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An Extinction Rebellion protester is removed by police in central London. Credit: The Guardian.
As the general election campaign accelerated this week, the political fall out from the publication of the Grenfell Tower Inquiry contributed to some awkward headlines for both politicians and lawmakers. However, this was by no means the only legal news of the week…
The case turned on the lawfulness of the exercise of powers by the police under section 14(1) of the Public Order Act 1986 to ban XR’s protests earlier this month.
The court ruled that in exercising section 14 powers, the police were required to identify a location to be covered by the powers conferred by the Act. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, were not held to be one public assembly within the meaning of section 14(1). Consequently, the decision of the police to impose the condition across a wide area of London for several days was unlawful, being outwith the powers conferred by section 14(1).
The Children Act 1989 (CA 1989) received Royal Assent on 23
November 1989 (30 years ago); and it was in force from October 1991. It was a
major reform of children law which required everyone – parents, children (when
of ‘understanding’), judges, social workers, health professionals and lawyers –
to learn a new set of legal concepts and attitudes. But what about children’s
rights? And what has happened to the law’s regard for those rights since 1989?
The Act required courts to consider a child’s ‘wishes and
feelings’ when that child’s welfare was in issue in a court. In parallel with
this, United Nations Convention on the Rights of the Child 1989 Art 12.1 –
though not formally part of the Act – says:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
On Wednesday last week I had the great pleasure of speaking to a fellow South African, which we post in this week’s episode of Law Pod UK. I promise there are no references to rugby in the entirety of the interview. How could we have predicted anything anyway?
Kate O’Regan is the Director of the Bonavero Institute of Human Rights at Oxford University. She is also a former judge of the South African Constitutional Court (1994 – 2009). One fellow judge has said that she is “one of the finest minds ever appointed as a judge in South Africa”.
Our discussion ranges over a multitude of topics, such as the difficulty of reconciling customary law practices with the rights of women under the Bill of Rights, and the problem of enforcing the rule of law in the townships and on public transport in a country where most people are dependent on the state owned Metrorail to get to their place of work.
This post, along with those before it, summarises some of the main points of interest arising from the ALBA Conference 2019.
‘Reith Lecture (Judicial Power) Response’ – Chair: Mrs. Justice Thornton; Speakers: Lord Dyson, Sir Stephen Laws, Prof Vernon Bogdanor, Prof Meg Russell, Lord Falconer of Thoroton QC
A prestigious panel offered its response to Lord Sumption’s Reith Lectures, followed by a reply from Lord Sumption himself.
In his lectures for the BBC, Lord Sumption argued that judges have excessively increased their power and invaded into the political sphere. The Human Rights Act 1998 and Judicial Review attracted particular criticism.
Lord Sumption’s original lectures are available from the BBC here. A recording of the full discussion is available on LawPod here, so this post draws out some of the key points.
Firefighters were let down by poor training, leadership, equipment and plans. Junior firefighters arriving at the scene were “faced with a situation for which they had not been properly prepared”.
The ‘stay put’ advice used by the London Fire Brigade was wrong, and cost lives.
The report recommends that national guidelines for evacuating high-rise flats are created. It also seeks for a programme of regular inspections of high-rise flats and lifts
The Commissioner of the London Fire Brigade, Dany Cotton, attracted particular criticism from the media. Ms Cotton had said that although she was saddened by the loss of life, there was nothing she would have done differently. Sir Martin Moore-Bick, the Chair of the Inquiry, described her as showing “remarkable insensitivity” and suggested this showed an inability to learn from the tragedy.
The use of algorithms in public sector decision making has
broken through as a hot topic in recent weeks. The Guardian recently ran the “Automating
Poverty” series on the use of algorithms in the welfare state. And on 29
October 2019 it was reported
that the first known legal challenge to the use of algorithms in the UK, this
time by the Home Office, had been launched. It was timely, then, that the
Public Law Project’s annual conference on judicial review trends and forecasts
was themed “Public law and technology”.
Basic tech for lawyers
The conference helpfully opened with a lawyer-friendly run down of algorithms and automation. Dr. Reuben Binns (ICO Postdoctoral Research Fellow in AI) drew a number of useful distinctions.
The first was between rule-based and statisticalmachine learning systems. In rule-based systems, the system is programmed to apply a decision-making tree. The questions asked and the path to a particular outcome, depending on the answers given, can be depicted by way of flow-chart (even if that flow-chart might be very large, involving numerous branches). In contrast, statisticalmachinelearning involves a computer system training itself to spot patterns and correlations in data sets, and to make predictions based on those patterns and correlations. The computer system is first trained on data sets provided by the system designer. Once trained, it can be used to infer information and make predictions based on new data. These systems might be used, for example, to assess the risk of a person re-offending, where the system has been trained on existing data as to re-offending rates. It has long been known that machine-learning systems can be biased, not least because the data on which they are trained is often biased.
This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.
‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight
Catherine Dobson: Costs in Public Interest Litigation
Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.
Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.
Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.
The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently published a report on police and prison facilities in Scotland after its visit in 2018.
This was an ad hoc visit and it aimed to evaluate the developments made since the CPT’s last visit to Scotland in 2012. The CPT’s delegation visited five police custody facilities and five prisons across Scotland. The report covers several areas, including the treatment of detained persons in police facilities, the conditions of male prisons, inmates in segregation and those on remand. It also focused on female prisons in general, and healthcare.
