17 December 2018 by Thomas Hayes
This week the eyes of the United Kingdom, and quite possibly the whole of Europe, were trained on Luxembourg for an eagerly awaited judgement from the Court of Justice of the European Communities. However, before we embark on a lengthy and forensic analysis of the German/Slovakian case of AlzChem v Commission (State aid – Chemical industry – Judgment) [2018] EUECJ T-284/15 (13 December 2018), we should pay some attention to the week’s legal Brexit developments…
The CJEU this week delivered judgement in the case of Wightman and Others – (Notification by a Member State of its intention to withdraw from the European Union – Judgment) [2018] EUECJ C-621/18 (10 December 2018). The case had been referred to the Luxembourg court by the Inner House of the Court of Session and addressed the feasibility of unilateral revocation of Article 50 TEU. The UK government sought to have the application ruled inadmissible on the grounds that the question posed was hypothetical, no such revocation of Article 50 having been attempted or even contemplated. The European Council and Commission meanwhile contended that although revocation was possible, the right was not unilateral. They appeared to fear abuse of Article 50 by member states who could unilaterally seek to terminate their membership of the European Union, revoke that termination and then repeat the exercise as necessary to circumvent the two-year time limit imposed by Article 50 on withdrawal negotiations.
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12 December 2018 by Guest Contributor
This year marks the 70th anniversary of the adoption of the Universal Declaration of Human Rights (UDHR) by the UN. The UDHR represented a watershed moment in moral progress. Previously, individuals were widely regarded as mere ‘objects’ of states under international law with no rights of their own.
The atrocities that took place in Europe during the Second World War were a major catalyst for moving away from this state-centred view of international relations. As Johannes Morsink notes in his meticulous historyof the drafting of the UDHR, the Holocaust was the single most important event that shaped its writing.
The UDHR recognises that ‘all human beings are born free and equal in dignity and rights’ regardless of their race, sex, national origin or other status. But did it go far enough? After all, the vast majority of the earth’s inhabitants are nonhuman. Just as individual humans are particularly vulnerable to the excesses of state and other forms of concentrated power, so too are animals particularly vulnerable to abuse at the hands of humans.
The tyrannical exercise of human power over the other animals is ubiquitous, whether it’s subjecting them to painful biomedical experiments, destroying their natural habitats, forcing them to perform in circuses and aquariums, or industrially rearing and exterminating them for food. Are we systematically violating the rights of animals when we treat them like this? Ought we take steps to rectify this with a Universal Declaration of Animal Rights?
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11 December 2018 by kayres1cl
Katie Ayres is a barrister at 1 Chancery Lane.
R (on the Application of Jefferies and Others) v (1) Secretary of State for the Home Department (2) Secretary of State for Digital, Culture, Media and Sport [2018] EWCH 3239 (Admin)
By Judgment handed down on 29 November 2018 Lord Justice Davis and Mr Justice Ouseley dismissed the Claimants claims for Judicial Review of the Government’s decision to not embark on ‘Part 2’ of the Leveson Inquiry.
The decision provides clarification of the ‘legitimate expectation’ ground for Judicial Review and gives a warning to not overlook the fundamental principles of public law.
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10 December 2018 by Rosalind English
In the latest episode of Law Pod UK Rosalind English talks to Catriona Murdoch of 1 Crown Office Row about Global Rights Compliance, an organisation offering a unique approach to atrocity crimes and other violations of international law. The Hague-based GRC works in partnership with The World Peace Foundation (‘WPF’) to combine expertise on conflict and food insecurity. Together they are identifying how international law may be used to advance the prevention, prohibition and accountability for mass starvation.
Law Pod UK is available for free and without ads on Audioboom, iTunes, PodBean,The Podcast App or wherever you get your podcasts.
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10 December 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
In the News:
This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.
Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.
Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.
The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
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3 December 2018 by Rosalind English
In Episode No 56, Suzanne Lambert and Emma-Louise Fenelon discuss the recent judgment of Whipple J in YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB)
In her analysis of the decision Suzanne refers to: the control mechanisms established by the House of Lords in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, the House of Lords decision in Page v Smith [1996] 1 AC 155 and the decision of the Court of Appeal in A Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588.
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3 December 2018 by Eleanor Leydon
In the Courts:
Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.
The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.
Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).
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30 November 2018 by Rosalind English
Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here, here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
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29 November 2018 by Rosalind English
As part of our continuing collaboration with Professor Catherine Barnard of Cambridge University, we now have her latest episode on the Political Declaration on the withdrawal deal: Episode 55 of Law Pod UK. Towards the end of her 15 minute interview with Boni Sones Catherine talks about the Wightman reference to the CJEU from the Scottish Court of Session asking whether Article 50 can be revoked, and if it can be revoked, can it be done unilaterally by the UK or only bilaterally with the EU’s agreement. Exceptionally, the entire banc of the EU justices have just heard this case which indicates just how important this issue is; judgment awaited.
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28 November 2018 by Michael Spencer
In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan [2018] NICA 34. The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.
The Inquests
On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.” Mr Jordan was unarmed and was shot in the back. Three inquests have subsequently been held into his death.
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27 November 2018 by Hannah Noyce
Khan v MNX [2017] EWHC 2990 (QB) – read judgment.
