R (on the application of Edwards and another) v Environmental Agency and others: environmental claims and the rule of law

On the UK Human Rights Blog, David Hart QC has written a number of informative posts about the Aarhus Convention, which governs access to environmental information, public participation in environmental decision-making and access to justice in environmental matters.  He has a helpful introduction to the Convention here.

His most recent post concerns one of the Convention's more important features: the limitation it places on the costs a claimant will incur in an environmental claim where they would otherwise be "prohibitively expensive".  In particular, he discusses the decision of the Supreme Court in R (on the application of Edwards and another) v Environmental Agency and others.

I have no argument with Mr Hart's authoritative analysis of the law.  Rather, my quarrel is with the idea that there should be a protective costs regime carved out for one area of the law.  Accordingly, I have left the following comment:

There is an obvious breach of the rule of law here.  Legislation should be general and apply equally unless there is a good point of principle otherwise.  Carving out a special costs restriction for one type of litigation (Environmental, in this case) is a flagrant breach of that principle.  No doubt environmental claims are important, but so too are medico-legal cases (which determine our quality of life and indeed life itself in some cases), commercial cases (which determine whether we can earn a living) and indeed potentially _any_ form of litigation depending on the circumstances and the limits of your imagination. 

Moreover, once an exception has been carved out, it provides a fertile source for litigation over whether any particular case falls within the exception.  There will no doubt be some cynical cases where an environmental peg is found for what is not really an environmental case at all, or not as intended by the Aarhus draftspeople anyway (see here for a good example of the possibility of litigation over the Aarhus margins). 

Then we have the equally bad problem identified by another commentator to Mr Hart's post: if one removes the risk of proceedings for bringing a claim, then the opportunity for what is at best opportunism and at worse blackmail is obvious.  Exactly this happened in New Zealand environmental law with its Resource Management Act, which allowed objections to planned development to be made by people who would not bear the cost of their objections failing, so a nice little earner (as they don't say in that country) was fashioned by those who figured out that they might have their objections bought off ... 

Of course, the rule of law also requires that citizens be able to bring proceedings to enforce their rights or clarify their legal position.  If the courts are too expensive for all but the smallest fraction of society to use, all the rights they supposedly uphold will be illusory.  But, going back to the first point, this applies to all rights and hence all litigation.  There is no justification for special regimes here and there - employment, family, environment, to name just three we presently have - because indigent but worthy claimants can be found everywhere. (Mrs Donoghue was one, for a start - and her case concerned neither environmental law, nor employment nor family ... )

Where is Rosa Parks? Universities and segregation

Last week the Supreme Court predictably dismissed the appeal of a Christian couple who had refused to let a double room to a homosexual couple who were in a civil partnership (Hall and another v Bull and another  [2013] All ER (D) 307 (Nov)).  They insisted that only married couples could stay in such rooms, so the homosexual couple sued under the Equality Act (Sexual Orientation) Regulations 2007 (since replaced by the Equality Act 2010, without material alteration).  The regulations prohibited anyone offering services to the public from discriminating on various grounds, including sexual orientation.

According to the proprietors, they were not discriminating directly on the ground of sexual orientation, but rather on the ground that the couple were not married.  It was accepted that, if so, the policy would have been indirectly discriminatory against homosexuals, since (at the time) they could never get married, whereas a heterosexual couple could. In those circumstances, the proprietors offered two ways in which the policy could be justified or excused.

The Supreme Court held that the policy equated to direct discrimination. Whatever explanation was offered, the blunt truth was that the policy of the proprietors treated homosexual couples differently. At that point the arguments about indirect discrimination fell away (though the Supreme Court held that the proprietors would have lost on them anyway).

Did the result mean that the rights of homosexuals to equal treatment "trumped" those of Christians wanting respect for their beliefs?  No, said Lady Hale, because the result would have been the same in reverse.  That is, had a homosexual couple run a B&B and refused admission to a Christian couple for whatever reason, the Christian couple would have been able to sue them in the same fashion.

The logic is simple: those offering goods or services to the public cannot discriminate on certain grounds, including gender, sexual orientation and religion.

So why then did Universities UK, the representative organisation for the UK's universities, publish guidance suggesting it might be acceptable for a religious speaker at a university - of all places - to demand segregated seating before speaking?  Indeed, such an event occurred recently, though the guidance mentions it only as a hypothetical possibility.  Nick Cohen takes apart the argument in the Spectator.

