MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening)  EWHC 1523 — judgment not yet on Bailii but available here.
The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.
Background: The Panorama exposé
MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.
The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.
In unanimously allowing an appealagainst a decision to declare the appellant intentionally homeless due to her inability to pay her rent, the Supreme Court affirmed that non-housing benefits are not designed to create a surplus that can be used to account for insufficient housing benefits.
The appellant, Ms Samuels, was an assured shorthold tenant
of a property in Birmingham, where she lived with her four children. Having
fallen into rent arrears she was given notice to leave and subsequently applied
to the respondent council as homeless under Part VII of the Housing Act 1996.
The council instead decided that she was intentionally homeless on the grounds
that her current accommodation was affordable and it was only due to the
appellant’s deliberate decision not to pay the rent that had resulted in her becoming
At the time that Ms Samuels left the property she was entirely dependent on social security benefits which amounted to a total of £1,897.84 per month. This figure comprised: (a) housing benefit (£548.51); (b) income support (£290.33); (c) child tax credit (£819.00); and (d) child benefit (£240.00). Excluding the housing benefit, the total available for living expenses was £1,349.33.
Ms Samuels’ rent was £700, leaving a shortfall of £151.49 when compared to her housing benefit, whilst she calculated her other monthly expenditure to be £1,234.99, comprising: (a) food/household items (£750); (b) electricity (£80); (c) gas (£100); (d) clothes (£50); (e) TV license (£43.33); (f) school meals (£43.33); (g) travel (£108.33); (h) telephone (£20); and (i) daughter’s gymnastics (£40).
Overall, Ms Samuels was left in the unfortunate position of having expenses totalling £1,934.99 with only £1,897.84 worth of social security benefits to cover these expenses.
In Episode 84, Emma-Louise Fenelon talks to Jo Moore, Head of Outreach at 1 Crown Office Row, and Laura Bruce, Head of Programmes and Partnerships at the Sutton Trust. They discuss improving equality and diversity at the Bar by improving access to the Bar for future generations. Listen here.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.
Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.
As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.
Much of the case will be heard in private over the next week.
The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.
The factual background
Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.
Mr Lachaux brought libel actions against three newspapers in respect of five articles.
The Supreme Court has rejected a challenge by lone parents with young children to the reduced benefit cap, holding by a majority of 5-2 that its discriminatory effects are justified. Although disappointing for campaigners, the judgment helps to clarify many aspects of discrimination law in the context of social and economic policy.
Background: the benefit cap
The benefit cap was first introduced in the Welfare Reform Act 2012. It applies as a limit on the total amount of welfare benefits that one household can receive if they are out of work, initially set at £500 per week (or £26,000 per annum) for families with children. As the limit applies irrespective of family composition, it has a severe effect on larger families and those such as lone parents with young children who may find it difficult to avoid it by finding work.
The Supreme Court has found that Poole Borough Council did not owe a duty of care to two children, CN and GN, who it failed to re-house, despite the fact that they were suffering abuse from their neighbours. However, the court overruled previous authority and found that in some situations a duty of care might arise.
The Claimants, CN and GN, had been placed by the Council in
a house on an estate in Poole with their mother in May 2006. CN was aged 9 and GN
was aged 7. CN has severe mental and physical disabilities.
The family living in the neighbouring property were known by the Council to have engaged in anti-social behaviour persistently. Soon after their arrival, this family began a campaign of harassment and abuse against GN, CN and their mother which lasted for several years. This included vandalism, attacks on the family home, threats of violence, verbal abuse, and physical assaults. All measures, including eviction, anti-social behaviour orders, of sentences of imprisonment, etc. had failed to stop the abuse. Even a Home Office-commissioned independent report criticised the police and of the council’s failure to make adequate use of powers available under anti-social behaviour legislation.
Or “Human Rights and Wrongs”, as Jonathan Sumption’s third lecture is called, in his series on Law’s Expanding Empire, delivered in Edinburgh and broadcast on Radio 4 and BBC World Service.
Human rights are where law and politics meet. It can be an unfriendly meeting…”
Following these strong words, Lord Sumption briskly debunks the ideas of “natural” or “inalienable” human rights, in favour since Blackstone’s time. In principle, there is nothing so fundamental about certain rights that they cannot be overturned by democratic election. The idea of these inalienable human rights was perfectly straightforward in a world where rights were part of God’s law, or in communist societies where these rights were ordained by the ruling party. But in a secular democracy, Sumption asks, what is it that makes rights legitimate? Of course there are rights without which a community cannot function, like the right to be free of force, and the right to participate in fair and regular elections. Any further rights should be conferred by collective choice, and not because because they are thought to be inherent in our humanity, or derived from some higher law. Instead of the mystics and the totalitarians, he invites us instead to consider the 18th century enlightenment philosopher David Hume.
He rejected the whole concept of natural law … You cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.
Rights [continues Sumption] do not exist in a vacuum, They are the creation of law, which is a product of social organisation, and which is therefore necessarily a product of political choice.