The Court of Appeal has held that a mother who consults a doctor in order to avoid the birth of a child with one disability may not recover damages for the costs associated with a different disability.
The Facts
The respondent, M, was concerned that she may be a carrier of haemophilia and consulted her GP, who arranged blood tests. Those tests, however, could only detect whether she herself had haemophilia, and not whether she was a carrier. She then saw the appellant, another GP, who told her that the results of the tests were normal. This led her to believe, incorrectly, that any child she had would not have haemophilia. The appellant admitted that she had been negligent.
M went on to have a son, FGN, who has haemophilia. Had she known that she was a carrier before she became pregnant, she would have undergone foetal testing, which would have revealed the condition, and she would have had a termination. Therefore, but for the negligence, FGN would never have been born.
FGN has also developed autism, which is unrelated to his haemophilia.
The claim sought the costs attributable to the haemophilia and to the autism.
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27 November 2018 by Sapan Maini-Thompson
Sapan Maini-Thompson is an LLM Candidate at University College London.
On 14th November 2018 the Divisional Court gave judgment in a claim against the Criminal Cases Review Commission (CCRC) in Regina (Anthony Davies) v The Criminal Cases Review Commission . This case was brought on behalf of a prisoner who contended that his conviction had become unsafe following the decision of the Supreme Court in R v Jogee [2016] UKSC 8 which recast the mens rea requirements in joint enterprise cases. The court dismissed the claim in a judgment which involved analysis of how the principles in Jogee are applied, and the circumstances in which the CCRC should re-open an old conviction. Jim Duffy of 1 Crown Office Row was the Junior Counsel for the Claimant and instructed by David McCorkle of Duncan Lewis Solicitors.
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26 November 2018 by Guest Contributor
The Upper Tribunal decision in of C&C v Governing Body [2018] UKUT 269 (AAC) has provided important clarification to the scope of the Equality Act 2010 in an education context.
A 13-year-old boy, L, was excluded for physical violence at school. L suffered from autism, anxiety and Pathological Demand Avoidance; it was common ground that the episodes of violence were as a result of these conditions.
It was also common ground that, but for the effect of Reg. 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (‘the 2010 Regulations’), L would meet the definition of having a ‘disability’ found at section 6 of the Equality Act 2010 (‘EA 2010’), as he had physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
But section 6 of the EA 2010 must be read in conjunction with the 2010 Regulations. The effect of Reg.4(1)(c) of the 2010 Regulations is to carve out from the definition of ‘disability’ those ‘impairments’ which manifest themselves in:
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
(e) voyeurism.
In C&C the school argued that L’s violent behaviour amounted to ‘a tendency to physical…abuse of other persons’ for the purposes of the 2010 Regulations, thereby removing the protection from discrimination that he would otherwise be afforded by the EA 2010.
The Law
Previous cases had decided that behaviour which amounted to a ‘tendency to physical…abuse’ was not protected under the Equality Act 2010 in the case of children with behavioural difficulties.
However, C&C reversed this line of authority.
The First Tier Tribunal had found, in line with the established case law, that L did not fulfil the definition of ‘disability’ under section 6 EA 2010 by virtue of the operation of Reg. 4(1)(c).
On appeal, Tribunal Judge Rowley was tasked with deciding whether the current interpretation of Reg. 4(1)(c) of the 2010 Regulations was compatible with Article 14 read with Article 2 of Protocol 1 (A2P1).
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26 November 2018 by Thomas Hayes
New Interpol President Kim Jong-Yang – credit The Guardian
From Strasbourg to the Strand, this week saw a plethora of judgements delivered in cases with notably interesting facts. However, arguably the most widely reported legal news concerned two stories, neither involving judgements in the UK courts. The case of six-year-old girl sexually assaulted by other pupils at a primary school made headlines after a local authority, whilst not admitting liability, settled her claim following a round table meeting in March this year. The High Court has now approved this settlement to make it binding on the parties (a necessary move when one party is a child to prevent them seeking further damages when they attain a majority) in litigation which some consider may contribute to legal precedent. More on that here. Meanwhile, the case of Matthew Hedges, a British academic jailed for life in the UAE on spying charges widely considered unfounded, appears to be resolved. Reports this morning indicate Mr Hedges has been unconditionally pardoned and is likely to be released imminently. This case raised profound questions about the rule of law and reliability of the judiciary in a Middle East country considered one of the West’s closest and most reliable partners.
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23 November 2018 by Rosalind English
This week Law Pod UK, the podcast brought to you by the barristers at 1 Crown Office Row, surpassed 90 000 listens since our launch in May last year. Nobody could have predicted the runaway success of the podcast form a couple of years ago. Our short podcasts have proved enormously popular, not least because they provide updates on the latest legal developments with crisp discussion that absorbs the attention but lasts no longer than a short commute.
Rosalind English and Emma-Louise Fenelon present discussions with barristers, solicitors and academics on a wide range of topics including the recent Supreme Court decision in Darnley, human trafficking, clinical guidelines, and the impact of AI on the legal profession.
Intrigued? Subscribe to Law Pod UK via Apple Podcasts, iTunes, Audioboom or wherever you get your podcasts. And if you like what you hear, please remember to rate and review us. Your support is encouraging and we hope you can help us make 100,000 listens by Christmas.
Thank you to everyone who has listened and keep an eye out for the new episodes to be released shortly!
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