If a homosexual couple being disallowed to share a room with a double bed is unlawful discrimination, why is it not equally discriminatory to allow two men to sit together at a university event but not a man and a woman (even married)? If the speaker used to belong to the Dutch Reformed Church and demanded that black and white students be separated, they would be sent on their way.  So too a religious bigot who demanded Jews and Gentiles be separated.  And so should anyone trying it on with gender discrimination.

Of course one might also wonder why a university was keen on someone preaching religious-based discrimination speaking there in the first place.  The cornerstone of any university has to be that ideas have to be advanced on the basis of reason and evidence.  All theories have to be subjected to falsification.  If any theory is found inconsistent with counter-arguments and evidence, it should be modified or abandoned accordingly.  Any religious leader showing up to offer his (and it is usually his) theory that men and women should not sit together can and should expect to have to argue the case, not simply declare it and assume there will be unquestioning and even fawning acceptance.  So too any other arguments they might offer on any subject whatever.

It is not too much of an exaggeration to say that all of our present day prosperity and freedom derives from the Enlightenment, and all the hard fights against superstition, obscurantism and intolerance that were fought and won in those times.  It seems all those battles are having to be fought all over again.

Court and Bowled: tales of cricket and the law

The reason for recent blogging silence is that I am working on a new book, Court and Bowled: tales of cricket and the law, to be published next year.  It can be pre-ordered here.  The blurb is as follows:

'In summertime village cricket is the delight of everyone' the English judge Lord Denning famously wrote, in a case brought by someone who clearly disagreed with him.

The case was but one example of how the game of cricket cannot always avoid the law. Neighbours or passers-by get hit by stray cricket balls, protesters interrupt matches, players get into fights or take drugs, and not a few involved with the game sue each other for libel.

This book looks at a number of stories where cricket or cricketers gave rise to a legal dispute. It begins with a short history of cricket as it appears in the early law reports, including the case from 1598 which contains the very first known use of the word “cricket”. It then turns to individual cases from Victorian times to the present day.

Some of the disputes have been of fundamental importance to the game itself. The ruling in Bolton v Stone affected village and indeed impromptu cricketers everywhere, while if Kerry Packer had lost his High Court action in 1978, his cricket revolution would have been over before a ball had been bowled.

Other cases raise issues going well beyond the boundary ropes: Basil D’Oliveira’s omission by England from a tour of South Africa, for example, ended up being considered in the highest echelons of power in both countries.

All of the stories demonstrate something common to both cricket matches and court cases: behind the intrigue, entertainment and amusement of both there are real people and real human stories, with all the usual human emotions and fallibility.

The book will be of interest not only to cricket fans or lawyers but anyone interested in tales of high (and low) human drama and great ethical, moral and legal dilemmas.

On hold

As will have been apparent for some time, I am not regularly blogging at the moment and in all probability will not be until some point next year.  I am working on a new project in the meantime, and will update here and on twitter in due course.

Intervention in Syria

I have posted the following comment on the UK Human Rights Blog this morning:

Much as the international law question is interesting regarding Syria, it is nothing to the point. There are a lot of straw men arguments floating around. No-one disputes that what has happened in Syria todate has been a disaster. No-one disputes that the use of chemical weapons is appalling. There is a moral case to do something about it, and perhaps a legal one too.

But we then hit the rocks of reality: the real question is whether we have the capacity to do anything about it. If we fire a few missiles at Syria the regime may respond in a variety of ways. It might cease using chemical weapons and simply go back to airstrikes, artillery and other means which have so far killed 100,000 people. What the moral or legal difference between killing by those means and killing by chemical weapons is I am unsure – I doubt the victims noticed any difference.

Alternatively, the regime might increase its use of chemical weapons to try and hasten the defeat of the rebels before Western intervention can make a telling difference. Or it might try something seriously desperate such as attacking Israel (either directly or by a proxy group), in the hope of drawing in its Iranian ally and sending the West’s interest well and truly elsewhere. Or it might sponsor some terrorist attacks on British soil. Or the Russians and/or Iranians might (if they haven’t already) supply supersonic anti-shipping missiles to the Syrians, who will use them to sink a few Western warships and cause chaos among Western leaders about what to do in response.

It seems to me that Assad will probably still win the civil war, and all we will do with a few token strikes is delay his victory – and consequently increase the casualties on all sides.

