Attempted Suicide Court Appeal Fails

May 7, 2013 No comments

A landmark case in the challenge to the ban on assisted suicides – Marie Fleming’s assisted suicide court appeal has been rejected by the courts in Ireland.  59 year old Ms Fleming is in the final stages of multiple sclerosis, and was given the seven-judge ruling on Saturday 5th May, 2013. The court dismissed her appeal and refused to grant her orders to allow her to be lawfully assisted to end her life when she chooses.  The court called this a ‘tragic case’.

The Supreme Court ruled that the Constitution’s right to life does not involve the right to die. The  Chief Justice, Mrs Justice Susan Denham, stated there is ‘no explicit right to commit suicide, or to determine the time of one’s own death’ written in the Constitution. Suicide used to be a crime here, but it was concluded in Fleming’s case that there was no constitutional right that the courts must oblige and protect, to commit suicide or to terminate one’s life.

The principle of equality, and equal treatment of disabled people did not apply to this case either, it was ruled. It was emphasised by the Chief Justice that nothing in the judgement of the court ‘should be taken as necessarily implying it would not be open to the State, in the event the Oireachtas were satisfied that measures with appropriate safeguards could be introduced, to deal with a case such as that of Ms Fleming’s’.

Previously, Ms Fleming had claimed that the ban on assisted suicide (Section 2.2 of the Criminal Law Suicide Act 1993), in her case and circumstances as unable to take her own life unaided, infringed her personal autonomy rights under the Constitution and European Convention on Human Rights. She suggested discrimination against the disabled that an able bodied human can take their life lawfully and unaided, while a disable person cannot be lawfully aided to do the same thing.

Last week, her claims were dismissed by the Supreme Court. Last year in January, the High Court came to the conclusion that the ban can be completely justified under the Constitution to protect the vulnerable members of society, and this cannot be diluted in any case.

Cost & Access to Justice Changes this April

April 1, 2013 No comments

The government have confirmed that the Jackson reforms will come into force on the 1st April 2013 as scheduled, however there is still controversy over the proposals. At the centre of the reforms initiated by Lord Jackson’s investigation, is who pays for the success fee that lawyers charge when they successfully win a case. The reforms suggest the claimant should bear this burden out of the damages they are awarded.

The implications of this are that lawyers will be less able to take on cases where there are complexities which result in a case being difficult to win and those who have no choice but to sue due to serious injury will have to pay for lawyer fees out of their damages.  In terms of a success fee, this will be limited to 25%, but this will be paid for out of the damages awarded to the claimant. A raise in general damages, by around 10%, has offset this.

There are concerns over how these proposals will affect access to justice, which is a constitutional right and as such there are some who predict this could lead to more litigation with claims under the Human Rights Act.

1There are also concerns surrounding the implications for law firms. Before cases go to court there will need to be a budget drawn up and set by each side and there is a real fear that these will be fixed too low for practices to maintain practice, this leads to an inevitable work ethic of reducing the time and effort put into a case.  There is also vast academic criticism stating that the proposals are inconsistent with the principle of civil justice, as it is not allowing full compensation for wrongful injury, instead claimants are having to lose damage to pay the success fee.

Despite the concerns surrounding the proposals and how soon they are being implemented, the House of Lords have held a debate on the draft regulations and stated that implementation on the 1st April is not an unreasonable timescale.

Discrimination case victory clarifies the rights of agency workers

March 10, 2013 No comments

The case of Corinda Pegg serves to highlight that whatever advances there have been as regards human rights, there is still more that can be done to address the human rights of the disabled.

Decided last September, but with judgement reserved until only recently, an Employment Tribunal ruled in favour of former agency worker Corinda Pegg following an unfair dismissal claim against Camden Council on grounds of disability discrimination.

