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On 16thJuly 2018 the Supreme Court will begin to hear legal arguments on the appeal of the children against the judgment of the Court of Appeal in CN and Anor v Poole Borough Council [2017] EWCA Civ 2185

I wrote up the original judgment here. The appeal was expedited and the Court will now consider the extent to which local authorities owe a common law duty to protect children from harm arising within the community where they live.

Background 

A quick reminder of the somewhat remarkable facts of the case. In 2006 Mrs N and her two sons CN and GN, then aged nine and seven (one of whom was severely disabled), moved to a housing estate in Poole. The accommodation was arranged by the council as the local housing authority. Over the ensuing years, the family suffered from the effects of extreme anti-social activities of a neighbouring family. This behaviour was frequently reported to the property owners, officers of the council and local police. A measure of the seriousness of the case can be gained by the fact that the Home Office became involved and commissioned an independent case review which reported critically on the reaction of the agencies.  The appellants’ distress was so great that one of them attempted suicide. They continued to suffer from their neighbours’ behaviour until they were provided with alternative accommodation in December 2011.

Among the important issues being considered is whether the decision in D v East Berkshire Community NHS Trust was correct, and whether it has been impliedly overruled by later House of Lords and Supreme Court authority. In D, the Court of Appeal concluded that local authorities did owe a duty at common law, a contention rejected by the Court of Appeal in this case.

The Supreme Court hearing

The appeal is being heard over a day and a half by Lady Hale (President), Lord Reed (Deputy President), Lord Wilson, Lord Hodge and Lady Black.

The appellants are represented by (1) Lizanne Gumbel QC, who leads (2) Iain O’Donnell, (3) Duncan Fairgrieve and (4) Jim Duffy.  They are instructed by Leigh Day.  Poole are represented by Lord Faulks QC, Paul Stagg and Katie Ayres. (5) Philip Havers QC, Andrew Bagchi QC and (6) Hannah Noyce appear for the AIRE CENTRE, which is the lead intervener. The Supreme Court has also agreed to interventions by the Coram Children’s Legal Centre which is represented by Deirdre Fottrell QC, (7) Martin Downs and Tom Wilson. Aswini Weereratne QC, Caoilfhionn Gallagher QC and Nicholas Brown appear for Article 39 & the Care Leavers’ Association. The barristers numbered above are all from 1 Crown Office Row.

The post Supreme Court hearing on local authorities’ liability for child abuse appeared first on UK Human Rights Blog.

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It was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.

They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?

Background

Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).

Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.

However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.

Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:

Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.

The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.

The Walk-Out

At the next hearing, on 21 March 2018, Ms Kaufmann made a number of submissions criticising the inquiry:

The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.

She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.

The Strategic Review

Partly as a response to the impasse that the Inquiry had reached, Sir John Mitting carried out a Strategic Review. He ruled out the appointment of a panel for the entire inquiry on the basis that it would

impose a heavy cost in both time and money – the plans set out in the strategic review could not be achieved within the already lengthy timeframe envisaged.

Nevertheless, he concluded that a diverse panel would be desirable at the the third stage of the Inquiry, devoted to the examination of current undercover policing practices and of how undercover policing should be conducted in future.

The Present Situation

It is against this background that the present legal challenge has emerged. It is being brought by three individuals who were part of groups infiltrated by undercover officers. They have set up a Crowdfunding page to raise funds and intend to apply for permission for judicial review of the Home Secretary’s decision to refuse to appoint a panel. If permission is granted by a judge, they will be able to progress to a full judicial review.

At the moment, we do not know how the legal challenge will be framed. However, there is one previous case in which the same issue has arisen which could provide some guidance.

The Grenfell Tower Inquiry Case

In R (on the application of Daniels) v May [2018] EWHC 1090 (Admin), Lord Justice Bean and Mr Justice Edis considered a legal challenge brought by the son of a victim of the Grenfell Tower fire. He challenged the Prime Minister’s decision to refuse to appoint a panel to sit alongside the chairman, Sir Martin Moore-Bick, for Phase I of the inquiry. This was discussed by Suzanne Lambert on this Blog here.

The main argument made on Mr Daniels’ behalf was that the Prime Minister had failed to accept that the need to maintain public confidence in the inquiry was the key factor in promoting the statutory purpose of the Inquiries Act 2005.

Mr Daniels argued that the entire purpose of the Act was to ensure that there was public confidence in the outcome of an investigation into matters of public concern. It was not simply a factor that should be taken into account and therefore it could not be outweighed by other considerations. Thus, in deciding whether to appoint a panel, the Prime Minister should have kept at the forefront of her mind the need to maintain public confidence, and it was clear from the views expressed by the victims of the fire that they did not have confidence in Sir Moore-Bick.

The court disagreed, however. It was held that section 8 of the Act only identifies two considerations which must be taken into account in the appointment of a panel: (1) impartiality and (2) expertise. Impartiality was not an issue. As to expertise, the court found that it was rational for the Prime Minister to conclude that Sir Martin Moore-Bick did have the requisite expertise, particularly taking into account that he would have the benefit of help from assessors (usually experts, but not of the same status as panel members)

As to diversity, the court looked carefully at the wording of section 8 and concluded that, if an inquiry panel is appointed which includes a chair and other members, then balance must be considered in deciding on the composition of that panel. But, importantly,

section 8 does not state that a panel consisting of a chairman and other members is more desirable in the interests of balance in the diversity sense than an inquiry panel consisting of a chairman alone.

The court went on to say that whilst the views of the fire victims and family members were a relevant consideration, it was up to the Prime Minister to decide how much weight she wanted to place on that consideration, and the court could not interfere with that decision.

The claimant also tried to make a human rights point, relying on the state’s duty under Article 2 (the right to life) to hold an effective investigation into deaths. The court rejected this point stating that Article 2 requires the state to hold an impartial, independent and effective investigation, but it does not require the investigation to be carried out by any particular person.