Or the regime might fall – in which case the civil war will continue until the country either splits into different territories with an uneasy truce, or until one side is strong enough to crush the rest.

Those calling for intervention must answer two questions: (i) what is the precise goal of any military action; and (ii) how far are you prepared to go to achieve that goal; that is, if the initial strikes fail, how much force are you going to use (or to put it another way, how much blood and treasure you are prepared to expend).  It does not help in this regard that the UK defence budget has been drastically reduced in recent years.  The Type 45 destroyers, for example, have not been fitted with cruise missiles - the first weapon of choice for any attack on the Syrian regime.

As well as the obvious lessons from Iraq and Afghanistan, we might also remember Kosovo (an illegal war, incidentally, whatever one thinks of the moral situation), where a few token strikes did not deter Milosovic, forcing the West to mount a very expensive bombing campaign that only succeeded when the surrounding countries started to join NATO, thus opening up land borders and the possibility of a quick ground assault. 

What we might do instead is assist Jordan by supplying tents, food, sanitation equipment etc for the increasing number of refugees it is taking from the conflict. That would be a humane and tangible contribution even if it would not stop the killings in Syria itself.  Funding for the operation could come from the international aid budget, the source of some controversy recently.  

Alan Turing in the Times

Published in the Times on 26 July 2013:

Sir

Many arguments have been raised by your recent correspondents concerning Alan Turing, but the nub of the case can be stated simply.  Turing was not wrongly convicted because he was a genius; he was wrongly convicted because his actions should never have been a crime in the first place.  His conviction would have been equally unjust had he been a drunken layabout instead of a national hero.

There is no need for a retrospective pardon, because Parliament has already made clear that Turing and others should not have been convicted, by repealing the relevant offence, and by the passage of various equality laws in recent years.

The last Englishman: Colonel A D Wintle MC

I have been published in the New Law Journal (vol 163, 26 July 2013, p 22) this week, concerning the legendary Colonel Wintle. The article can be found here.

An ugly affair

I have been published in this week's New Law Journal here (££) on the libel case involving Stephen Berkoff and Julie Burchill.

CM v The Executor of the Estate of EJ (deceased) [2013] EWHC 1680 (Fam): a Right to Know

Modern medical ethics have their origin in the very roots of Western Civilisation.  There is the Hippocratic oath, deriving from the late fifth century BC, part of which is usually translated along the following lines:

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

Then there is the Biblical Parable of the Good Samaritan (Luke 10:29-37), in which Jesus tells the story of the beaten and injured traveller (who might be Jewish) by the side of the road, whom the eponymous Samaritan goes out of his way to assist despite an historic conflict between Jews and Samaritans.  The resultant concept of “neighbour” as one’s fellow man has been heavily influential not only in medical ethics but also in law, most famously in Lord Atkin’s speech in Donoghue v Stevenson.

Fully imbued with modern ethics and the spirit of both Hippocrates and Luke was the claimant in CM v EJ [2013] EWHC 1680 (Fam) an interesting case raising some fundamental principles of medical law and philosophy.

The claimant, referred to as “CM” in the judgment, was a medical doctor, a consultant and professor at one of London’s principal teaching hospitals.  In May 2013, she was driving home, off duty, when she saw the body of the deceased, EJ, lying motionless on the pavement. EJ was seriously injured and had bled profusely. CM performed emergency first aid on EJ but the latter died at the scene. In the course of the resuscitative efforts, CM's hands became covered with EJ's blood.

On her return home, CM noticed that she had a number of abrasions on her hands, probably caused by the alcohol handwash which she used in her work. She was anxious about the risk of being infected with a blood-borne disease and commenced a course of prophylactic antiretroviral medication. The drugs, which had the potential to cause long-term harm, left CM feeling extremely unwell.

CM wished to establish whether there was any risk that she had been contaminated by any serious blood- borne illness. The coroner was asked for his co-operation in obtaining samples of EJ's blood or tissue for testing. He had no objection, but the problem was that he had no free-standing power to permit the sampling or testing.  It had to come either from the deceased’s immediate living relatives, or from an order of the High Court. 

  

The police were able to trace a family member, OP, who was EJ's mother's cousin. He confirmed that EJ's parents lived abroad and were not yet aware of her death. OP stated that he was EJ's closest relative in the United Kingdom and gave his consent to the taking of a blood sample.  To be on the safe side, CM issued proceedings seeking declarations in the High Court regarding the lawfulness of the sampling and testing.

