JCHR recommends provisions for registration outside the time limit, and/or otherwise to limit the implications of the time limit.
The EU Settlement Scheme in its present form would issue only electronic proof of a successful application. The JCHR recommends the issuing of physical proof, echoing the EU Justice Committee in a comparison to the Windrush scandal on this point.
Vulnerable people may have difficulty in accessing the EU Settlement Scheme. The JCHR recommends that steps be taken to ensure that vulnerable people are aware of their rights, and have assistance in accessing the scheme.
Finally, the JCHR recommends clarification of the Common Travel Area for Irish citizens.
A white supremacist murdered 50 worshippers and injured 50 more in two consecutive terrorist attacks at mosques in Christchurch, New Zealand during Friday Prayer on 15 March 2019. The victims’ ages ranged from 3 to 77. Immediately prior to the attacks, the perpetrator emailed a 73-page manifesto to more than 30 recipients, including several media outlets and the office of Prime Minister Jacinda Arden. It expressed anti-immigrant hate speech, white supremacist rhetoric, and an unequivocal statement that the motive behind the attacks was to accelerate anti-Muslim and anti-migrant sentiment across majority white nations.
We have had the rare opportunity to interview a high court judge in South Africa. Mr Justice Steenkamp is a member of the specialist branch of the high court bench which reviews employment decisions from the lower courts on their way to the appeal courts and ultimately the Constitutional Court. In a country where people are plentiful and employment is scarce, strike action, even protests protected under the Constitution, is fraught with difficulty, particularly where violence abounds and the police force is inactive or overwhelmed. Rosalind English speaks to Labour Court Judge Steenkamp in his chambers at the Labour Court in downtown Cape Town. Citations for the cases referred to in the interview are set out below, along with the relevant legislation.
Today (21 March) the Royal College of Physicians (RCP) has dropped its opposition to assisted dying and moved to neutrality. The RCP has opposed assisted dying since 2006 but has now brought its position in line with the range of views held by its members, and with the 82% of the public who want greater choice at the end of life. Today’s result is a great victory for patients and for the campaign group Dignity in Dying. Their full press release can be found on their website and a breakdown of the results is available on the RCP website.
On 20 March Dignity in Dying released a report exposing the fact that those behind the legal challenge to the RCP (detailed below) have a long history of campaigning for pro-life causes and connections to American pro-life lobbyists, the Alliance Defending Freedom (ADF).
Rose Slowe is an Honorary Research Fellow at University of Bristol Law School, an author on EU law, and a barrister at Foundry Chambers.
Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.
The Miller litigation, while lacking in a critical respect, as discussed elsewhere on the Blog, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate.
The Divisional Court in R (Chidlow) v HM Senior Coroner for Blackpool  EWHC 581 has given a concise and authoritative judgment reiterating and summarising the current common law concerning causation in inquests. Given the ever increasing importance of inquests and their conclusions as preliminaries to civil litigation, as well the growing number of inquests being held into historical deaths, the judgment will doubtless be frequently cited over the coming months and years.
Mr Childlow brought the judicial review following the inquest into the death of his brother (Carl Bibby). Mr Bibby died from a cardiac arrest in circumstances where an ambulance had been called, but there were admitted delays in the ambulance attending. At the inquest, the jury heard evidence from a consultant in Critical Care & Emergency Medicine that had paramedics attended Mr Bibby before he suffered cardiac arrest, he would, on the balance of probabilities, have survived. Nevertheless, the coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby’s death to the jury. Mr Chidlow sought a declaration that the coroner acted unlawfully, an order quashing the record of inquest and an order that a fresh inquest be held before a different coroner.
Conor Monighan brings us the latest updates in human rights law
In the News:
The Independent Inquiry into Child Sexual Abuse (IICSA) heard evidence about Sir Cyril Smith, the former MP for Rochdale. It has been alleged that Sir Cyril Smith abused boys in the 1960s at a school and hotel. The allegations were investigated by the police, but no further action taken.
Lord Steel, the former Liberal leader, gave evidence to the Inquiry. He explained that an article in Private Eye caused him to approach Cyril Smith about the allegations. Lord Steel said that, following this conversation, he “assumed” the allegations were true.
