Prince Charles' letters: R (on the application of Evans) and another v Attorney General

The Supreme Court has now given judgment in R (on the application of Evans) and another v Attorney General, the case brought by the Guardian seeking access to Prince Charles' letters under the Freedom of Information Act.  The Court ruled in favour of the Guardian and therefore at some point in the future disclosure will now have to be made.

I wrote about the case at an earlier stage in the process here. It was not an uncontroversial opinion, as the comments section indicates, though I stand by the view that the Prince should not have been writing letters lobbying for change.  This is not because I disagree with all of his views - though I certainly disagree with his support of homeopathy and his more general unscientific pronouncements (brutally dissected by the late Christopher Hitchens here).  The problem is the more general principle that the monarchy is supposed to reign, not rule.  The late Tony Benn used to have four questions for any man or woman with power he met. They were along these lines:

1.  What power do you have?

2.  How did you obtain it?

3.  In whose interests do you exercise it?

4.  How can I get rid of you?

In the case of the Monarchy, the answer to question (1) has traditionally been 'not very much', and hence the rest were of not so great importance.  By seeking to influence government policy, Charles would change that answer and hence cause significant embarrassment to his position.  The Attorney-General almost admitted as much in his decision and his pronouncements on the letters earlier in the case.

It is true that the Queen grants the Prime Minister a weekly audience, at which she presumably shares her views on a wide range of matters.  But no Prime Minister (and the Queen has been on the throne since Winston Churchill occupied No. 10 Downing St) has ever said she lobbies for any particular course of action, only that she offers advice here and there. For ardent republicans - and there is no doubt that the Evans case was a flanking attack on the entire monarchy by the Guardian - the mere fact of her meeting politicians in a different capacity from an ordinary citizen is objectionable of itself. But they would still concede that Charles' letter-writing is of a different order of magnitude, and much more damaging to the monarchy accordingly.

I do not buy the argument based on privacy - the notion that Charles is entitled to private correspondence like anyone else.  He is indeed entitled to privacy - on matters appropriately private.  Thus, if he wrote to a friend, or if he wrote a private journal (which he did, and which I argued in one of my books should be confidential) then that would be no-one else's business.  But if he is seeking to influence an important matter of policy, whether in regard to the environment, human rights, architecture, alternative medicine or whatever, then that is properly something of public concern, given his constitutional position.  No-one could pretend that his letters on such subjects would be no different from those of Disgusted of Tunbridge Wells.

In my earlier blog, a commentator referred to the German president, who is supposed to be neutral in party politics, but who still intervenes and takes positions on contentious political matters.  There are two responses: first, the positions are not identical - the German constitution is a carefully crafted arrangement, not easily compared with the British one; and secondly, the German president is elected, and thus there is a ready answer to Tony Benn's question (4) which does not apply in the case of Charles.

There is also the question of one of Charles' letters concerning a ministerial decision which is later made subject to a judicial review challenge.  Would a letter from the Prince amount to an irrelevant factor?  Or would it otherwise breach natural justice, on the basis that no-one would have had a chance to respond to it?

I should stress that none of the above actually fell for decision in the legal proceedings.  The court did not need to consider whether Charles should be writing the letters in the first place, what consequences there might be for him, and what consequences there might be for anyone else. Instead, it was concerned primarily with the separate but equally interesting issue of whether, and in what circumstances, the Attorney-General might overturn a decision of a judicial tribunal. There is a short note on the UK Supreme Court Blog here and I will link to a longer discussion when one appears.

The umpire's lot is not a happy one

Two recent press stories show that the lot of a cricket umpire is not always a happy one off the field, any more than it can be on it. Two respected umpires of many years standing have been told they are too old to continue, while another faces the unusual charge that he is too Church of England. Both propositions will have satirists reaching for their keyboards, but in both cases there is a serious legal issue that has much wider implications than the foibles of flanned fools in whites.

The elders

According to the Times (28 August 2014), the umpires Peter Willey (an iron-willed batsman for England a few years ago) and George Sharp are about to bring a complaint against the England and Wales Cricket Board in the employment tribunal, alleging age discrimination. Both Willey and Sharp are about to reach 65 years of age, and under present ECB rules both face compulsory retirement accordingly. They may have the law on their side: since 2011, mandatory retirement at 65 is no longer automatically legally defensible. Instead, employers are required to show an "objective justification".

The role of an umpire requires an extensive knowledge of cricket, together with the ability to deal with at least mildly stressful situations. If anything, both qualities are likely to be enhanced by age. On the other hand, umpiring also requires stamina, concentration, sharp eyesight and acute hearing, and it is not being ageist to observe that all of those abilities erode with time (and that erosion comes to us all). Cricketing history has more than a few tales of once-respected umpires stubbornly carrying on well beyond the point where their senses had dulled too far, yet apparently remaining unsackable because of their earlier reputation or because of ineffective officialdom.