The governing legislation was the Human Tissue Act 2004. It created a range of offences for removing, storing or using human tissue for purposes without appropriate consent.  Under the 2004 Act, the Human Tissue Authority (“HTA”) was established to regulate activities concerning the removal, storage, use and disposal of human tissue; the HTA had in turn published helpful Codes of Good Practice which were relevant to CM’s application.

The judge in the High Court, Cobb J, held that “consent” was the fundamental principle of the Act and the associated Codes. Consent underpinned the lawful removal, storage and use of body parts, organs and tissue. In particular, the Act provided that consent was required for material (such as blood or human tissue) to be removed, stored or used for “obtaining scientific or medical information, which may be relevant to a person including a future person.” In the absence of the requisite consent, the removal, testing, or storing of human tissue would be a criminal offence (s 5).

The effect was that:

(i)        A coroner could remove, store and use relevant material for the purpose of the post mortem examination to determine the cause of death without obtaining the consent of relatives;

(ii)       A coroner did not have the power to consent to samples being taken for the benefit of a third party;

(iii)      A coroner’s consent was required before any sample could be removed, stored or used for purposes other than in the exercise of his own functions or authority.

In the circumstances, Cobb J held that it was 'not reasonably practicable' to seek the consents of EJ's parents for the removal or use of blood or tissue from EJ 'within the time available' (s 27(8)). There was no indication that EJ had other relatives in the list of 'qualifying' persons available from whom consent could be taken. Further, OP was a person in a 'qualifying relationship' within the definition of s 3(6)(c) and s 27(4)(h), for the purposes of giving consent to the removal, storage and use of samples of EJ's blood or human tissue. He had given relevant consent for the purposes of the Act. Furthermore, the coroner had indicated his agreement to the removal and testing of the relevant material, subject to the consent obtained from the qualifying person. Accordingly, that opened the gateway for the exercise of the court's discretion under the inherent jurisdiction to authorise the removal, storage and use of EJ's human tissue samples as sought by CM.

The jurisdictional hurdle crossed, the court had little hesitation in granting the relief sought. CM's request only arose because she had undertaken an act of great humanity in attempting to save EJ's life. If testing were not to be undertaken, CM would live for the foreseeable future in a state of profoundly anxious uncertainty as to whether she had contracted a serious, life-threatening illness. That would doubtless affect not only her personal well-being, but also her ability to treat other patients in the context of her highly skilled profession. Further, CM was suffering the harmful (and extremely discomforting) side-effects of the antiretroviral medication.

CM’s application was therefore allowed and the tests undertaken.  A most happy ending ensued, because the test results came back negative and CM was able to stop taking the distinctly unpleasant antiretroviral drugs. 

The result seems obvious in logic: no-one could argue that CM should be told if her act of spontaneous humanity had had tragic consequences.  The need for an answer was all the more pressing in order to lift the sword of Damocles from above her head in the form of the uncertainty about disease, and of course to allow CM to stop taking the excruciating drugs. 

Nor is the case based on unusual or improbable facts – off duty doctors treating the ill are hardly unknown.

Two interesting points of wider scope remain.  The first is the extent to which a family’s right to the body of a deceased – based on culture, religion, or anything else – should be balanced against either the right of an individual such as CM or indeed society in general.  Suppose the family had been contactable and refused consent.  Suppose CM suffered irreparable liver or kidney damage as a result of the drugs she was taking, which turned out not to be necessary anyway.  As much as one’s culture or religion or beliefs of any sort deserve respect, EJ herself was dead and therefore no longer in possession of any rights as such (and what if she would not have objected to testing but had never recorded her views in writing, but her family were of some devout persuasion and had different ideas?).  It seems to me that the coroner should have had the power to undertake the testing in the circumstances, and if the family objected once they had been informed they could seek injunctive relief or sue for damages, assuming they could establish that the coroner’s actions or intended actions were unlawful.

The same sort of question arises also in the context of organ donation: a utilitarian approach would have no hesitation in making organ donation the default choice at least and perhaps even compulsory irrespective of the wishes of the deceased, their family or anyone else.  Suppose a wave of zealotry enveloped the population and suddenly no organs were being donated and no bodies were available to medical science.  Latter day Burkes and Hares started to flourish.  Would there not be an argument for the state to act, even if there was a serious clash with the newly prevailing religious zeitgeist?

