Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
R (o.t.a A and B) v. Department of Health  UKSC 41, 14 June 2017 – judgment here; previous post here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS. Continue reading →
R (o.t.a P & others) v. Secretary of State for Home Department & others  EWCA Civ 321, Court of Appeal, 3 May 2017 – read judgment
The Court of Appeal has upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8.
The problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.
Conway, R (on the application of) v Secretary of State for Justice  EWHC 640 – read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP  UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.
In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.
The Court concluded – with an interesting dissent from Charles J – that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
Jones v. Canal & River Trust  EWCA Civ 135 – 7 March 2017 – read judgment
In recent years, the Courts have come up with a pragmatic resolution to the clash of property and Article 8 rights which typically occur in housing cases. Where the tenant is trying to use Art.8 to fend off a possession order, because he is in breach of some term of the tenancy, then the Courts, here and in Strasbourg, have resolved the issue in the favour of the local authority, save in exceptional circumstances.
But the current case of a canal boat owner raises a rather different balance of rights and interests – which is why the Court of Appeal evidently found the issue a difficult one to decide.
Vaccine in vial with syringe. Vaccination concept. 3d
SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017)  EWHC 125 (Fam)
The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.
The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine. Continue reading →
A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.
Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.
The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.
The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.
The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.
Smith v Lancashire Teaching Hospitals NHS Trust and another  EWHC 2208 (QB) – read judgment
Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.
The issues before the Court
The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners. Continue reading →
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland)  UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.
The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.
This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.
The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.
It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.
In other news
The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.
A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.
The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo
The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).
The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.
The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.
Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.
Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.
PJS v. News Group Newspapers Ltd  UKSC 26– read judgment
The Supreme Court has this morning continued the interim injunction concerning PJS’s extra-marital goings-on until after the full trial of the claim – after a rollercoaster ride for his claim through the courts.
Cranston J refused an injunction on 15 January 2016.
The Court of Appeal granted it on 22 January (Matt Flinn’s post here), and then discharged it on 18 April due to the effect of subsequent publicity which they said had led the injunction to have no remaining purpose (my post here). The subsequent publicity was in US newspapers and via the internet (with, as Lord Toulson commented, some fairly obvious twitter hashtags involved.)
The Supreme Court swiftly convened a hearing on 21 April, leading to today’s judgment reversing the Court of Appeal.
The decision (4-1) was not unanimous, with Lord Toulson dissenting. There are three concurring judgments (all agreed to by the majority).
In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others  EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80). Continue reading →
Spencer v Anderson (Paternity Testing)  EWHC 851 (Fam) – read judgment
A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.
The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies. Continue reading →
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