Then again, all individuals age at different rates, and different jobs require different skills, some of which will decline quicker than others. Both those considerations suggest a fixed figure is inappropriate for determining retiring ages across all spheres of employment.

The only problem with a more flexible approach is that it leaves room for argument (and ultimately litigation) in individual cases, with the resultant expense and uncertainty. Yet even if one decides, for reasons of certainty, that a fixed age for retirement (and collection of superannuation) is appropriate, the long-standing figure of 65 might need to be revised in light of substantially improved living standards. The average life expectancy has increased markedly in the past few decades, and a person of 75 today might well be just as fit and capable as the average person of 65 fifty years ago. (Whether one agrees or not, the parlous state of our public finances might soon require the raising of the pensionable age out of economic necessity.) It follows that Willey and Sharp have an arguable case at least.

The churchman

The Daily Telegraph (7 September 2014) reported that

“A councillor and cricket enthusiast has been told he cannot umpire a church match because of fears he may not be ‘theologically neutral’ as his great-great grandfather was a bishop.

Michael Claughton, who has 18 years’ experience as a cricket umpire, offered to officiate the match between the Church of England XI and Vatican XI, due to take place later this month.

But he said he was left baffled after officials said he could not be considered for the charity because they wanted to ensure it was theologically “neutral” and they feared his ancestry could make him biased against the Catholic team.”

Assuming the report to be accurate, the officials’ reasoning seems slightly odd – if one could trace Claughton’s ancestry further back than Henry VIII, it would be a racing certainty that he would have Catholic forebearers too. Moreover, both XI’s seem to share the same head office theologically, even if the branch management differs.

More seriously, natural justice requires that a judge recuse him or herself if there is any suggestion that he or she shares any form of relationship or common interest with the litigants. There have been some interesting disputes over the years as to whether a common religion between judge and litigant amounts to such a relationship, the answer probably being that it will do so only where the dispute actually involves the religion in some material respect, with the usual qualification about each case turning on its facts.

Secondly, what about social events such as Claughton’s cricket match?  Should the law bother getting involved?  One might instinctively suggest no, but there have been occasions in which human rights fingers have been pointed accusingly towards a social event: a long-standing married couples’ golf tournament was an early victim of human rights legislation in New Zealand, for example. Then there were the private clubs which clung to their men-only membership policies until very late in the twentieth century (the Marylebone Cricket Club prominent among them).

Such questions would be more pertinent in Claughton’s case if umpiring was his professional career and the game a remunerative fixture. As it stands, I assume that he will not be much obstructed by the slight. But the moral principle remains.

One of the match’s organisers said “There's absolutely no question of Michael Claughton's skill as an umpire or his honesty. We just thought it would be a nice way of showing everybody this is neutral.” Well, I imagine it wasn’t very nice for Claughton. 

Arlott's Freakers, All Black Streakers and human rights

In the second test between the All Blacks and England over the weekend (in a sport which probably isn't receiving much attention at the moment), a streaker ran on the pitch and was apprehended by a security guard, who seemed to be auditioning for the All Black back row, such was the force of the tackle he unleashed.  The New Zealand Herald has a report here.

I have mentioned streakers in my forthcoming book on cricket and the law.  The "practice" as it were of streaking seems to have started in the mid-1970s, to the point where the American comedian Ray Stevens wrote a popular song on the theme.  One still finds the odd incident today despite the novelty having worn off faster than the average streakers' clothes.

From a legal perspective, a streaker would be committing two offences: (i) a public decency offence, usually found under the public order statutes; and (ii) trespass, since they would have no right to be on the field of play.

As to the first of those, I wonder if any might try some of the same arguments as Stephen Gough, the soi-dissant naked rambler, who has been arrested a number of times in Britain over the past few years, and usually deploys human rights arguments.  In particular, he argues that it is his right to free expression to display himself in the relevant fashion.  Although he has succeeded in establishing that by being naked in public he is manifesting his right of free expression, it has always been held that the public interest outweighs that manifestation of his right, and he has therefore been convicted and had any appeal dismissed.

As to the latter, trespassers can usually be removed with reasonable force, though the question seems to have arisen with the individual on Saturday as to what was "reasonable".  A few years ago the following ensued in a cricket match in Australia; it was held, correctly in my view, that the actions of the Australian batsman, Andrew Symonds, was in fact reasonable and he committed no offence:

From about 43 second in one can see why the streaker might have started to regret his actions.

Cases that Changed Our Lives, Volume 2

I am a contributing editor to this forthcoming book from LexisNexis.  I have written the chapter introductions, and an essay on the case of Eweida and others v the United Kingdom (App. Nos. 48420/10, 59842/10, 51671/10 and 36516/10). I will post more information on the book over the next few weeks.

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.

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.

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. 

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.  

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.