The second general point concerns the fact that in English law, CM’s actions were purely voluntary, in direct contrast to the position in most civil law countries.  An interesting post on the case on the UK Human Rights Blog explains the difference:

[M]ost civil law countries impose a positive duty to rescue, which means that if a person finds someone in need of medical help, he or she must take all reasonable steps to seek medical care and render best-effort first aid. A famous example of this was the investigation into the photographers at the scene of Lady Diana’s fatal car accident: they were suspected of violation of the French law of “non-assistance à personne en danger” (deliberately failing to provide assistance to a person in danger), which can be punished by up to 5 years imprisonment and a fine of up to 70,000 euros. 

Some food for thought, though for space reasons I will leave it there for now. 

The Telephone Murder, by Ronald Bartle

I have written a review of the above title.  The review has been published in the current edition of Criminal Bar Quarterly (Issue 2, Summer 2013, p 14).

Behind the Candelabra, in front of the Bench

I have been published in this week's New Law Journal (vol 163, 21 June 2013, p 30) on Liberace's libel trial. It is available to subscribers here.

Smith and others v Ministry of Defence [2013] UKSC 41: the fog of war descends on the courtroom

The military theorist von Clausewitz once said that no plan survives contact with the enemy.  Real life confirms it: rare it is that wars ever go to plan. Even in the most successful engagements there have almost always been needless casualties caused by equipment failure, human error or a combination thereof.  In both Gulf Wars, for example, despite the overwhelming superiority of coalition forces, the very high level of technology at their disposal, and the swift conclusion of the initial military operations with extraordinarily low allied casualties, there were still friendly fire incidents where British and American soldiers were killed by their own side due to mistaken identity.

Recognising the inevitable consequences of the “fog of war” and the undesirability of civilian judges trying to sift through the evidence long after the event, the common law has developed the doctrine of “combat immunity”, under which anything that happens during battle is non-justiciable (see for example Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, Ex p Marais).

In Mulcahy v Ministry of Defence [1996] QB 732 the Court of Appeal preferred to see combat immunity not so much as an entirely separate principle as the result of a general conclusion that it was not fair, just or reasonable to regard the Crown or its martial emanations as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war, but we can leave aside such doctrinal niceties for now.

The families of victims of one friendly fire incident in the 2003 Iraq war have brought proceedings against the Ministry of Defence (MOD).  The MOD applied to strike out the claims on the ground of combat immunity.  The Supreme Court by a majority decision has recently ruled against the MOD on that preliminary issue and allowed the claims to proceed to trial (Smith and others v Ministry of Defence [2013] UKSC 41).  There were claims arising out of different incidents, but we will confine ourselves here to what were called the “Challenger claims”.  In my view the dissenting judgment of Lord Mance was compelling.  The decision of the majority to allow the claims to proceed to trial is unsupportable in principle and may have severe practical implications. 

The Challenger claims involved one British Challenger II tank firing on another, with fatal consequences.  The claimants alleged that if the tanks had been properly equipped with existing technology and equipment, the incident would have been prevented.

The majority of the Supreme Court accepted that combat immunity was not limited to the presence of the enemy or the occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which service personnel were exposed to attack, including the planning and preparation for the operations in which the armed forces might come under attack or meet armed resistance. Further, there was no duty, in battle conditions, to maintain a safe system of work.

However, the doctrine should be narrowly construed.  It extended to the planning of and preparation for military operations applied to the planning of and preparation for the operations in which injury had been sustained.  But it did not extend to the planning and preparation, in general, for possible unidentified further operations (see Lord Hope at [88], [92] and [98] of the judgment).

With respect to the Challenger claims, at the stage when men were being trained, whether pre-deployment or in theatre, or decisions were being made about the fitting of equipment to tanks or other fighting vehicles, there was time to think things through, to plan and to exercise judgment. Those activities were sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that was imposed had regard to the nature of those activities and to their circumstances.

Recognising the dangerous implications, Lord Hope cautioned (at [100]) that:

it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.

And yet by allowing the case to proceed to trial, Lord Hope with the greatest of respect has not taken account of that paramount importance. 

The decision of the majority relies on the following argument. A casualty might occur due to an equipment problem foreseeable and entirely within the power of the MOD to remedy before long before the war had started or even looked like starting. If so, why should the MOD hide behind combat immunity for decisions taken thousands of miles away and many months before hostilities?  