Ultimately, the court asked itself whether it was rational for the Prime Minister to appoint Sir Martin Moore-Bick and found, taking everything into account, that it was.

In concluding, the court also referred to the desirability of ensuring that the inquiry could produce an initial report on Phase I reasonably quickly, which would establish how the fire started and make recommendations to prevent another disaster. The court was careful to limit its decision to Phase I of the inquiry, saying that, at later stages of the inquiry, different considerations might apply.

Conclusions

At first blush, it may not seem that the claimants in the Undercover Policing Inquiry challenge have much chance of success. However, compared to the Grenfell case, they have a foundation on which to allege that Sir John Mitting does not have the expertise to head this inquiry.

In the Grenfell case, the only real problem with Sir Martin Moore-Bick that the claimant could point to was that the victims of the fire were uneasy with the appointment of a person who seemed very far removed from the life experiences of the victims. But there was no evidence that Sir Martin had said or done anything in particular to lend credence to these fears.

In the present case, however, Sir John Mitting’s comments provide a more solid basis on which to object to his level of expertise. Of relevance, in my view, is the fact that the comments were made in an inquiry hearing, rather than in an external context. On the other hand, it must be acknowledged that he plainly has a great deal of expertise at dealing with issues of national security, surveillance and policing.

It is inherent in the judicial role to adjudicate upon disputes between people who may or may not have a similar life experience to the judge and there is a multitude of examples of judges who behave with a great deal of empathy towards people in completely different situations to themselves. Sir William Macpherson, who led the inquiry into the death of Stephen Lawrence, is a good example.

Nevertheless, particularly in the context of a public inquiry, there is an argument that public confidence is paramount, and such confidence is unlikely to exist if the core participants feel that the head of the inquiry has no understanding of what is at stake.

Rajkiran Barhey is a pupil barrister at One Crown Office Row.

The post Legal challenge to the Undercover Police Inquiry — will it succeed? appeared first on UK Human Rights Blog.

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UK Human Rights Blog by Rosalind English - 5d ago

Subscribers to the UKHRB will have received an earlier version of our announcement of recent podcasts by Emma-Louise Fenelon. There was a mix-up in the episode numbers and links which has now been corrected. Apologies for any confusion this may have led to, and please enjoy the properly attributed and linked recording!

The post Podcast episode correction appeared first on UK Human Rights Blog.

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UK Human Rights Blog by Rosalind English - 5d ago

Emma-Louise Fenelon recently interviewed Richard Booth QC about a successful injunction application to prevent a gross misconduct disciplinary hearing. You can hear the interview on Episode 39 of Law Pod UK.

The Claimant, represented by Jeremy Hyam QC, was a consultant forensic psychiatrist whose employment duties included working on the healthcare wing at Lewes prison. Following the death in custody of an inmate on the healthcare wing who had been under the Claimant’s care, the Trust initiated an investigation into the Claimant’s conduct and capability. The report of the investigation made a number of findings of failure to meet professional standards in particular with respect to the record keeping of ward reviews, but put them in the context of an under-resourced prison service.  Based on the report, the Trust’s case manager purported to convene a hearing to consider disciplinary action for gross misconduct against the Claimant.

An injunction was sought to prevent such hearing going ahead on the basis that, taken at its highest, the content of the investigation report did not justify a charge of gross misconduct; that the Trust’s policy definition of gross misconduct was lower that normally set by the common law; and that the Case Manager’s management statement of case went beyond the findings in the investigation report. Granting the injunction on an interim basis, the Court concluded that there were serious issues to be tried on all the issues raised by the Claimant and the balance of convenience was clearly in favour of the grant of the injunction.

The judgment can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2018/1535.html

Law Pod UK continues to go from strength to strength and has surpassed 55k listens. All episodes are freely available to listen or download from a number of podcast platforms, including iTunes, Audioboom and The Podcast App.

The post New podcast from Law Pod UK appeared first on UK Human Rights Blog.

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UK Human Rights Blog by Rosalind English - 6d ago

Emma-Louise Fenelon recently interviewed Richard Scorer QC about a recent successful injunction application to prevent a gross misconduct disciplinary hearing. You can hear the interview on Episode 33 of Law Pod UK.

The Claimant, represented by Jeremy Hyam QC, was a consultant forensic psychiatrist whose employment duties included working on the healthcare wing at Lewes prison. Following the death in custody of an inmate on the healthcare wing who had been under the Claimant’s care, the Trust initiated an investigation into the Claimant’s conduct and capability. The report of the investigation made a number of findings of failure to meet professional standards in particular with respect to the record keeping of ward reviews, but put them in the context of an under-resourced prison service.  Based on the report, the Trust’s case manager purported to convene a hearing to consider disciplinary action for gross misconduct against the Claimant.

An injunction was sought to prevent such hearing going ahead on the basis that, taken at its highest, the content of the investigation report did not justify a charge of gross misconduct; that the Trust’s policy definition of gross misconduct was lower that normally set by the common law; and that the Case Manager’s management statement of case went beyond the findings in the investigation report. Granting the injunction on an interim basis, the Court concluded that there were serious issues to be tried on all the issues raised by the Claimant and the balance of convenience was clearly in favour of the grant of the injunction.

The judgment can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2018/1535.html

In Episode 39 of Law Pod UK  Richard Booth QC joins Emma-Louise Fenelon to discuss a successful employment injunction to prevent a gross misconduct disciplinary hearing.

Law Pod UK continues to go from strength to strength and has surpassed 55k listens. All episodes are freely available to listen or download from a number of podcast platforms, including iTunes, Audioboom and The Podcast App.

The post New podcasts from Law Pod UK appeared first on UK Human Rights Blog.

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In R. (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 the Court of Appeal held that the blanket ban on assisted suicide in the Suicide Act 1961 s.2(1) was a necessary and proportionate interference with the ECHR art.8 rights of the appellant.