Lord Steel explained he had decided not to act because the accusations were “nothing to do with me”. He “saw no reason to go back to something that happened during his time in Rochdale” and the events happened “before he was even a member of the Liberal Party or an MP”.
Lord Steel’s comments sparked anger and he has been suspended from his party. He has since stated that the matter was properly an issue for the police and the council, and that he was not in a position to re-open the investigation.
KV (Sri Lanka) v Secretary of State for the Home Department UKSC 10
How likely is it that an asylum seeker, in order to support a false asylum claim, invited another person to inflict him with serious burn wounds under anaesthetic?
This startling possibility – wounding “self-inflicted by proxy” (SIBP) in the jargon – was the subject of this extraordinary appeal. The Supreme Court concluded that injury SIBP was “likely to be extremely rare.” In the process, it gave important guidance on the treatment of expert medical evidence in asylum cases.
The Claimant became pregnant in 2012 but, tragically, the baby died in utero and was stillborn in May 2013. The Claimant claimed damages to represent the loss of the pregnancy and also for a psychiatric injury which she suffered due to the stillbirth.
The NHS Trust admitted that their treatment of the Claimant was negligent and that they were responsible for the stillbirth. The only issue in the case was the amount (quantum) of damages.
The application for anonymity
The Claimant applied for an anonymity order
to prohibit press outlets from using her name. It would not have prohibited the
press from reporting on the legal proceedings themselves.
The Claimant argued that this should be granted because the trial included deeply personal matters concerning her mental health, medical history and her relationship with her two children. Identifying her would inevitably lead to identification of her children. It was also added that, in the age of social media, she might face the risk of receiving abuse and that, given her Polish background, this might even extend to racial abuse.
Importantly, the Claimant was not a child or a ‘protected party’ i.e. someone who is judged by a medical professional to not have full capacity. But she was described as a “highly vulnerable individual.”
Frances Gibb recently retired from nearly forty years spent as law correspondent, editor and columnist at The Times. In Episode 72 she tells Rosalind English about some of the more bracing encounters with government lawyers and judges in the past, and reflects on the many changes that have taken place in the media and legal institutions since she took over from Marcel Berlins in the 1980s.
Law Pod UK is available on Audioboom, iTunes, Spotify, Podbean or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.
After some quieter times earlier in the year, last week saw no fewer than two Supreme Court judgements and twenty Court of Appeal (Civil Division) decisions.
However, the dominant legal and political story of the week (the ubiquitous Brexit aside) concerned criticism of the Home Secretary Sajid Javid, after reports emerged about the death of the child of Shamima Begum. The 19-year-old left East London to travel to Syria and join the Islamic State aged 15. Javid had stripped Begum of her British Citizenship on the basis that she was a dual national of Bangladesh. News broke this morning that the Home Office had removed citizenship from a further two individuals who had left under similar circumstances.
The case of Begum has shed light not only on the rights and powers of the Home Secretary to strip individuals of citizenship, but also on the tragic consequences of armed conflict. Child mortality across the whole of Syria was four times that in the UK at 17 per 1000 live births in 2017, with the situation in refugee camps likely far worse given the absence of heating or adequate shelter. Ms Begum’s son appears to have died of pneumonia, an easily preventable disease which remains the biggest killer worldwide of children under five, accounting for 1.4 million fatalities a year. Whilst there may be debate as to the practical ability of the Foreign Office to provide consular assistance in war zones and the legality of her deprivation of citizenship, Ms Begum’s case illustrates the tragic realities of armed conflict and its consequences upon innocent lives.
In a potentially bad week for cabinet ministers, criticism also flowed the way of Karen Bradley, Secretary of State for Northern Ireland, after she described deaths caused by the police and armed forces in Northern Ireland as “not crimes”. The comments caused consternation amongst nationalists and the relatives of those who had lost their lives and comes ahead of an expected announcement by the Public Prosecutions Service as to whether it will seek prosecutions against soldiers in relation to the deaths of 13 people in Derry on Bloody Sunday.
