UK: A decision of a judicial body should be final and binding and not capable of being overturned by a member of the Executive

The Supreme Court has ruled that Dominic Grieve, as Attorney General, did not have the power to overturn the determination of the Upper Tribunal, that twenty-seven letters exchanged between Prince Charles and ministers in seven government departments between 2004 and 2005 should be released.

The question posed to the Supreme Court was:

[...] whether communications passing between HRH The Prince of Wales and ministers in various government departments [...] between September 2004 and March 2005 [...] should be disclosed pursuant to a request made by Rob Evans, a journalist who works on the Guardian newspaper.

The Supreme Court judgment brings to an end the ten-year protracted legal battle. In April 2005 Rob Evans requested the disclosure of the letters under section 53(2) of the Freedom of Information Act 2000 and regulation 18(6) of the Environmental Information Regulations 2004. Initially the departments refused to confirm having possession of the letters, but later acknowledged it. However the departments refused to disclose the letters, considering the letters exempt  from the Act and the Regulations. Following this, Mr. Evans complained to the Information Commissioner, but the Commissioner upheld the departments' refusal in a reasoned determination in December 2009. Mr. Evans appeal to the First-tier Tribunal was transferred to the Upper Tribunal, which issued a reasoned determination in September 2012.

The departments did not appeal the determination of the Upper Tribunal. On October 16th the Attorney General issued a certificate claiming that he had formed the view that the departments had been entitled to refuse disclosing the letters and outlined his reasoned.

Mr. Evans sought to overturn the Certificate on the ground that the reasoning outlined by the Attorney General did not constitute reasonable grounds within the meaning of section 53(2) and, or because the "advocacy correspondence" was concerned with environmental issues, therefore the Certificate was in breach of Directive 2003/4/EC and, or Article 47 of the Charter of Fundamental Rights of the European Union. Mr. Evans' claim was dismissed by the divisional Court of the High Court, but was upheld by the Civil Division of the Court of Appeal on both grounds.

In a five-two majority verdict Lord Neuberger upheld the Court of Appeal judgment, that it is not reasonable for a member of the Executive to issue a certificate simply because he differs in opinion from that adopted by a court, for two reasons.

One, to allow a member of the Executive to overrule a judicial decision breaches two constitutional principles. The decision of a court is binding between parties and cannot be ignored  or set aside, and the decisions and actions are open to review by the court at the suit of an interested party.

Two, the earlier conclusion was reached by the Upper Tribunal, a court of record, after a full public oral hearing. In contrast, the later conclusion was reached by an individual who consulted one side of the correspondence, without argument on behalf of Mr. Evans, received no fresh facts, and simply differed in opinion.

In determining on what grounds a certificate can be issued, Lord Neuberger agreed Lord Dyson Master of the Rolls in the Court of Appeal:

Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Moreover, Lord Neuberger concluded that the limitation on the grounds upon which a certificate  can be issued also apply following a decision of the First-tier Tribunal.

Although not strictly necessary, Lord Neuberger also considered the effect of the 2003 Directive on the Certificate, concluding that it would have been invalid in so far as it related to environmental information contained in the advocacy correspondence. 

UK: Benefit Cap (Housing Cap) Regulations 2012 are lawful

The Supreme Court has upheld the benefits caps imposed by the Government as lawful. However, the Court found that the effect of the policy breach the government's obligations under the United Nations Convention on the Rights of the Child.

The lawfulness of the benefits cap was challenged by two single mothers on the ground that it is discriminatory and unfair. It was also submitted that the cuts imposed amounted to a violation of human rights and that the effect was disproportionate on women, particularly for those seeking to escape domestic violence.

'SG', is a single mother with six children residing in a two-bed flat in East London. The impact of the benefit cap leaves her and her six children with £80-a-week to live on.

'NS' has three children. 'NS' and her three children reside in a two-bed flat in outer London after a history of domestic violence and sexual abuse in her marriage. The impact of the benefit cap leaves her with a shortfall of £50-a-week in rent.

In a three to two majority verdict the Court found the Benefit Cap (Housing Benefit) Regulations 2012 were not unlawful under Article 14 of the European Convention on Human Rights together with Protocol 1 to the Convention.

In finding the government are in breach of obligations under the United Nations Convention on the Rights of the Child, the Court found the Secretary of State for Work and Pensions had failed to:

[...] show how the cap was compatible with his obligation to treat the best interests of the child as a primary consideration.

However, Lady Hale in her dissenting opinion noted that the benefits cap breaks the chain between the benefit and need:

Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children.

The benefits cap limits the maximum a family can claim to £500-a-week, equivalent to the average earnings of a working household. The benefits cap applies regardless of the number of children in the family or the level of local rents.

CJEU(O): Non-consultant hospital doctors are entitled to a minimum rest period

The Court of Justice of the European Union has found Ireland is in breach of European Union Directive 2003/88/EC (Organisation of Working Time Directive) concerning the working hours of non-consultant hospital doctors (NCHDs).

The European Commission took the action against Ireland for failing to fulfill its obligations under Article 3, Article 5, Article 6, Article 17(2) and Article 17(5) of the Directive.

In January 2012 the Irish Medical Organisation (IMO) and the Health Service Executive (HSE) signed a collective Agreement concerning the working time of non-consultant hospital doctors. The agreement sets out a standard employment contract for non-consultant hospital doctors.

Under the current conditions, the work of non-consultant hospital doctors is split between time allotted for training and time spent treating patients. However, Clause 3(a) of the Agreement stipulates that:

[...] time spent training as scheduled in the duty roster and at a time when the NCHD is not on call is not to be counted as working time.