The appellant had proposed an alternative scheme for assisted suicide containing certain conditions and safeguards, including the approval of a High Court judge, for those who were terminally ill and had less than six months to live. However, it was held that the alternative scheme would not be effective and raised wide-ranging policy issues that would be better dealt with by Parliament.

The Court identified the origin of the case as being that the Claimant has a prognosis of six months or less to live and wishes to have the option of taking action to end his life peacefully and with dignity, with the assistance of a medical professional, at a time of his choosing, whilst remaining in control of the final act that may be required to bring about his death. However, Section 2(1) of the 1961 Suicide Act makes it a criminal offence to provide encouragement or assistance for a person to commit suicide.

Mr Conway therefore sought a declaration of incompatibility under section 4 of the HRA , on the basis that the ban on assisted suicide was a disproportionate interference with his right to respect for his private life under Article 8 of the Convention (“Article 8”).

The Court noted that the ECtHR had made it clear that while Article 8(1) was engaged by such a ban, it was the kind of case that fell within a state’s margin of appreciation, giving Parliament discretion to legislate as it had done.

The Court noted that prior the Conway case, R (Nicklinson) v Ministry of Justice [2014] UKSC 38 was the most recent challenge to the 1961 Act, and that an important part of the background to Nicklinson in the Supreme Court was the introduction by Lord Falconer of his Assisted Dying Bill in the House of Lords on 5 June 2014, shortly before the judgment in the Supreme Court was delivered. In Nicklinson the disabilities of two Claimants were such that they would be unable to carry out any act that enable them to commit suicide; i.e. the issue in Nicklinson was in part whether euthanasia rather than assisted suicide should be lawful.

The Court of Appeal noted that the criteria and safeguards proposed under Mr Conway’s alternative statutory scheme were materially similar to those in the Falconer Bill, and the later the Marris and Hayward Bills that had also sought to legalised assisted suicide, namely that:

1) The prohibition on providing assistance for suicide should not apply where the individual:

a) is aged 18 or above;

b) has been diagnosed with a terminal illness and given a clinically assessed prognosis of six months or less to live;

c) has the mental capacity to decide whether to receive assistance to die;

d) has made a voluntary, clear, settled and informed decision to receive assistance to die; and

e) retains the ability to undertake the final acts required to bring about his or her death having been provided with such assistance.

2) The prohibition would only be disapplied where the following procedural safeguards are satisfied:

a) the individual makes a written request for assistance to commit suicide, which is witnessed;

b) his or her treating doctor has consulted with an independent doctor who confirms that the substantive criteria in (1) are met, having examined the patient;

c) assistance to commit suicide is provided with due medical care; and

d) the assistance is reported to an appropriate body.

3) Finally, as a further safeguard, permission for provision of assistance should be authorised by a High Court judge, who should analyse the evidence and decide whether the substantive criteria in (1) are met in that individual’s case.

The Court of Appeal summarised the central issue as

whether that blanket ban is a breach of Convention rights as a matter of domestic law under the Human Right Act.

The Justice Secretary accepted that, in principle, the court had jurisdiction to consider whether section 2 of the 1961 Act was compatible with Article 8 as part of the court’s function as determined by Parliament under the HRA.

The Court rejected the Justice Secretary’s contention that the Court was bound by the decision in R (Pretty) v DPP [2001] UKHL 61, holding that

We reject that submission. We do not do so on the basis that, as contended by Ms Lieven [for the Claimant], Pretty was a case about euthanasia rather than assisted suicide. We consider it is clear that the House of Lords dealt with the case as one of assisted suicide: see the judgment of Lord Steyn at [44]. We do so for two reasons. First, as the Divisional Court noted (at [81]-[82]), no Justice of the Supreme Court in Nicklinson suggested that the decision in Pretty had binding precedential effect on a domestic Re G application of Article 8(2) , subject only to the Supreme Court’s inherent power to depart from previous decisions of itself and the House of Lords. They plainly considered the matter to be at large. Secondly, the balancing exercise under Article 8(2) falls to be carried out on the facts as they exist at the moment, and in the light of all that has taken place since Pretty and the precise scheme that is now put forward and the evidence adduced by the parties, which differs from that before the court in Pretty.

The Court also rejected the Justice Secretary’s argument that the domestic court was bound to go no further than that which had been decided by the ECtHR, namely that, as determined in Pretty v United Kingdom, section 2(1) fell within the United Kingdom’s margin of appreciation and the domestic court should go no further, saying

We disagree with those submissions. Mr Eadie’s argument is circular in that, on his argument, the domestic court has to make a decision for itself under a domestic Re G interpretation because the ECtHR has held the matter to fall within the United Kingdom’s margin of appreciation, only for the domestic court to be prevented from doing so by having to take into account the very decision which gives the domestic court latitude to make its own decision.

Accordingly the court had to decide

whether the blanket ban on assisted suicide under section 2 of the 1961 Act is both necessary and proportionate, having regard to the proposed scheme put forward by Mr Conway and the evidence before it.

The Court held that it was not bound by the decision in Nicklinson

as it focused on the situation of people in long term suffering rather than, as under Mr Conway’s scheme, those suffering from a terminal illness who are within six months of death … Further, while there was only limited evidence in Nicklinson as to how weak and vulnerable people might be protected if assisted suicide was legalised, Mr Conway’s scheme is specifically designed to impose appropriate safeguards and considerable evidence has been adduced as to whether the proposed scheme would maintain a proper balance between the interests of the cohort of persons in the same position as Mr Conway, on the one hand, and the rest of the community, on the other hand.