Jordan, Re for Judicial Review (Northern Ireland)  UKSC 9. In a further legacy case arising from the conflict in Northern Ireland, the Supreme Court allowed the appeal of the father of a man shot dead by the Royal Ulster Constabulary, overturning the finding of the Court of Appeal that his claim for damages in relation to delays to his son’s inquest could not be awarded until the inquest’s conclusion. The Police Service of Northern Ireland had failed to disclose information in a timely manner to the inquest into the death of his son, in breach of the requirement under Article 2 of the European Convention on Human Rights that an investigation into a death should begin promptly and proceed with reasonable expedition. Applying the principle of proportionality to the case, particularly given the fading health of the claimant, the Supreme Court overturned the Court of Appeal decision and awarded him the damages sought.
Meanwhile, the Court of Appeal gave judgment this week in nine cases with a human rights flavour. Given the volume, only some of the more interesting are summarised below:
An application for judicial review into the Home Office’s guidance regarding its counter-terrorism “Prevent” strategy, in particular that in relation to speakers at universities and the collecting of data by the Home Office’s Extremism Analysis Unit, was largely rejected in Butt, R (On the Application Of) v The Secretary of State for the Home Department. The appeal against the initial decision to dismiss the application was brought by Dr Salman Butt, editor in chief of “Islam21C”, who has been labelled a “hate speaker” by the Prime Minister’s Office and Home Office. Mr Butt had alleged interference with his right of free speech under both the common law and Article 10 of the European Convention on Human Rights, as well as his privacy rights under Article 8.
The Home Office successfully appealed in the case of a Liberian gentleman who had sought a permanent residence card by virtue of his durable relationship with a Czech national. His appeal against the Secretary of State’s rejection of his application had been upheld in the first-tier and upper tribunals. The Court of Appeal however agreed with the Home Office that his entitlement to a permanent residence card only arose five years after the initial granting of a residence card, and did not take effect from an earlier date when he may have been in the country or in a relationship with an EU citizen: Secretary of State for the Home Department v Aibangbee  EWCA Civ 339. The Home Office had continued the appeal to secure the point of law despite the case becoming moot as between the parties, enough time having expired by the time of the hearing to make Mr Aibangbee eligible.
An appeal by the newspaper group MGN limited against the decision of a High Court judge not to vary the terms of an order requiring early disclosure was rejected: Various Claimants v MGN Ltd  EWCA Civ 350. The newspaper group had submitted that the order gave rise to a real risk, in the case of one claimant, that it would have to disclose material which would reveal the identity of a confidential journalistic source, contrary to protections enjoyed by publishers under section 10 of the Contempt of Court Act 1981.
A prisoner convicted of terrorist offences, namely plotting to behead a member of the public around the time of Armistice Day 2015, who alleged that his transfer to a “Managing Challenging Behaviour Unit” constituted a “removal from association” with other prisoners had his appeal dismissed. The Court similarly dismissed the Secretary of State for Justice’s cross-appeal against the findings of an earlier court that such restrictions did amount to an interference with his right to respect for private life under Article 8(1) of the European Convention on Human Rights and therefore required justification under Article 8(2): Syed v The Secretary of State for Justice  EWCA Civ 367.
The Court of Appeal has turned down an appeal against an application seeking judicial review of May’s triggering of Article 50 under the power granted to her by the European Union (Notification of Withdrawal) Act 2017. The applicants sought a declaration that this was unlawful because it was
based upon the result of a referendum that was itself unlawful as a result of corrupt and illegal practices, notably offences of overspending committed by those involved in the campaign to leave the EU
On 10 December 2018, Ouseley J refused permission to proceed with the judicial review on the basis of both delay and want of merit, and ordered the Applicants to pay the Respondent’s costs. This was a hearing for permission to appeal against that order. Permission was refused.
In February 1993, two-year-old James Bulger was abducted, tortured and then murdered by two 10-year-olds, Jon Venables (JV) and Robert Thompson. As Sir Andrew McFarlane P says in the opening words ofVenables & Anor v News Group Papers Ltd & Ors  EWHC 494 (Fam) (4 March 2019): ‘The family of young James Bulger were and are deserving of the greatest sympathy as the indirect victims of this most horrific crime.’ It was James’s father and his uncle who brought the question of publicity – or not – for JV back to court.
Their application was to vary a ‘confidentiality’ injunction. The application was made on the basis – said the applicants – that JV’s name and image are now freely available should any member of the public undertake an Internet search. Details of his identity, and locations with which he has been connected in the past, have therefore become ‘common knowledge’.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.