Ms. Pegg had been an agency worker and suffered depression following several bereavements. Taking absence from work, she sought help for her depression. Mental health problems are regretfully not that straightforward to deal with; upon returning to work, she was sometimes late, and still showed similar symptoms of her illness. When questioned about this, she explained that this was the nature of her disability.

Admitted to hospital two months later following a panic attack, after working on behalf of Camden Council via two recruitment agencies for nearly a year, she was told over the phone that her employment was finished. The managers cited poor attendance and punctuality.

Additionally, there was an issue of confidentially. Flouting the principle that medical details and issues are confidential, emails from the agency revealed that her illness was openly discussed by colleagues and managers. The agency emails also revealed that action to end her employment had begun before she had been questioned further about her absences and illness.

Ms. Pegg took Camden Council to an Employment Tribunal, citing unfair dismissal based on discrimination. The legal issue was what exact rights and protections agency workers have concerning discrimination by an organisation they are supplied to. The judge ruled that Camden Council was under a legal duty not to discriminate or to deviate from her rights. In her case, she was obliged to work for the organisation; as such, her unfair dismissal claim was upheld.  The case was referred to a full Employment Tribunal for judgment. Sitting only very recently, that full hearing awarded former school travel planner Ms. Pegg £35,892.08 in damages.

The case demonstrates that in certain circumstances, some vulnerable groups and some particular employment or voluntary circumstances are still not afforded human rights protections by regulations or law. This case, however, goes a long way in redressing that imbalance. Additionally, in an era where employees are increasing being supplied on a temporary basis by staffing agencies, the clarity as to what rights and protections such workers have is welcome. The final word goes to Equality and Human Rights Commission Legal Deputy Director Wendy Hewitt: “there was an urgent need to clarify the legal status of agency workers who have been discriminated against, given the increase in this type of working arrangement. This case clarifies that agency workers are entitled to the same degree of protection from discrimination at their place of work as permanent employees.”

Appeals Court Finds Background Check Laws Violate Human Rights Protection

February 5, 2013 No comments

A number of privacy activists have raised concerns that the manner in which background checks are conducted violates the Human Rights Act. The government has been under a considerable amount of pressure to reform these laws as a number of interest groups have started petitioning them. However, the government now faces pressure from a much more powerful agency, the appeals court.

One of the most contentious debates has centered around a legal requirement that all job applicants must disclose all violations. Even very minor violations that did not result in an arrest must be disclosed to potential employers.

arrest

A senior judge from the appellate court recently ruled in favor of the numerous groups that protested the privacy laws. Lord Dyson ruled that the blanket disclosure requirement violated people’s right to privacy and created an unreasonable burden. The ruling also suggested that Dyson took issue with the fact that this disclosure interfered citizens’ rights to due process, because many citizens have been forced to disclose violations that they were not even found guilty of.

Dyson originally issued his ruling in December. He asked that his decision not be published for one month, because he wanted to make sure that the government would have sufficient time to respond.

Most critics were most concerned about protecting the privacy of job applicants who have made mistakes in their youth. People are concerned those who have made minor mistakes while they were young may have difficulty finding meaningful employment as they enter the workforce. However, the new ruling also provides a safety net for adults who have made minor mistakes earlier. One adult woman was given a warning after stealing some fake nails from a scientist.

The Home Office may choose to appeal the decision to the Supreme Court. They have less than a month to do so before Dyson’s ruling is permanently instated.

Will leaving the EU affect our Human Rights?

January 29, 2013 No comments

The last few days have seen a lot of speculation, speeches and commentaries on the future of the UK in the EU around the Continent. After the Scottish referendum next year, it is a possibility that the remaining UK will get a EU referendum within the decade.

If the result of that is that the UK does sever its ties to the European Union, there will be great political, diplomatic, financial and legal change for this nation as we regain our sovereignty in many areas.

If this jurisdiction leaves the European legal system, that would have an impact on our national legislation. However, what would be impact of that change on domestic human rights law? Initially, it may seem that- with most of our human rights law coming from Europe- that human rights here will be dramatically effected. The reality, though, is that legally such a separation would bring little change for human rights.