With regards to the detail of the proposed scheme, the Court stated that there were various issues on which there were evidential disputes:

(1) the possibility of predicting death within six months with any reliable degree of accuracy;

(2) whether changing the law to permit assisted suicide would have an adverse effect on the doctor-patient relationship, and the extent to which permitting assisted suicide would result in “doctor-shopping” by a patient; and

(3) the potential for indirect coercion or undue influence if assisted suicide is permitted

The Court held that

Despite Ms Lieven’s submissions on the evidence, what remains quite clear is that an element of risk will inevitably remain in assessing whether an applicant has met the criteria under Mr Conway’s proposed scheme. The submissions and counter-submissions of counsel on the evidence, limited as it is to the evidence which the parties choose to place before the court, highlight the limitation of the ability of the court to assess with confidence the precise extent of the risk. The weight to be given to that risk, in deciding whether or not the blanket ban on assisted suicide is both necessary and proportionate, involves an evaluative judgement and a policy decision, which, for the reasons we give below, Parliament is, on the face of it, better placed than the court to make.

The Court also identified other potential concerns with the proposed scheme:

  1. The potential for complications in the actual medical procedure for assisting suicide;
  2. How the proposed inquisitorial role of a High Court judge would work in practice: to decide matters such as freedom from coercion, undue influence or the imminence of death the judge would need proper evidence, which would require funding;
  3. The advance made in palliative care in recent years; and
  4. A concern that others would then seek to extend the scheme to different categories.

The Court concluded that:

There is no common law right to assisted suicide and Parliament has expressed a clear position, not only by the terms of the 1961 Act itself, but by subsequently and relatively recently rejecting legislation along the lines of Mr Conway’s scheme. What is in issue is not the application of well established principles to new facts but the possible legalisation of conduct that was criminal at common law and is now criminal as a matter of statute.

When considering whether the blanket ban is necessary and proportionate, the DPP’s Policy is also a relevant consideration. The evidence is that this has been faithfully implemented and so provides a reasonable degree of assurance on likely prosecution … In other words, in the context of the circumstances which Mr Conway postulates in the criteria which have been advanced to the court, although we recognise that a retrospective examination of events in the context of the DPP’s policy will always be more traumatic and difficult, the possibility of prosecution is not a high risk.

There can be no doubt that Parliament is a far better body for determining the difficult policy issue in relation to assisted suicide in view of the conflicting, and highly contested, views within our society on the ethical and moral issues and the risks and potential consequences of a change in the law and the implementation of a scheme such as that proposed by Mr Conway. The contentious nature of the proposal is reflected in the fact that assisted suicide is unlawful in the great majority of Convention countries. It is particularly of note that Mr Conway’s proposed scheme is broadly equivalent to the Falconer Bill, which never became law, and the Marris Bill, which was rejected by the House of Commons.

Comment

The decision of the Court of Appeal will almost certainly be considered again by the Supreme Court. The issue of whether the law should permit assisted suicide raises moral, ethical, practical and legal questions and it is hard to imagine that this Claimant, or future Claimants in a similar position, will rest until the Supreme Court, however unwillingly, is required to look at the problem again.

One area that may be the focus of challenge to the Court of Appeal’s judgment is whether there was sufficient differentiation between the moral, ethical and risk management issues posed by those who are terminally ill and not disabled vs disabled but not terminally ill.

Dominic Ruck Keene is a barrister at One Crown Office Row. He is entirely independent from his brother Alex Ruck Keene, of 39 Essex Chambers, who was junior counsel for Mr Conway in this case.

The post The right to die – who decides? appeared first on UK Human Rights Blog.

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The rendition to Libya in 2004 of Mr Belhaj and his wife, Mrs Boudchar has given rise to a series of important cases in the domestic courts. In Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 the Supreme Court unanimously ruled that the doctrine of state immunity did not operate to bar claims against the Government arising from their detention (as discussed in these pages by Dominic Ruck Keene).

Recently the parties in the Belhaj case have reached a mediated settlement and this action is at an end. Although the settlement was concluded without admission of liability, the Prime Minster issued an apology which included the following statement:

The UK Government’s actions contributed to your detention, rendition and suffering. The UK Government shared information about you with its international partners. We should have done more to reduce the risk that you would be mistreated. We accept this was a failing on our part.

The Remaining Case

Despite the end of those proceedings, a procedural argument remained extant which concerned the applicability of closed material proceedings to judicial review in certain cases. In Belhaj and another v Director of Public Prosecutions and another [2018] UKSC 33 (4 July 2018) the Appellants sought judicial review of a decision not to prosecute a person said to be a member of the British Secret intelligence Service.

Although the matter was then settled before judgment, the Court decided that this issue required authoritative determination in light of its importance.

The allegation was broadly one of connivance in the Appellant’s abduction, ‘rendition’ and maltreatment (although Her Majesty’s Government neither confirmed nor denied such involvement during the proceedings). The Crown Prosecution Service decision was made on the basis of 28,000 documents, none of which were disclosed to the Appellants due to their security classification.

The issue for the Court was whether this material could be received during judicial review proceedings using the closed material procedure by which the material is disclosed to the court and a special advocate but not the Appellants.

Although the European Court of Human Rights has endorsed the use of closed material procedure where necessary and proportionate (Kennedy v UK (2011 52 EHRR 4)), the common law rule requiring disclosure in litigation means that the use of closed material procedure is not within the inherent jurisdiction of the courts and therefore it requires statutory authority before it can be applied (Al Rawi v Security Service (JUSTICE intervening) [2012] 1 AC 531).

The extension of closed material procedure to civil proceedings was made by the Justice and Security Act 2013. The Act was brought in to enable the government to defend civil proceedings without having to disclose sensitive material or settling unmeritorious claims. ‘Relevant civil proceedings’ are defined by section 6(11) of the Act as “any proceedings (other than proceedings in a criminal cause or matter) . . .”

The question for the Supreme Court was therefore whether the judicial review of a prosecution decision amounted to criminal proceedings in this sense – if it did, the closed procedure could not be used.

The decision

By a 3 to 2 majority the Court decided that it did. Lords Sumption and Mance and Lady Hale were in the majority and Lords Lloyd-Jones and Wilson were in the minority.