The answer is set out in cutting fashion by Lord Mance. The supply of technology and equipment, training for active services, and decisions taken on the ground during an action are all inevitably inter-linked.  The claimants had been careful not to make any criticism of the commanders on the ground.  But the attribution of responsibility could not depend on how the claimant framed his case.  Lord Hope recognised the problem but considered that all such circumstances had to be evaluated with a view to striking a balance between competing considerations.  Lord Mance concluded the opposite – that all such circumstances were inter-related and essentially non-justiciable.

At para [131] he stated:

The claimants’ case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat could sue the state for alleged failures in the preparation or equipping of the armed forces for combat. Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the state’s common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court - maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment. (…) Pointing to defective equipment and seeking to ban its use could have a considerable disruptive effect. Not only would there be a huge potential diversion of time and effort in litigation of such issues in an area of essential national interest (whether before, during or after hostilities). There must be risks that the threat of exhaustive civil litigation following any active military operation would affect decision- making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed.

By way of example he cited a number of well-known incidents – the defeat at Isandlwana, the failure of the War Office to appreciate Lancelot de Mole’s idea for the tank in 1912 and the fall of Singapore.  The defeats against the Zulus and the Japanese involved a number of tactical, planning and equipment blunders, while it is anyone’s guess what might have happened in the trenches had de Mole’s suggestion been taken up immediately upon it being made. (Or, one might add, if Whittle's invention had been acted on in the early 1930s.)  But a courtroom is not the place to try and disentangle all of the competing factors and decide what would or could or should have happened.

The number of further examples that could be added is limited only by one’s imagination. HMS Hood was known to be vulnerable to plunging shellfire due to her inadequate deck armament. That knowledge compelled Admiral Holland to give away his superior position at the start of the Battle of Denmark Strait, and five minutes later the Hood was destroyed. Should he have refused to leave port? 

Should pilots have refused to fly the Fairy Swordfish, which was known to be hopelessly obsolete in 1939 (but which went on to succeed at Taranto and against the Bismark, but was ruthlessly cut down in the Channel Dash)?  

Were casualties incurred during the Falklands because the British boots were unfit for purpose (conceivably, ground could have been covered more quickly otherwise and the troops would have been in better condition when closing with the enemy)?  

Should all the politicians of the past two decades be sued because, despite a defence budget as large as the French, the latter manage to develop their own jet (cf the Eurofighter conglomerate fiasco), build their own nuclear powered aircraft carrier (cf the QE class endless delays and cost overruns) and field many more troops? 

Why was no-one court martialled over the Royal Marine hostage fiasco in Iran a few years ago (the commander of the boarding party, the ship from which they deployed, and the commander of the fleet in the region would have been good places to start)?

As Adam Wagner pointed out here, it calls to mind the old rhyme

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

http://en.wikipedia.org/wiki/For_Want_of_a_Nail

The answer is that issues arising from tactical decisions are for military debriefing sessions and, where appropriate, courts martial.  Procurement issues are for the political process.  Neither is suitable for the civilian courtrooms.  

Over legislating, over regulating

The Liberal Democrat Peer Lord Phillips of Sudbury (not to be confused with the recently retired head of the Supreme Court, Phillips of Worth Matravers) wrote in Saturday's Telegraph:

Over-legislation and its attendant complexity are bedevilling our whole culture.


On top of the 2,247 pages of primary legislation in 2009, there were around 14,000 additional pages of secondary legislation. This is no less the law of the land, though it receives utterly ineffectual scrutiny by Parliament, because statutory instruments, as they are called, cannot be amended!

Another indication of the self-defeating maze we have fashioned for ourselves is that last year the mere index (the Consolidated Tables) for Halsbury’s Laws of England ran to 3,554 pages.

Other democracies legislate far less. The Coalition, via its Red Tape Challenge, has indicated that it is not mindless of all this, but Parliament has fallen into self-harming ways, which are monumentally difficult to escape.

These include the mandate theory of government, which “entitles” or “requires” the government of the day to pass into law its overflowing basket of election promises. Then the whipping system produces a legislative production-line (only six defeats in more than 3,000 votes between 2001 and 2012). There is also the guillotining of debates, which leaves major parts of most Bills unscrutinised by the Commons.

This is at the root of a dangerous and growing disaffection with democracy. If ever a Royal Commission was essential, one is needed to grapple with these problems.