Police custody facilities
Overall, the CPT’s delegation was satisfied by the conditions and treatment in the police facilities that it visited. Every detained person that they interviewed reported that they had been correctly treated whilst in custody. However, an area of concern was the number of detainees who made allegations that they had suffered ill-treatment at the time of their arrest. Around one third of the detained persons alleged that they experienced excessively tight handcuffing and physical abuse by police officers. Several also claimed that they experienced this treatment despite not resisting arrest. The delegation reported that many of those making the allegations had visible signs of injury, such as bruises, scratches, and swelling.
This has been a turbulent week for Brexit.
Despite gaining approval for his adapted version of Theresa May’s deal, Boris
Johnson has been unable to secure approval for his Brexit timetable, with a
narrow consensus in Parliament that the deal requires longer scrutiny.
Meanwhile, EU leaders have granted permission for a further extension to
Article 50 until 31st January 2020, in response to the letter sent
by the Prime Minister to comply with the Benn Act. Leaving on October 31st
is no longer possible; Parliament is preparing for a December general election.
Even before Lady Hale and her spider brooch rose to national prominence following media coverage of Miller (No 2), she was something of a hero amongst female lawyers. A trailblazer in the profession, she was the first women appointed to the Law Commission, the first female Law Lord and the first female president of the Supreme Court. But it isn’t just Lady Hale’s rise through the ranks of the male-dominated legal profession that is inspirational. It is also the use she has made of the positions she has attained.
While at the Law Commission, Lady Hale played a significant role in the landmark reform that was the Children Act 1989. This placed the “best interests” of the child at the centre of public sector decision-making and represented a huge step forward for children’s rights. Amongst the many progressive and illuminating judgments penned by Lady Hale in the House of Lords and the Supreme Court, one of the most important is arguably the decision in Yemshaw v London Borough of Hounslow. In this case she held that domestic violence is not limited to physical violence. Lady Hale’s contributions provide a shining example of the importance of diversity in positions of power within the legal world. It cannot be doubted that she has brought a new perspective to bear that has enriched law-making in this country.
This post, and those that follow it, summarises some of the main points of interest arising from the ALBA Conference 2019.
‘The Constitutionality of Ouster Clauses’ – Chair: Lord Justice Leggatt; Speakers: Professor Alison Young, Professor David Feldman, Professor Stephen Bailey
s.67(8) of RIPA contains a so-called ‘ouster clause’, which held that “determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”.
The issue in Privacy International was whether decisions made by the IPT were judicially reviewable. A majority of the Supreme Court held that s.67(8) did not, in fact, oust the jurisdiction of the court. The panel analysed this crucial case in more detail.
The debate about the proper role of judges in our democracy has taken on the shape of the political landscape in which we find ourselves: pitched between two distant poles. Lord Sumption’s Reith lectures put forward the thesis that the courts have been getting more powerful while politics has been getting less powerful; he criticises this perceived shift, holding that while ‘law has its own competing claim to legitimacy … it is no substitute for politics’. Lady Hale’s recent response rejected ‘the suggestion that judicial processes are not also democratic processes,’ proffering instead the view that the courts have been, and must go on, ‘doing their job — the job which Parliament has given them or which the common law has expected of them for centuries’. Brexit, the polarising problem which has been pushing judges into the public eye recently, seems also to have pushed them into expressing starkly opposite points of view.
Given the vast, intricate, all-consuming issue that gave rise to the debate, it is interesting that both Lord Sumption and Lady Hale begin by centring their arguments on an acutely intimate issue. Lord Sumption singles out the case of Charlie Gard as an example of ‘law’s expanding empire’. He argues that the High Court’s intervention into the baby’s treatment illustrates an increasing tendency of the law to limit individual autonomy, even in cases where the exercise of that autonomy does no harm to others, and there is no consensus as to its morality. After making it clear that she will not be addressing the Supreme Court’s recent decision on the prorogation of Parliament, Lady Hale tackles this argument at once. Citing the decision of the High Court in the case of Tafida Raqeeb earlier this month, she argues that far from judicial over-reach, these cases simply illustrate the courts doing their job well: ‘resolving disputes according to clear legal standards in the light of all the available evidence’. The distinction between the cases of Charlie Gard, Alfie Evans and Isaiah Haastrup, in which doctors were allowed to withdraw life support, and Tafida’s case, in which her parents were permitted to transfer the child to Italy for treatment, was that the evidence as to her prognosis, awareness and pain level was less clear cut. Mr Justice MacDonald acknowledged that the decision as to her medical best interests was made on ‘a fine balance’.
Law creates artificial relationships between non-related people and entities. It even gives person-hood to non-biological beings such as companies and partnerships (although not yet to non-human species). Genetics describe the underlying relationship of all biological beings. For centuries, law and genetic science developed in parallel with very little overlap. But as genetic discoveries ride the crest of the technological revolution, law finds itself on the back foot. Legal instruments, such as property law and the law of obligations between non-related individuals were crafted in feudal times with the aim of protecting property beyond the death of the owner. With genetic discoveries, we face a myriad of questions, from ownership of gene editing techniques to the dangers of discrimination based on genetic predisposition for disease.
Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment
The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.
In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).
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