Lord Sumption (with whom Lady Hale agreed) concluded that judicial review cannot be regarded as a solely civil proceeding and the ordinary and natural meaning of the phrase “proceedings in a criminal cause or matter” included ‘proceedings by way of judicial review of a decision made in a criminal cause’. Lord Sumption reviewed a line of authority stretching back to the Supreme Court of Judicature Act 1873 in support of this conclusion together with an assessment that

The reality of the Appellants’ application is that it is an attempt to require the Director of Public Prosecutions to prosecute . . .

In dissent Lord Lloyd-Jones (with whom Lord Wilson agreed) suggested that the contested phrase could have differing meanings depending upon the statutory context (R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (No 2) [2012] EWCA Civ 420; [2013] QB 618). In the context of the Justice and Security Act 2013 he considered that it did not extend to a “public law challenge to a decision as to whether to initiate criminal proceedings” – this he considered was extraneous to the criminal process. Disagreeing with Lord Sumption’s assessment of the reality of the Appellants’ application he identified that, even if it were to succeed, further steps would be required before criminal proceedings might begin.

Both judges considered the statutory context of the phrase in order to identify the reason behind the exclusion of “proceedings in a criminal cause or matter” from the closed material procedure. In doing so they each referred to the Justice and Security Green Paper Cm 8194/2011.

Lord Sumption found that the difference between civil and criminal proceedings lay in the degree of control exercisable by the executive in criminal cases. He recognised that, unlike civil proceedings in which the government is a defendant, in criminal proceedings it always has the option of withdrawing the prosecution in order to protect sensitive material.

Whereas Lord Sumption did not feel that this supported an argument for the use of closed procedure in the present case, Lord Lloyd-Jones considered that as the Director of Public Prosecutions, as Respondent, had no power to withdraw from the current proceedings, that same rationale therefore applied. For him, this case presented the very type of conflict between open justice and national security that required the application of the compromise provided by the Act.

Comment

In a separate judgment allowing the appeal, Lord Mance identified the rationale for excluding criminal proceedings from closed material procedure as the protection of an accused rather than the facilitation of proceedings against them.

However, the present case was not concerned with traditional Article 6 rights but with a third party challenge to a decision not to prosecute. The Government sought to use the closed procedure to enable the court to consider the material that was used in the decision not to prosecute.

As the Divisional Court ([2017] EWHC 3056 (Admin)) had previously recognised (as discussed in these pages by Alasdair Henderson), the alternative to the closed procedure was likely to be a successful application by the Secretary of State for public interest immunity. Accordingly, although the Applicants’ claim is not proceeding, the result of the present case is that relevant but sensitive material could be ‘entirely removed from the scrutiny of the court’.

The case perpetuates the paradox identified by the Divisional Court that the Appellants, in arguing that the closed procedure amounted to an infringement of their rights, were arguing for the removal of a procedure that might at least enable some judicial scrutiny. The success of their argument in the Supreme Court means that in future similar cases the Government will be deprived of a procedure which would enable it to defend judicial review where traditional Article 6 rights are not in issue and withdrawal is not an option. This appears to be a defeat for the rationale behind the Justice and Security Act.

Nicholas Clapham is a teaching fellow at the School of Law of the University of Surrey.

The post The Belhaj finale: Exclusion of closed material procedure means less scrutiny of DPP decisions — Nicholas Clapham appeared first on UK Human Rights Blog.

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IMB v Secretary of State for Work and Pensions ,26 June 2018 

Weeks after ruling against certain sexual orientation tests for asylum seekers and finding that EU Member States must recognise the free movement rights of gay spouses, regardless of whether same-sex marriages are solemnised therein, the European Court of Justice (ECJ) held that the UK requirement for transgendered persons to be unmarried in order to qualify for a State pension at the retirement age of their current gender violated EU law.

Background facts

The claimant, identified as MB, is a male-to-female married transgendered person, i.e she was assigned the male sex at birth, but identifies as female. After being recognised as female on both passports and driving licenses issued by UK authorities, MB underwent sex reassignment surgery in 1995. She did not, however, obtain a Gender Recognition Certificate under the Gender Recognition Act 2004.

In 2008, MB reached the then-female retirement age of 60 and sought a State pension. However, her application was rejected on the grounds that i) she did not meet the retirement age for men(which then was age 65) and ii) she could not be considered for a pension on the basis of the retirement age for womenbecause she had not acquired a Gender-Recognition Certificate. Why not obtain such a certificate, one might ask? The reason is that, at the time, it would have been conditional on her annulling her marriage (same-sex unions were not allowed then). However, MB and her spouse were unwilling to divorce. In a nutshell, MB found herself in an invidious situation: either, she waits until the retirement age for men to lay claim to her pension, even though she identifies (but is not legally recognised) as female, or she divorces her partner, acquires a gender recognition certificate, and applies for a pension at the female retirement age.

MB challenged the refusal to grant her a pension at the female retirement age in national courts, arguing that the marriage annulment prerequisite amounted to unequal treatment contrary to EU law. To that end, she relied on a EU directive  from 1978 outlawing sex-based discrimination in matters of social security, including old-age and retirement pensions.

The case wound its way up to the Supreme Court, who were divided on the issue and referred a question to the ECJ. The Supreme Court queried whether the EU directive at hand prohibits the requirement imposed on transgendered persons to be unmarried in order to qualify for a State retirement pension at the retirement age of their current gender, in addition to meeting various other physical, social and psychological criteria.

Reasoning behind the Court’s decision

The ECJ followed Advocate General Bobek’s Opinion, and held that UK pension law amounted to direct sex discrimination. In greater detail, the Court ruled that the said EU directive precludes the UK requirement for transgendered persons not only to satisfy physical, social and psychological criteria, but also to fulfil the condition of being unmarried to a person of their acquired gender, in order to seek a State retirement pension as from the statutory pensionable age applicable to persons of their acquired gender.