I have written about this in my book.  Experience suggests that red tape has at least two unwanted effects. First, it makes life impossible for small businesses unable to afford regulatory advice (just as we have seen with taxpayers faced with impossibly complex criteria and prospective political parties unable to afford the compliance costs of broadcasting regulations. Secondly, large businesses who can afford the advice will find loopholes to avoid much of the intended outcomes. Not for the first time in human history the only beneficiaries will be the lawyers who make a living selling advice and litigating any resultant disputes, as another Lib Dem peer (also a practising QC) said a few years ago.

The elephant in the room which Lord Phillips ignores is that a substantial percentage of the new statutory instruments he decries are passed each year to implement European Directives. Hence Lord Phillips’ call for a Royal Commission rather misses the point: whilst the United Kingdom remains a member of the European Union there is little it can do about it.

Irrespective of what one thinks of European union as a concept (as distinct from the European Union as an institution), or the overall benefits from Britain’s membership of the EU, it seems to me that there is something of a legal culture clash involved. The clash has been described somewhat crudely in these terms: under English law, in principle everyone is free to do anything that has not been expressly forbidden; under European law systems no-one may do anything unless expressly permitted; and under despotic systems such as the Soviet Union anything citizens were not required to do was prohibited.

Needless to say that is something of a caricature, but it is true that the model of the civil law systems found in Continental Europe is fundamentally different from the common law. Under the former codification is the goal, with much more detailed laws laid down by central government, and no precedent system applied by the courts. Under the common law, the law is supposed to develop according to general principles, with Parliament supreme but much law being made by judges on a case by case basis.

Phillips was therefore right to raise the problem, but I fear that even his suggested Royal Commission might struggle with the solution.

Children’s welfare and genetic screening

 Introduction 

The science of genetics and genetic engineering has given rise to complex and problematic ethical issues from its beginning.  Infamously, pseudo-scientific gobbledegook in the form of phrenology was peddled in the nineteenth century to try and explain criminal behaviour. Even more infamously, pseudo-scientists attempted in the early twentieth century to use genetics to advance theories about racial differences.

In both cases the theories offered were subsequently discredited fairly easily on scientific grounds, without even needing to question the ethics or motivations of their proponents. Far from removing the ethical questions with genetic technology, however, just as many serious moral and ethical philosophical questions continue to arise with legitimate scientific advancement.

One example is that of genetic screening of embryos and people to detect potential diseases or other conditions.  On one episode of the BBC’s Moral Maze the question arose as to whether parents could or should screen embryos before IVF treatment and what might follow from that.  A representative of the deaf community opined that if both parents were deaf, they might wish to choose the embryo that would produce a deaf child, since they would be able to relate to the child better. This runs counter to what I imagine would be most people’s instinctive reaction – that an embryo should be chosen that would be the most ‘able-bodied’ to use a contentious description.  And yet the argument from the deaf parents’ perspective was a cogent one: life for a deaf person may be equally fulfilling and certainly is equally worthy of respect as for someone who can hear, and therefore the parents should not be denied their choice. 

On the other hand, suppose the parental choice is based on cultural norms that offend that of the majority: some London hospitals ceased telling parents the sex of unborn children because it was noticed that within some communities a disproportionate number of children born were male, and on further investigation it was found that abortions of female foetuses were commonplace. Here is a classic dilemma for a multicultural society: given that abortion is legal, did the state have the right to prevent parents from following a cultural preference for male children? (In my view: yes).

The case

Another question arose recently in the case of X County Council v a mother and others [2013] EWHC 953 (Fam), [2013] All ER (D) 231 (Apr). The case concerned two young boys (aged one and three) taken into the care of a local authority, with the intention that they would be adopted.  The father, as well as admitting violence in the home, said that both his mother and brother suffered from Huntingdon’s disease (HD).  There was a chance therefore that the children had inherited the gene, and the question arose as to whether they should be screened to confirm the question either way.

Huntingdon’s disease is a hereditary disorder of the central nervous system caused by a defective gene on chromosome IV.  The faulty gene causes damage of the nerve cells and areas of the brain.  Anyone whose parent has the disease is born with a 50% chance of inheriting the gene.  Anyone who does inherit the gene will develop the disease at some stage.  The symptoms usually arise between the ages of 30 and 50, though they may do so earlier.  The extent of the symptoms varies from person to person.  In the later states of the disease the physical and mental disabilities may become profound and, if so, the sufferer will require extensive care and support.