The entanglement of law and ethics is always perilous when it involves the threat of prohibition. When Shenzhen scientists announced two years ago that they had edited the genes of twin human babies whilst still in vitro, voices of disapproval reverberated around the globe. Whilst it seems that gene modification of potential human life fills us with fear and loathing nothing has stood in the way of the race to refine this technology. Efforts to predict and restrict genetic engineering seem quaint and outmoded, from the UNESCO 1997 Declaration on the Human Genome and Human Rights, to the Council of Europe’s Convention in the same year to restrict the modification of the genome to therapeutic purposes only. These agreements, as well as the 2015 call by UNESCO for a moratorium on germline modification, are well past their sell by dates.
What is the scope of a school’s duty to accommodate the religion of a parent whose children attend its schools? From September 2020, it will become mandatory for “relationship education” which includes lessons about LGBT relationships to be taught in English primary schools under the Children and Social Work Act 2017. According to a petition by Muslim parents in Birmingham, however, such teaching contradicts the Islamic faith, thereby violating their freedom of religion.
The ongoing protests raise a host of questions about the boundaries between religious rights and the obligation of the state to promote social inclusion through universal and non-discriminatory education.
In this article, it will be argued that the rigorous approach taken by the Canadian courts to this issue should serve as a template for possible future consideration by the English courts and also that uneven standards in the statutory guidance for maintained and independent (including faith) schools undermine the equality duty in the UK.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.
Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.
The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.
Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.
A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD  EWCOP 18
The lesson to be learned from this case is to be careful of the hands into which you may fall, should you become incapacitated and end up in a vegetative or minimally conscious state.
The patient in this case, P, was traumatised by a drug overdose in 2014. Since then she has been tracheotomy dependent and tube-fed. She is vulnerable to fitting, chest infections and other forms of ill-health. She was initially diagnosed as being in a vegetative state which was subsequently revised to that of a minimally conscious state.
At the time of the application she was in a unit specialising in rehabilitation for those suffering from neurological impairment. Staff at the Unit hold strong pro-life views. The CCG, the applicant in this case, was funding that treatment. There was no disagreement between the Official Solicitor, the CCG and the family as to the correct course of action; that Clinically Assisted Nutrition and Hydration (CANH) should be withdrawn. However, given the contrary views expressed by the staff who care for P, the CCG decided to bring this matter before the court. MacDonald J concluded that, whilst the application proceeded unopposed by all parties to it, it was appropriate to deliver a fully reasoned judgment.
The Court of Appeal unanimously ruled that a nurse’s dismissal for improper proselytising was not unfair and that the hospital trust’s decision was not in contravention of the claimant’s rights as guaranteed by Article 9 of the European Convention on Human Rights.
The claimant, a committed Christian, had been employed as a band 5 nurse by the Trust since 2007. Following a medication error, she had been given a final written warning and transferred to work in a pre-operative assessment role. In this role the claimant was required to go through a pre-operative form with the patients. The form required the claimant to make a simple inquiry into the patient’s religious beliefs; importantly “it did not open the door to further religious discussion.” 
In March and April 2016 several complaints were made by
patients about the over-zealous religious preaching of the claimant, with one
patient being told shortly before major bowel surgery that he had a better
chance of survival if he prayed to God.
Following these complaints the matron gave the claimant both oral and written warning that her proselytising was not acceptable. The claimant confirmed that she would not engage in religious discussion unless prompted by the patient.
Two further complaints were made in May and the claimant was
suspended. Whilst suspended a further complaint was made alleging that the
claimant had forced a patient to sing Psalm 23 out loud in what he described as
a “very bizarre” encounter that was “like a Monty Python skit.”
The trust investigated the claims and after a disciplinary hearing the claimant was dismissed for repeated and inappropriate misconduct, including a breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) code which prohibits nurses from expressing their own personal views in an inappropriate way.
District Judge Coleman, a judge sitting in the Westminster Magistrates Court, has issued a summons for Boris Johnson to appear in the Crown Court. He will face three charges alleging misconduct in a public office in a private prosecution brought by Marcus Ball. The offences alleged are indictable only which means that they can only be heard in the Crown Court.
Marcus Ball, a 29-year-old businessman who has brought the proceedings with the help of crowdfunding, alleges that the frontrunner for the Tory leadership lied about the amount of money which the UK sends to the EU both during the referendum campaign and during the general election campaign in 2017.
The controversial claim that £350m a week was sent by the UK to the EU and could better be spent on public services in the UK instead was a particularly eye catching aspect of the Leave campaign and attracted considerable criticism at the time and since. Some of that criticism particularly from the Institute of Fiscal Studies which branded the claim “absurd” and UK Statistics Authority whose chair described the claim as a misuse of statistics forms an important part of the case.
At issue in this procedural hearing was whether the court should issue a summons for Boris Johnson to attend court. He opposed the application and lost. He will be required to appear therefore be required to attend court for a preliminary hearing and the case will then be sent to the Crown Court.
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