The Weekly Round up: cakes, emergency services and legal advice all in the limelight

14 October 2018 by

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Baking takes up supreme court time on both sides of the Atlantic, the United Nations High Commissioner for Refugees makes an appearance in the Court of Appeal, Unexplained Wealth Orders make an entrance and more…

The biggest news of the week arguably came out of Northern Ireland. However, mercifully this blog can ignore the ongoing speculation regarding a Brexit settlement, the attitude of DUP MPs, the potential presence of border infrastructure and whether or not veterinary inspections and customs checks are of loose equivalence (well, at least for now…).
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Climate change human rights claim wins in the Dutch courts

14 October 2018 by

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State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here

The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).

The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.

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Supreme Court rules that hospital receptionist owes a duty of care to a patient — Owain Thomas QC

11 October 2018 by

A&E Croydon.jpgThe Supreme Court has unanimously allowed the appeal of Michael Darnley in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, holding that a hospital receptionist owed a duty of care to a patient at A&E, which was breached by providing him with incorrect information as to how long he was likely to have to wait before being seen or triaged.

The case raised questions as to the existence and scope of the duty of care owed by hospitals to patients who attend and are dealt with non-medical staff. The decision has potential implications for all those who are booked in to A&E even if no-one has professionally assessed their need for care.

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No compensation for Google data breaches

10 October 2018 by

black samsung tablet display google browser on screen

Lloyd v Google LLC [2018] EWHC 2599 (QB) 8 October 2018 – read judgment

This is a novel form of action, but everything was new once (Warby J para 100)

 

Already today we are becoming tiny chips inside a giant data-processing system that nobody really understands. (Yuval Noah Harari, 21 Lessons for the 21st Century, p. 36)

 

Do people want privacy? Because they seem to put everything on the internet. (Elon Musk, interview on Joe Rogan podcast #1169 at 1.49)

Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary application for a representative claim last week.
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We need a new, enforceable international climate change agreement — Dr Linda Roland Danil

8 October 2018 by

The_Earth_seen_from_Apollo_17Today it was announced that the Intergovernmental Panel on Climate Change (IPCC) has published a special report on the impact of climate change which warns that the world is wildly off track from the target of keeping the rise in global temperature under control.

In this guest article, Dr Linda Roland Danil argues that a new international agreement is needed to prevent us from sleepwalking into serious trouble.

 

In 2015, 196 Parties came together and agreed to the Paris Agreement, under which they pledged to limit global warming to 1.5 to 2 degrees Celsius above pre-industrial levels. But the problem is that the Paris Agreement does not contain quantified, legally-binding obligations for the reduction of emissions. It also has no enforcement mechanism, such as an international tribunal. Instead, countries prepare their own national emissions targets – so-called Intended Nationally Determined Contributions or INDC’s – and report to each other on how well they are doing to implement their targets.

The Paris Agreement was undoubtedly an achievement in the realm of international climate negotiations, and although the Trump administration has notoriously recently pledged to withdraw from the Agreement, a withdrawal which cannot take effect until late 2020. 196 Parties, at different stages of economic development, and within a conflicting political context, all agreed on the importance of tackling the threat of anthropogenic global warming.

However, the Paris Agreement’s targets are simply not being met, with the national pledges by the signatory Parties having recently been argued to bring about only a third of the reduction of emissions by 2030 that is required.
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Round Up- Civil Partnerships for all and the Unlawfulness of Hardial Singh.

8 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Marriage-009

Credit: The Guardian

In the News:

The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.

Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.

Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.

The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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Rejection of unaccompanied asylum seeking children unlawful for lack of reasons – Court of Appeal

4 October 2018 by

MIG-1Help Refugees Ltd, R (on the application of) v Secretary of State for the Home Secretary [2018] EWCA Civ 2098 – read judgment

This was an appeal by Help Refugees Ltd against the refusal of its application for judicial review of the secretary of state’s consultation process regarding the relocation of unaccompanied asylum-seeking children under Section 67 of the Immigration Act 2016.