  • As regards direct discrimination, the Court first noted that Member States must comply with the principle of non-discrimination in civil matters, in spite of retaining full competence over them. Direct sex discrimination is made out when a person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation. In light of its case law, the ECJ then stated that, in view of its purpose and the nature of the rights it safeguards, the directive in question does apply to discrimination arising from gender reassignment. Indeed, judges took the view that individuals who have lived for a significant period as persons of a gender other than their birth gender and who have undergone a gender reassignment operation mustbe considered transgendered.
  • In the present case, the Court found that while the UK marriage annulment requirement affected persons who transitioned after marrying, it did not apply to married cisgender individuals i.e those identifying with the sex assigned at birth.
  • The Court went on to compare the situation of a person who transitioned after marrying with that of a married cisgender person. Judges held that the State retirement pension is designed to protect its recipients against the risks of old age by conferring on them the right to a retirement pension acquired in relation to the contributions they paid during their working lives, irrespective of marital status. Thus, both situations were deemed comparable.
  • The ECJ ruled that the marriage annulment condition, hitherto fashioned to avoid same-sex marriages, is unrelated to that retirement pension scheme. Instead, it gives rise to direct sex discrimination against married transgender applicants that falls within none of the derogations exhaustively set out in the EU directive. 

Comment: an unsurprisingly progressive decision?

Days after the World Health Organisation removed transgenderism from its international classification of diseases, the ECJ’s decision was hailed by MB’s lawyers as a win of ‘great importance in the move towards increased equality and respect’. The case will now return to the Supreme Court to apply the ruling.

The MB judgement can be considered against the backdrop of a range of progressive and LGBTQI-friendly case-law. Over the years, the EU has developed an important corpus of law protecting a variety of characteristics, such as sexual orientation, and boasts a wide array of anti-discrimination directives as well as protective Charter of Fundamental Rights provisions. Indeed, non-discrimination on the basis of sexual orientation is built into the fabric of the Union: Article 10 TFEU provides that in defining and implementing its policies and activities, the Union shall aim to combat sexual orientation-based discrimination. This has had a significant impact on the UK. For instance, the 1999 Sex Discrimination (Gender Reassignment) Regulations were introduced in response to an ECJ landmark ruling finding that protection against gender-based discrimination at work should also apply to people who had undergone or were planning to have gender reassignment surgery. In another British case, the Court held that transgender partners must be entitled to the same employment benefits as married couples and be treated equally under pension schemes.

Crying victory too early?

Looking at the bigger picture, Amnesty International estimates that transgenderism concerns as many as 1.5 million people across Europe. Hearteningly, most European countries now provide for legal gender recognition procedures. However, 2017 statistics supplied by the Trans Rights Europe Map & Indexhighlight the many hurdles that life as a transgendered person implies, which offers a more sobering account of transgender rights in Europe than MBmight suggest. It transpires that 23 European nations still require transgenders to divorce while 36 systematically demand that their mental health be diagnosed, a process slammed by LGBT groups as stigmatising and discriminatory. The harrowing report further underlines that bias-motivated crimes against LGBT people are on the rise throughout Europe and highlights the flaws in the European asylum protection on grounds of gender identity, especially in light of the rise of populists avowedly thriving on the current anti-migrant sentiment. Worse still, it notes that only 2 European countries explicitly outlaw the controversial conversion therapies on grounds of gender identity while 20 still require sterilisation. 8 States have no practical means of recognising transgender people whatsoever. In European terms, this is a polarising issue, with certain Central and Eastern countries having expressed frustration upon the EU for acting as a rubber-stamp for their Western counterparts’ liberal views.

Back in 2002, when transgender campaigner Christine Goodwin won her legal battle against the UK to be legally recognised as female, the ECHR considered there was ‘clear and uncontested evidence of a continuing international trend in favour of increased social acceptance’ of transgendered persons. One wonders, beyond the Goodwin case, whether this was a specious statement. Admittedly, in the UK, transgender rights have come a long way since the infamous 1971 case Corbett v Corbett, and their legal protection has rapidly improved all over Europe. This week’s ECJ judgement can be considered as part of the constellation of legal progress towards the full recognition of transgender persons. Nevertheless, however bright and far-reaching it may be, this ruling also lays bare theobstaclesthey face on the road to equality and social acceptance.

Thibault Lechevallier is currently a stagiaire in the Cabinet of Judge Tomljenovic at the General Court of the European Union. This blog post is written in a purely personal capacity and reflects only the author’s views. The author wishes to thank Michael Rhimes for drawing this case to his attention and for his comments

The post How much of a groundbreaking decision is the CJEU’s judgment for transgender rights? – Thibault Lechevallier appeared first on UK Human Rights Blog.

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In the News:

The Intelligence and Security Committee found that the UK had allowed terrorism suspects to be treated unlawfully.

Following a three-year investigation, it published two reports examining the extent to which Britain’s intelligence agencies were aware of the mistreatment of suspects. The reports found no evidence that British officers took part in the torture themselves. Neither was there clear evidence of a policy which sought to deliberately overlook mistreatment.

However, the Committee found that British intelligence officers had witnessed prisoners being tortured. They had seen detainees being mistreated at least 13 times, were told by prisoners that they were being abused at least 25 times and were informed of ill-treatment by foreign agencies 128 times. British agents also threatened detainees in nine cases.

Despite being aware of the mistreatment from an early stage, UK agencies continued to provide questions for interrogations. The Committee chairman, Dominic Grieve, said that the UK had tolerated ‘inexcusable’ actions.

Furthermore, British agencies assisted in the rendition of suspects to countries with ‘dubious’ human rights records. MI5 and MI6 subsidised, or offered to subsidise, the rendition of individuals on three occasions. They also provided information for the rendition of 28 people, proposed/ agreed to rendition in 22 cases and failed to stop the rendition of 23 others (including cases involving British nationals).