Advocate General Bot found non-consultant hospital doctors are entitled to a minimum rest period, and the decision not to include the training time in the calculation of the working time for non-consultant hospital doctors "encroaches on the minimum rest period". Moreover, Advocate General Bot found the time spent training and the time spent treating patients are intrinsically linked.

Ireland incorporated the Directive into national law through the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, as amended by the 2010 Regulations.

Although the opinion of Advocate General Bot is not binding, the Court of Justice usually upholds the opinion handed down. The Court of Justice is expected to provide a binding judgment later this year.

UK: Court has no power to strike out an application for financial provision as an abuse of process, even where there is no reasonable prospect of success

The Supreme Court has given permission to Kathleen Wyatt, a divorced woman, to file a claim seeking a financial order thirty-two years after splitting from her then husband, Dale Vince.

The two met in 1981, aged 21 and 19 respectively, marrying later that year. Ms. Wyatt bore a child from a previous relationship when she met Mr. Vince.

The couple had a son together in 1983 in Norfolk after which they split up. The couple legally divorced in October 1992. Subsequently, Ms. Wyatt had two more children from a later relationship.

Mr. Vince, now a wealthy businessman, started out by experimenting in wind power at Glastonbury, fixing a windmill to a pylon and charged mobile phone batteries. In 1996 Mr. Vince began earning a substantial income after securing a bank loan for a wind turbine at Nympsfield and founded Ecotricity - a green energy company.

Ms. Wyatt, who raised the split couple's only child, currently residing in Monmouth is seeking a financial order of £1.9 million. Mr. Vince resides in Gloucestershire with his second wife. Ecotricity has an estimated worth of £57 million.

The Supreme Court held in a unanimous judgment that the Family Division of the High Court could not strike out any claim without the issues being fully considered.

However, Lord Wilson warned of the "formidable difficulties" Ms. Wyatt faces in successfully seeking a financial order due to the lengthy delay and the fact that the relationship lasted less than three years.

But Lord Wilson observed that Ms. Wyatt may be able to rely on the fact that she play a greater role in raising their only child, justifying the financial order.

While Lord Wilson ruled out the prospect of an award approaching £1.9 million, he warned that it is:

[...] a dangerous fallacy, albeit currently propounded by those who favour reform along the lines of the Divorce (Financial Provision) Bill currently before the House of Lords, that the current law always requires rich men to meet the reasonable needs of their ex-wives. 

Ms. Wyatt will now have to seek any financial order in the Family Division of the High Court.

The Oireachtas may not delegate points of principle and policy

The Court of Appeal has ruled that legislation prohibiting the sale of psychoactive substances is unconstitutional.

The three-judge Court unanimously found Section 2(2) of the Misuse of Drugs Act 1977 violates Article 15.2.1 resulting in the secondary legislation the Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order 2011 (S.I. No. 551 of 2011), invalid.

Mr. Justice Gerard Hogan found Section 2(2) of the 1977 Act unconstitutional because the section proclaims to give law making powers to the government that, in the absence of appropriate principles and policies, are vest exclusively in the Oireachtas:

The fundamental difficulty here is that the 1977 Act determined that only "certain" dangerous or harmful drugs would be controlled, thus leaving important policy judgments to be made by the Government rather than by the Oireachtas. 

The case concerned the prosecution of Stanislav Bederev, who was charged on April 26th, 2012, for possession for sale of Methylethcathinone. Mr. Bederev brought a High Court challenge seeking to halt criminal proceedings on the grounds that section 2(2) of the 1977 Act was unconstitutional, thus invalidating the 2011 Order.

In May 2014, Mr. Justice Paul Gilligan found the legislation was directed at drugs that would have a negative and detrimental effect on individual health and society.

Comment: Despite what was reported in the media in the 24 hours after the judgment, the Court of Appeal did not accidentally legalise hard drugs.  

EW: Smoking ban applies to Crown prisons

The Administrative Division of the High Court has ruled that the prohibition of smoking in certain premises, places and vehicles applies to state prisons for which the Crown is responsible.

The case was taken by Paul Black, a prisoner at HMP Wymott since 2009. Mr. Black, convicted in 2007, is serving a sentence of indeterminate detention for public protection for sexual assault and outraging public decency. Mr. Black is a non-smoker with a history of serious health problems including angina and dysphnoea. In 2009 he required surgical intervention for an anterior myocardial infarction.

Three submissions were made on behalf of Mr. Black. The third submission, that the failure to enforce Rule 20(1) and Rule 34(2) of the Prison Rules 1999 is a breach of Mr. Black's expectations and the public law duty on the Secretary of State, was rejected because:

[...] the concept of legitimate expectation has nothing to do with the present case. As I understood it, reliance upon that concept was fairly abandoned at the hearing before me. The reason for this is that the present case does not concern a policy; it concerns a rule of law [...]

The second submission, that the Smoke Free Compliance Line be accessible, confidential and anonymous under Article 8 and Article 14 of the European Convention on Human Rights, was also rejected:

In my judgment, the difficulty with [Mr. Black's] submission on this narrower ground is that there is no authority to support it, whether in the European Court of Human Rights or in the domestic Courts.

However, Mr. Justice Rabinder Singh did accept that Chapter 1 of Part 1 the Health Act 2006 applies to prisons for which the Crown is responsible:

In my judgment, the Secretary of State has proceeded on an erroneous understanding of the law. In my view, Chapter 1 of Part 1 of the Health Act 2006 does apply to prisons and in particular to state prisons, for which the Crown is responsible.

The appropriate form of relief is yet to be decided by Mr. Justice Singh.