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13 March 2015 by David Hart KC
Montgomery v. Lanarkshire Health Board [2015] UKSC 11, 11 March 2015 – read judgments here
James Badenoch QC of 1COR was for the mother in this case. He played no part in the writing of this post.
An important new decision from a 7-Justice Supreme Court on informed consent in medical cases.
In the mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence (which all lawyers will know as the Bolam principle) was extended to the quality of information to be provided to a patient about a given treatment.
The Supreme Court, reversing the judgments at first instance and on appeal, has now unequivocally said that Sidaway should not be followed.
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30 October 2016 by Rosalind English
McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment
A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.
See our previous post on Article 50 and a summary of the arguments in the English proceedings.
This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.
At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute. While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.
However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out.
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17 February 2011 by Guest Contributor
Updated | The Coalition Government’s Programme for Government, launched on 20th May 2010, made a number of commitments relating to information law, including issues about privacy and data protection. It also stated that the Government would introduce a Freedom Bill.
On Friday last week (11th February) the Protection of Freedoms Bill was duly published, with lengthy explanatory notes stating that it implemented 12 specific commitments in the Programme for Government.
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12 February 2012 by Matthew Hill
Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 – Read judgment (On appeal from [2010] EWCA Civ 698 and [2009] EWHC 1827 )
At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).
But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.
In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.
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19 March 2018 by Eleanor Leydon
Image credit: Guardian
DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.
Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:
the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.
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18 January 2013 by Jim Duffy
Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) – Read judgment
Earlier this month, Rocknroll came to the Chancery Division. Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaper from printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.
In Edward Rocknroll v. News Group Newspapers Ltd, the Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR). As such, the photographs cannot be published nor their contents described pending a full trial.
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9 March 2017 by Guest Contributor
On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.
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17 September 2018 by Conor Monighan
Credit: The Guardian
Conor Monighan brings us the latest updates in human rights law
In the News:
The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal. Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.
The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service. The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.
In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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9 January 2012 by Guest Contributor
On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.
Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.
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29 April 2011 by Guest Contributor
The Prime Minister has said that he is “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament. In our contribution to the continuing debate on this issue we are re-posting this [update – three part!] discussion on the history and future of privacy law from Inforrm’s Blog.
Introduction
The “law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century. But the pace of development has accelerated over recent years. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties. The action for breach of confidence has been transformed – almost beyond recognition.
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14 July 2011 by Alasdair Henderson
The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.
However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.
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29 August 2023 by anuragdeb
Introduction
On 11 August, a piece from Professor Richard Ekins KC (Hon) set out a case for the UK denouncing the European Convention on Human Rights (ECHR) and leaving the treaty system altogether. One of the main arguments in favour of this is that it would ‘restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be’. This marks one of the more recent such calls, amid a growing chorus of Ministers in the UK Government and Conservative Party MPs to leave the ECHR. Also, it should be noted that we have been here before. The constitutional aspects of such a move aside, there are particular reasons why it would impact Northern Ireland. While Northern Ireland does not feature in Professor Ekins’ 11 August piece, he has previously written about the interaction between the ECHR and the Good Friday Agreement 1998 (GFA), which underpins the modern devolution settlement in Northern Ireland and which brought an end to a brutal and deadly conflict. This interaction is the subject of this post.
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31 December 2010 by Matthew Hill
November saw the publication of the report of the Redfern Inquiry into human tissue analysis in UK nuclear facilities (read the report, here).
The inquiry was the latest in a number of investigations looking at the post mortem removal, retention and disposal of human body parts by medical and other bodies, and the extent to which the families of the deceased knew of and consented to such practices. The Inquiry chairman, Michael Redfern QC, also chaired the Royal Liverpool Children’s Hospital (Alder Hay) Inquiry.
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14 October 2019 by Thomas Hayes
Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.
The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.
Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.
Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson.
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29 July 2010 by Adam Wagner
He can come now
The proposed change to the rules for bringing on who can apply for international war crimes arrest warrants has predictably generated some strong reactions
The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted. The Ministry of Justice say they are changing the rules in order to prevent arrests happening after the presentation of “flimsy” evidence. Those who fear arrest under the current system range from Israeli ministers to the Pope.
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Montgomery v. Lanarkshire Health Board [2015] UKSC 11, 11 March 2015 – read judgments here
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