Background law and facts

This provision was passed in response to the mass migration into Europe of unaccompanied asylum-seeking children (UAS children) from the Middle East and North Africa.  Section 67 established a scheme whereby the secretary of state was required to arrange for the relocation of “specified number” of UAS children. That number was to be determined by the secretary of state in consultation with local authorities. Because the s.67 scheme was not the only route by which UAS children might lawfully enter the UK, the specified number was to represent the highest number of s.67 UAS children that the local authorities could reasonably accommodate. It is inherent in the provision that the interests of UAS children in being located in the UK have to be balanced against the interests of other children for whom local authorities are responsible, and the public interest in ensuring that there is reasonable resource capacity in the system to accommodate the UAS children. In late 2015 – 2016 the number of migrants hugely accelerated in France, reflected in the increase in attempts to make unauthorised access to the UK from France through ports in Kent. This in turn imposed a huge burden on the local authorities in that region to fulfil their obligations under the Children Act, necessitating relocation to other parts of the UK.

On 8 September 2016, the Home Office wrote to all local authorities asking each to specify the number of children it could accept under s.67. By October, when the refugee camps in Calais were being cleared, UAS children in France were assessed for transfer under s.67 against published criteria, such as age, length of time in Europe, and country of origin (with older Sudanese and Syrian UAS children being allowed in). UAS children in France were assessed for transfer against these published criteria. For practical purposes, those who satisfied the criteria were transferred; and those who did not were not. The latter were told simply that they had not met the eligibility criteria –

“Age 18+” or “Criteria not met”.

The charity challenged both the lawfulness of the consultation process and the adequacy of the reasons given to the rejected children. The Divisional Court rejected both grounds of challenge ([2017] EWHC 2727 (Admin)).

The charity argued that the secretary of state had (1) failed properly to discharge her duty to consult; (2) breached her common law duty of procedural fairness by failing to give adequate reasons to the rejected children.

Hickinbottom LJ, giving judgment for the Court, allowed the appeal.

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Drug wars about macular degeneration

4 October 2018 by

jcm-04-00343-g004-1024Bayer Plc v NHS Darlington Clinical Commissioning Groups (CCG) and others [2018] EWHC 2465 (Admin) – read judgment

This judicial review concerned whether it was lawful for NHS clinical commissioning groups to adopt a policy for offering the drug Avastin to patients suffering from “wet” (or neo-vascular) age-related macular degeneration (AMD).  Avastin, although not licensed for ophthalmic use, at £28 per injection is significantly cheaper than the licensed alternatives (£816 and £551 respectively per injection). The Royal College of Ophthalmologists has estimated that the NHS-wide saving of switching to Avastin was at least £102 million p.a.

Bayer and Novartis (with their drugs licensed for AMD) therefore had considerable financial interests in setting aside this policy. They sought review of the commissioning groups’ policy.  The manufacturer of Avastin (Roche) was an interested party. The drug is widely used in other countries for neo-vascular AMD.  The General Medical Council had issued guidance saying that doctors could prescribe off-label medicines provided they were satisfied that there was sufficient evidence or experience of using the medicine to demonstrate its safety and efficacy.

There were essentially six issues before the court.

Whipple J dismissed the claim for judicial review.

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Coroner not required to investigate identities of Birmingham bombers

2 October 2018 by

 

Coroner for the Birmingham Inquests v Hambleton & Ors [2018] EWCA Civ 2081 (26 September 2018)

 

At an inquest, the Coroner must investigate four things: the identity of the deceased and how, when and where they came by their death. Ordinarily, the question ‘how the deceased came by their death’ means ‘by what means’ they came by their death (R v. North Humberside Coroner, ex parte Jamieson [1995] QB 1).

However, in some cases, an enhanced investigative duty arises. When the death under investigation may have involved a failure by the state to fulfil its positive obligations under Article 2 of the ECHR, the interpretation of ‘how’ must be expanded to include an inquiry into the ‘circumstances in which the deceased came by his or her death’.

Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081 involved such an inquest. The central question for the Court of Appeal (composed of a panel including the Lord Chief Justice and the Vice-President of the Criminal Division of the Court) was whether, as part of his investigation into the deaths of the 21 victims of the 1974 Birmingham bombings, the Coroner was required to call evidence directed at identifying those responsible for the bombings. The Court of Appeal decided that, in this case, the Coroner was not so obliged.