The Committee also criticised the way Downing Street prevented it from speaking to a number of politicians about the issue, who would otherwise have been key witnesses. In particular, the committee was not allowed to speak to the then Home Secretary (David Blunkett, who was in charge of MI5) and the then foreign secretary (Jack Straw, in charge of MI6 and GCHQ). The Committee also expressed grave concern over the continued absence of a policy determining whether and how UK personnel can be involved in rendition.

The Committee’s findings have renewed calls for an independent judge led inquiry into the issue.

In Other News….

  • The first successful conviction under the Modern Slavery Act occurred this week. Ms. Iyamu, a London-based nurse, was found guilty of arranging or facilitating travel for sexual exploitation. Ms. Iyamu had trafficked five Nigerian women into Germany to work as prostitutes. She also forced the women to take part in ‘voodoo’ rituals. This included making them swear oaths to hand over money, forcing them to eat chicken hearts and drink blood containing worms. Her husband was acquitted of doing acts intended to pervert the course of justice. Ms. Iyamu will be sentenced on the 4th (The BBC reports here).
  • Uber has been granted a short-term license to operate in London. Its licence was originally suspended by Transport for London (TfL) following concerns about passenger safety. Uber had been particularly criticised for flaws in its background checks on drivers, together with its systems of obtaining medical certificates and reporting criminal offences. Uber has made changes in order to address these concerns, including reporting crimes directly to the police rather than logging them with TfL. The hearing took two days and Chief Magistrate Emma Arbuthnot ordered Uber to pay TfL’s legal costs. Uber has also been placed on ‘prohibition’ for 15 months. This means that that the renewal of its license is subject to it following a number of strict rules. Compliance will be monitored by TfL. (The Guardian reports here).
  • The Grenfell Inquiry has continued this week. Firefighters have been giving evidence about the blaze, which killed 71 people. One firefighter, David Badillo, described how he undertook a ‘personal rescue mission’ to save a 12 year old girl. It was ultimately unsuccessful. He also said that the communication sets which had been issued were ‘useless’. Concern has also been raised about the initial response to the fire. The firefighter initially responsible, Michael Dowden, told the inquiry he had ‘no previous knowledge’ which could assist his decision making. He did not consider evacuating the tower, describing how he felt ‘helpless’ in the face of events. The expert Dr Barbara Lane had previously told the hearing that the ‘stay put’ advice failed within half an hour. (The BBC reports hereand here).

In the Courts:

  • MB v Secretary of State for Work and Pensions: The CJEU found UK pension law discriminated against a transgender woman. Under s.4 of the 2004 Gender Recognition Act, the claimant could only obtain a gender recognition certificate if she first annulled her marriage. Since the claimant wished to remain married, she was unable to change her gender. As a consequence of this, at the age of 60 she was refused the female state pension (though she could claim the male state pension at 65). The CJEU noted the requirement that a person’s marriage be annulled before they were eligible for a state pension only applied to persons who have changed their gender. This amounted to direct discrimination based on sex, and thus s.4 of the Act was contrary to EU law. This discrimination could not be justified, since the purpose of the marriage annulment condition (namely avoiding marriage between persons of the same sex) is unrelated to the retirement pension scheme.
  • Conway, R (on the application of) v The Secretary of State for Justice & Ors: The Court of Appeal rejected a challenge to s.2 of the Suicide Act 1961, which imposes a blanket ban on assisted suicide. The claimant was Mr Conway, who has a form of motor neurone disease and wishes to end his life. He proposed an alternative scheme for assisted dying containing certain safeguards and conditions (including requiring the approval of a High Court judge). The court held that this scheme was problematic and raised policy issues which ought properly to be addressed by Parliament. This view is cemented by the fact that assisted dying is unlawful in the great majority of Convention countries. The court further held that s.2 of the Suicide Act 1961 is a necessary and proportionate interference with s.8 of the ECHR. There was no error with the Divisional Court’s finding that the prohibition advanced three legitimate aims. The court rejected Mr Conway’s submission that, by adopting the balance struck by Parliament, the Divisional Court had abdicated their responsibility to make a proportionality assessment themselves. It was entirely proper to give the views of Parliament significant weight. The appeal was dismissed and Mr Conway intends to take the case to the Supreme Court.
  • B v The General Medical Council: An appeal against an injunction was allowed. In light of a patient’s complaint, the General Medical Council (GMC) commissioned an expert report into a doctor’s fitness to practise. The patient asked for a copy of the document, but the doctor did not consent. The GMC undertook a balance of interests test and concluded that it should pass the report to the patient. The doctor successfully obtained an injunction, which the GMC appealed. The Court of Appeal held that there was no rebuttable presumption against disclosure in a document containing ‘mixed personal data’ (here, that of the patient and doctor). Rather, a balance must be struck between the competing interests of the requester and objector, both of which are contained within Article 8 ECHR. There was no general presumption that a person’s request should be devalued because they were seeking information which might assist them in litigation. The Court further held that the trial judge erred by relying on other factors (such as the doctor’s express refusal of consent). Irvin LJ dissented on all these points. He found that there is a presumption against the disclosure of ‘mixed personal data’; the prospect of the patient launching litigation against the doctor is a ‘weighty factor’ when considering whether to release data; and that the GMC had not properly considered the doctor’s privacy rights.

On the UKHRB

  • Martin Downs has written an article on the recent Supreme Court ruling on Equal Civil Partnership. He also wrote an earlier article outlining the background here.
  • There are several new episodes of Law Pod UK: the first is on Brexit (featuring Catherine Barnard), and the remainder are highlights from a seminar on Inquiries and Inquests.
  • Michael Rhimes explains two recent judgements from the Canadian Supreme Court concerning religious freedom.
  • Jeremy Hyam QC posted about the medical negligence case of R (Parkinson) v. HM Senior Coroner for Kent and Others.
  • Michael Paulin considered the Pimlico Plumberscase, in which the Supreme Court ruled on the employment status of a contractor.