  

The local authority took the view that the children should be screened to see whether they had the gene or not, and applied to the court accordingly.  There was no dispute that the power of the court to order a medical or psychiatric examination or other assessment under ss 38(6) to (8) of the Children Act 1989 included screening for HD. It would of course only make such an order if it thought it was in the interest of the boys’ welfare. 

The judgment 

Baker J considered evidence from the social worker concerning the prospects of adoption; the evidence that there was that other members of the boys’ family suffered from HD; and the expert evidence obtained by the parties about HD. 

He recorded the principal arguments in favour of testing as follows. First, and most importantly, a decision not to direct genetic testing would reduce the number of prospective adopters for the boys - though it would not be impossible. The guardian considered that it was possible to find adoptive placements for both boys and that accorded with this court's experience. Many children with profound disabilities were successfully adopted. Nevertheless, it would be significantly more difficult to find adoptive placements and that was a factor that pointed in favour of authorising the genetic testing. Furthermore, his lordship felt that there was considerable force in the argument that matching children with adopters who were fully informed about the children afforded the best opportunity for a successful placement.

There were other factors in favour of authorising testing. As a general rule, all children had a right to be brought up with knowledge of their background and inheritance. Unless and until testing was done, there would always be uncertainty which would affect the children's carers and in due course the children themselves.

On the other hand, there were a number of cogent arguments against carrying out testing.

First, it was the general practice not to provide genetic testing to children to determine whether they had a condition whose onset occurred in mid-adult life where there was no treatment which could be provided in childhood. It was generally recognised that it was contrary to the interests of the patient for testing to be carried out under the age of 18.

Secondly, it was undesirable to treat children differently simply because they were being considered for adoption. Save in exceptional circumstances, all other children would be given the opportunity to decide for themselves when they were older whether or not they should have the test. To order testing of the children in the instant case at the present stage would deny them the right to make their own decision when they were older.

Thirdly, though difficult, finding an adoptive placement if there was an unresolved possibility that the boys might carry the HD gene, would not be impossible.

Finally, when children had been removed permanently from their birth family, it was important, if possible, that they be placed permanently together. There was a significantly greater risk that one boy will be found to carry the gene and the other not. In those circumstances, there was, on the basis of the local authority's plans, a significant prospect that the children would ultimately be separated. That should be avoided if possible.

Baker J therefore concluded that it was not in the welfare interests of the boys for the court to order testing.

Comment 

I have to say I think the decision was correct. There was a real risk that the siblings might be separated if one was found to carry the HD gene and the other not. 

Moreover, as Baker J said, screening would not normally be allowed for children living with their birth parents.  For reasons of individual autonomy, it would be held that the children should be entitled to decide from themselves once they became adult (or at least Gillick-competent) whether they wished to be screened.  That right should not be denied children just because they happen to be on the list for adoption.  This, to my mind, is the strongest argument, though Rosalind English on the UK Human Rights Blog disagrees. She argues:

Should more weight not have been attached to the local authority’s case that, from a welfare perspective, whatever the psychological consequences of testing, they were outweighed by the likelihood that an unknown diagnosis will significantly decrease the chances of a successful adoption? (…)

Of course there are adopters who cope with children with profound disabilities and reduced life expectancy. But these heroic people are much more likely to be found than to tip up by chance. It is not sufficient – as the expert argued in this case – simply to educate prospective adopters about the disorder and in particular how today’s research is leading to the possibility of treatment in the future, without giving them the opportunity to know whether this information is going to apply to their immediate family situation; why else would they be interested? Had this case not involved two children, with the potential for being separated as a result of the discovery that one carried the gene and the other not, it is highly likely that the court would have allowed the predictive testing to go ahead.

Nevertheless, I still think it would have been wrong in the present case to undertake the screening. Imagine if, in future, a complete disease/condition screen could be done of all children.  Would that not render children waiting for adoption to be formed effectively into a queue, with the least fortune genetic inheritors inevitably forced to the back?  It seems to undermine the whole ethos of being a parent if one’s attitude towards one’s children (adopted or natural) is conditional upon that child’s genetic good fortune, though an interesting question would arise if the authority knew that the children carried the HD gene (or anything similar) and sought to withhold it from prospective adopters. 

But let no-one assume that this is the last word on the case - still less the last time extremely difficult ethical questions will arise more generally as a result of advancing genetic science.