The UK is bound by relevant EU legislation (e.g. the Charter of Fundamental Rights of the European Union as enacted by the Lisbon Treaty) and regulations concerning human rights, but it runs deeper than that; the concept of and rules concerning human rights are now firmly embedded into British law. Since the introduction of the Human Rights Act 1998 (HRA), there has been a UK- as opposed to EU- statute and subsequent regulations governing human rights. A withdrawal from the EU would probably (though it is not certain) either nullify or have the potential to nullify our legal obligations and requirements to the Court of Justice of the EU (CJEU). However, national legislation such as HRA would not be affected; it is on our domestic statute books until it is repealed, leaving human rights unaffected by a withdrawal form the EU.

The European Court of Human Rights

The European Court of Human Rights

Additionally, since the 1950’s the UK has been a signatory to the European Convention on Human Rights (ECHR); indeed, it was the UK delegation at the treaty talks led by lawyer Sir David Maxwell- Fyfe MP who was incredibly influential behind its drafting. It must be noted that this is is an international treaty which is outside the scope of the EU per se. So far, 47 nations have signed it- all in or adjoining the European region- but not all are members of the EU. As this country is till a signatory to the EHR, is represented in the European Court of Human Rights (the transnational court which administers and hears cases concerning ECHR), and has a keen and vested interest in the treaty. As such, even if the UK was to leave the EU, this country would still be involved in the ECHR, which, as has been mentioned, is an international human rights treaty independent of the EU. The result would be that our human rights obligations and regulations would not change.

A principle of law concerns the cases that go into court. The decisions in the courts are the basis for subsequent judicial decisions, as the rulings in cases are either applied, distinguished or over ruled by subsequent judgements in similar (or different) cases. The body of case law helps to shape the legal system and concepts that we have today. The rulings in the individual case have a impact in the development of the legal system and principles. For example, the House of Lords decision in the famous (in legal circles…) 1936 case of Donoghue v Stevenson provides the basis for many modern civil and tort liabilities and obligations.

Applying that concept, although human rights is a relatively recent area of UK law, after a raft of human rights cases coming before UK judges, the canon of case law now contains many binding legal decisions concerning human rights (R (ex parte Razzoqi) v Secretary of State for the Home Department, Assange v The Swedish Prosecution Authority, AAA v Associated Newspapers Ltd, etc). Consequently, human rights law is now firmly embedded in the UK legal system, independent of any legislation and cases emanating from the CJEU in Luxembourg. If the UK decides to leave the EU, such cases would still be a part of the UK legal system. The human rights case law in our domestic legal system, and the precedent they have set, would be unaffected by the UK leaving the EU.

It was as far back as Magna Cart in 1215, and the Bill of Rights in 1688 that the lawmakers of the time first had a glimmer and vague idea of the concept of we call now ‘human rights’. Detention without just cause, trial, and reason was first enshrined as habeas corpus in Magna Carta- and freedom of speech was first mentioned in the Bill of Rights. Since the end of the Second World War, the Uk has been quite active in the human rights arena, and has seen a vast expansion of human rights related cases, regulations and legislation. With such a heritage, with or without ECHR, or EU or UK legislation, it is unlikely that the pursuit of human rights and dignities will ever disappear,or be dramatically altered, in the UK legal system. This country may withdraw from the EU over the next decade- but our guiding principles of human rights will still flourish independent of any EU controls or encouragement.

If the UK withdraws from the EU, the government could repeal most aspects of EU legislation from the statute books, and repatriate more legal powers to the Supreme Court. However, the impact of human rights law, both domestically and EU related, over the last 50 years has been such that, in reality, any withdrawal from the EU would have very little effect on human rights law. Either way, for good or bad, human rights law is here to stay in this jurisdiction.

Article written by The Law Ninja