Events:

  • ALBA Summer Conference, Saturday 21st and Sunday 22nd July 2018 at St John’s College Cambridge. More information here.
  • Reform of the Parole Board, HRLA, July 3rd at Matrix Chambers. More information here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com

The post Round Up: detainees, Grenfell, and discrimination in UK pension law. appeared first on UK Human Rights Blog.

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As predicted on this Blog, the Supreme Court has made a declaration of incompatibility covering sections one and three of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership).

In Steinfeld and Keidan, R (on the application of) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (27 June 2018) the Court found that the provision was contrary to article 14 of ECHR taken in conjunction with article 8 of the Convention.

To an extent, this was not a surprise as, by the time the case reached the Supreme Court, the government had conceded that the current situation in which same sex couples have had a choice between marriage and civil partnership since 13th March 2014, whereas heterosexual couples only have the option of marriage, is discriminatory.

The Court of Appeal (with the significant dissent of Arden LJ – as she was then) had been prepared to grant the Government time to remedy the situation (most likely by extending civil partnerships or making them a closed category to new entrants). Patience expired by the time the case reached Parliament Square. Lord Kerr gave a somewhat acerbic Judgment for the whole Court. A flavour is given by the following sentence:

In light of what we were told was the government’s awareness that the effect of introducing MSSCA was inequality between same- and different sex couples, [they] displayed, at best, an attitude of some insouciance.

It was apparent that the Court was left unimpressed by arguments that the Government should be given time to remedy the anomalous state of affairs when the Court believed that it had created a new form of discrimination by the way it framed the Marriage (Same Sex Couples) Act 2013.

However, the Court also used one paragraph from its Judgment in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657 at [343] to explain the significance (and limitations) of its eventual course of action namely, a Declaration of Incompatibility:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.

What now?

As stressed by Baroness Hale, in the course of oral argument before the Court, by issuing a Declaration, the Court has left it up to Parliament how to act.

In PMQs straight after the Judgment was handed down, the chief parliamentary cheerleader for equal civil partnerships, Tim Loughton MP offered his Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill as the perfect vehicle with which to extent civil partnerships to all. Using the style which was met with such success in the last general election, the Prime Minister responded

We have committed to undertake a full review of the operation of civil partnerships. I know that there has been a lot of discussion with him about his Bill. We are supporting his private Member’s Bill, which would enshrine that commitment in law.

The proposals for the Review had been contained in a Command Paper published on the eve of oral argument in the Supreme Court by Penny Mordaunt MP. The reviews of this approach contained in the Judgment of the Supreme Court were show closing.

There must be many in government who wished that Justine Greening MP were still the Equalities Minister and had been allowed to bring forward a Bill in this session to extend civil partnerships to opposite-sex couples. We know so much about this as a Report entitled, Options for Extending Civil Partnerships to Opposite-Sex Couples was leaked to the Guardian on the eve of the Supreme Court hearing. It appeared to identify three problems that needed to be examined:

  • The estimated £3.3bn bill to equalise occupational pension rights – The Civil Partnership Act 2004 created a regime for the recognition of same sex relationships modelled on that in Vermont which pretty much entirely replicated the rights and responsibilities available through marriage. One of the only anomalies was a less favourable provision for survivor benefits from an occupational pension but even that was equalised courtesy of the Supreme Court in Walker v Innospec Ltd.
  • Devolution issues – Civil Partnership was introduced as a UK wide measure with the agreement of the Scottish parliament (NI was under direct rule at the time). Scotland has already undertaken a consultation exercise and its preparatory documents are of a really high standard. Civil Partnership reform here may create further difficulties in the North of Ireland.
  • Recognition of opposite-sex partnerships – this is because Civil Partnerships/Civil Unions/Registered Partnerships – as the different names suggest, come with quite a variety of legal consequences and formality.

The government could just make current civil partnerships marriages by Act of Parliament. This was the model followed by most other countries that had originally created civil partnerships to recognise same sex relationships. However, that ship has probably sailed given the number of people who have entered into civil partnerships since marriage was opened up. Helen Fenwick and Andy Hayward of Durham law School have set out the perils of this approach in the most recent Child and Family Law Quarterly in an article entitled: From same-sex marriage to equal civil partnerships: on a path towards ‘perfecting’ equality? [2018] 2 CFLQ 97 (£). It also points out that even closing civil partnership to new entrants – as was done in the Republic of Ireland, has its problems.

Readers should beware some of claims as to the numbers of persons who are currently in civil partnerships deployed by some people who should know better. The Government and Resolution and other interested parties should co-opt Elizabeth McLaren of the ONS immediately to advise them on all the statistics. Readers should follow StatsLiz on twitter.

Arguments for civil partnership based on protecting the rights of millions of cohabitants should also be treated with caution. An opt-in system that precisely mirrors the legal consequences of marriage for the purposes of domestic law appears to be an unlikely solution to the problems faced by many unwary and vulnerable cohabitants.

Similarly excoriating comment about the amount of money the government wasted defending the equal civil partnership litigation seems misguided. In a reply to a written question, Home Office minister Victoria Atkins, said:

Since the start of the proceedings in 2014, the government has spent £64,923 in legal costs as a result of this judicial review.

This seems a strikingly low figure and yet another reason why James Eadie QC so thoroughly deserved his recent knighthood.

Now that I have established myself in the prediction market. It is irresistible to continue. If I were Rebecca Steinfeld and Charles Keidan I would be tempted to talk to the Registrar at Chelsea about the possibility of a civil partnership ceremony in June 2020.

Martin Downs is a barrister at One Crown Office Row.

The post Equality won’t wait – Supreme Court rules in Equal Civil Partnership appeared first on UK Human Rights Blog.

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