One Crown Office Row’s Peter Skelton QC, Mathew Hill and Gideon Barth appeared on behalf of the Coroner. They were not involved in writing this post.

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New podcasts

2 October 2018 by

1Cor podcast logoWith the start of the legal term, we’ve posted three great podcasts on Law Pod UK. Episode 42 looks at the influence of international law on individual rights after Brexit. In Episode 43 Clare Ciborowska discusses the new offence of coercive and controlling behaviour in family proceedings. And in Episode 44 we go to the Sainsbury Laboratory in Cambridge to find out what plant scientists think of the recent CJEU ruling on genetically modified organisms.

Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast. 

The Round-Up: Child Spies, Equal Opportunity for Fertility Treatment, and CJEU to rule on Article 50 revocation

1 October 2018 by

The European court of justice

The European Court of Justice. Image Credit: The Guardian

The courts open again for Michaelmas term today, but in the meantime the round-up has the latest on a fresh set of challenges to government and NHS policy, plus a successful Brexit reference to the ECJ.

Firstly, a legal action seeking to establish whether the UK can unilaterally revoke Article 50 of the Lisbon Treaty has been referred to the European Court of Justice by the Court of Session, Scotland’s supreme civil court.

The action was brought by a cross-party group of six Scottish MPs, MEPs and MSPs, and the Good Law Project.  The case was initially rejected in June as “academic and hypothetical”, but on appeal judges rejected the government’s core argument that the question was “academic” given that their policy is to leave the EU. Lord Carloway, Scotland’s most senior judge, commented: “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU.”

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Human trafficking: is our system for combating it fit for purpose?

28 September 2018 by

trafficking.jpgHuman trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.

The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.

Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.

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Court of Appeal quashes finding that doctor was dishonest — Sapan Maini-Thompson

27 September 2018 by

the-royal-courts-of-justice-1648944_1280Raychaudhuri v General Medical Council [2018] EWCA Civ 2027

On 14th September 2018 the Court of Appeal allowed an appeal by a doctor against a finding that his fitness to practice was impaired by reason of dishonesty.

This case concerned professional disciplinary proceedings against the appellant, Dr Hemmay Raychaudhuri. A complaint had been made in relation to how the appellant had filled in a form to record the medical examination of a child patient. This complaint was referred to a Medical Practitioners Tribunal (MPT). Assessing the scope for misunderstanding between the appellant and other medical staff, the MPT upheld the charge of ‘misleading actions’ rather than ‘dishonest actions’. As such there was no impairment of his ability to practice as a doctor.

The General Medical Council (GMC), however, alleged dishonesty on the part of the appellant. The GMC appealed to the High Court in reliance on section 40A Medical Act 1983. This stipulates the conditions under which the General Council may challenge a decision of an MPT if it believes a disciplinary decision made under section 35D does not sufficiently protect the public.

In the High Court, Sweeney J followed the decision of the Divisional Court in General Medical Council v Jagjivan [2017] EWHC, which held that the High Court had jurisdiction to hear an appeal by the GMC against a ruling by an MPT. He substituted the MPT’s finding to declare that the appellant had in fact behaved dishonestly and that therefore his fitness to practice was impaired.

There were three grounds of appeal before the Court of Appeal.

  1. The High Court has no jurisdiction under Section 40 to hear an appeal by the GMC against a finding by an MPT that a doctor’s fitness to practice is not impaired. This was an invitation to overrule Jagjivan;

 

  1. The High Court was wrong to substitute a finding that he had behaved dishonestly, where the MPT had acquitted him of dishonesty;

 

  1. Even if the conduct was dishonest, the High Court was wrong to find his fitness to practice was impaired and was wrong to remit the case to the MPT.

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ALBA Summer Conference 2018: A Review (Part 3)

24 September 2018 by

albaConor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC

Professor Alison Young

Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.

First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.

Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.
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The Round up: statelessness, Romanian prisons, parental vaccine dispute and UN

23 September 2018 by

CHILDRENRIGHTSDECLARATIONThis week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.
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