CONSTITUTION

Acts of Parliament - hunting - parliamentary sovereignty - subordinate legislation - constitutional change

Jackson & Ors v Attorney-General (2005): HL (Lords Bingham of Cornhill, Nicholls of Birkenhead, Steyn, Hope of Craighead, Rodger of Earlsferry, Walker of Gestingthorpe, Carswell, Brown of Eaton-under-Heywood, Baroness Hale of Richmond): 13 October 2005



The appellants (J) appealed against the decision ([2005] EWCA Civ 126, [2005] QB 579) that the Hunting Act 2004 had been validly enacted pursuant to the provisions of the Parliament Act 1911 and the Parliament Act 1949. Section 2(1) of the 1911 Act had restricted the ability of the House of Lords to prevent the enactment of legislation by providing that after a period of two years had elapsed in the circumstances described in that section, a Bill could become an Act of Parliament without the consent of the Lords.


The 1949 Act, enacted in reliance on section 2(1) of the 1911 Act, had amended the 1911 Act by reducing the two-year period to one year.


J had an interest in fox-hunting and challenged the validity of the 2004 Act that banned the hunting of foxes with dogs. J sought declarations that the 1949 Act was not an Act of Parliament and was consequently of no legal effect, and that accordingly the 2004 Act was not an Act of Parliament and was of no legal effect. J submitted that legislation made under the 1911 Act was delegated or subordinate, not primary; the legislative power conferred by section 2(1) of the 1911 Act was not unlimited in scope; the amendments made by the 1949 Act were not authorised and that Act was invalid.


Sydney Kentridge QC, Richard Lissack QC, Martin Chamberlain, Marcus Haywood (instructed by Allen & Overy) for the appellants; Lord Goldsmith QC (Attorney-General), Philip Sales, Clive Lewis (instructed by the Treasury Solicitor) for the respondent; David Pannick QC, Gordon Nardell (instructed by Collyer-Bristow) for the interveners.


Held, the 1911 Act provided that legislation made in accordance with section 2 would be an Act of Parliament. The Act effected an important constitutional change; however, the change did not lie in authorising a new form of sub-primary parliamentary legislation but in creating a new way of enacting primary legislation.


The 1911 Act could not be understood as a delegation of legislative power or authority by the Lords, or by Parliament, to the House of Commons. The overall object of the Act was not to enlarge the powers of the Commons but to restrict those of the Lords.


Section 2(1) made provision, subject to three exceptions, for 'any' public Bill that satisfied the specified conditions to become an Act of Parliament without the consent of the Lords. It was clear from the historical background that Parliament did intend the word 'any', subject to the noted exceptions, to mean exactly what it said. The Act gave the Commons power to pass any Bill whatever, and the submission that an Act made under the 1911 Act could only make certain kinds of amendments to it was not supported by the language of the Act, principle or the historical record. There was nothing in the 1911 Act to preclude use of the procedure laid down by the Act to amend the Act.


The 1949 Act and the 2004 Act were Acts of Parliament of full legal effect. Appeal dismissed.





CHILDREN


Children - medical treatment - terminal illness - declarations in respect of withholding medical treatment - quality of life - artificial ventilation

(1) Darren Wyatt (2) Deborah Wyatt v (1) Portsmouth Hospital NHS (2) Charlotte Wyatt (by her guardian CAFCASS) (2005): CA (Civ Div) (Lords Justice Laws, Wall, Lloyd): 12 October 2005


The appellant parents (P) sought permission to appeal against declarations made ([2004] EWHC 2247 (Fam)) in respect of the medical treatment of their daughter (C) and appealed against the decision ([2005] EWHC 693 (Fam)) to continue and not to discharge those declarations.


C had been born prematurely and had never left hospital. Her neurological condition was 'as bad as it could be'. Among other disabilities, C suffered from chronic lung disease. The doctors treating her believed that it was not in C's best interests to be ventilated if she contracted an infection or suffered some other crisis that was likely to lead to her death, but which could not be treated by drugs and thus required her to be ventilated if she was to stand any chance of surviving.


P disagreed and the respondent NHS trust had obtained the declarations in issue that authorised the doctors in essence not to ventilate C in the event that she suffered an infection that had led or might lead to a collapsed lung and which proved resistant to antibiotics. After a further hearing, the judge refused to discharge the declarations, finding that there had been no change in C's underlying condition and that she remained terminally ill, but directed that the case should be reviewed after six months to consider whether the declarations should be further continued.


P submitted that the correct test of C's best interests was not that applied by the judge but that of intolerability. Applying that test, C's life could not be said to be intolerable and, accordingly, aggressive treatment that would be likely to save her life and could restore her to her current state was in her best interests; the judge had been wrong to determine C's best interests and make declarations in advance of any crisis.


David Wolfe (instructed by Leigh Day & Co) for the appellants; David Lock (instructed by Mills & Reeve) for the first respondent; Huw Lloyd (instructed by CAFCASS Legal) for the second respondent.


Held, the best interests of a child in the context of the withholding of medical treatment were not to be determined by the test of whether the child's life if given the treatment would be intolerable (Re B (a minor) (wardship: medical treatment) [1981] 1 WLR 1421 and Re J (a minor) (wardship: medical treatment) [1990] 2 WLR 140) considered.


Best interests were interpreted more broadly than medical interests and included emotional and other factors. There was a strong presumption in favour of preserving life, but not where treatment would be futile, and there was no obligation on the medical profession to give treatment that would be futile.


The court had to focus on best interests rather than the concept of intolerability, although the latter might be encompassed within the former (Re L (medical treatment: benefit) [2004] EWHC 2713 (Fam)) applied. Best interests encompassed medical, emotional and all other welfare issues (Re A (male sterilisation) [2000] 1 FLR 549 applied, W Healthcare NHS Trust v KH [2004] EWCA Civ 1324 distinguished and R (on the application of Burke) v General Medical Council [2004] EWHC 1879 (Admin), [2005] QB 424 doubted.


The judge had approached the best interests question correctly; there was no error of law and permission to appeal against his decision in principle to make the declarations was refused.


There was a tension between the concept of a declaration, which was designed to state what was lawful in given circumstances, and a situation that was sufficiently fluid to render it likely that the circumstances might change, with the consequence that the lawfulness of the conduct identified in the declaration might be called in question.


However, on the facts of the instant case and in view of the medical consensus that C's underlying condition had not changed, the judge had been entitled to continue the declarations and right to order a review.


The declarations were permissive, not mandatory, and the trust's decision not to re-ventilate C was being kept under clinical review and would be discussed with P before it was implemented. Appeal dismissed.





HUMAN RIGHTS


Damages - fishing rights - peaceful enjoyment of possessions - territorial application - South Georgia - South Sandwich Islands - Patagonian toothfish - fishing licences - British overseas territory

R (on the application of Quark Fishing Ltd) (respondents) v Secretary of State for Foreign & Commonwealth Affairs (appellant): R (on the application of Quark Fishing Ltd) (appellants) v Secretary of State for Foreign & Commonwealth Affairs (respondent) (2005): HL (Lords Bingham of Cornhill, Nicholls of Birkenhead, Hoffmann, Hope of Craighead, Baroness Hale of Richmond): 13 October 2005


The appellant secretary of state appealed against the decision ([2004] EWCA Civ 527) that an instruction to withhold an international fishing licence had been given by the secretary of state on behalf of the Queen in right of the UK, and the respondent company (Q) cross-appealed against the striking out of its claim for damages under section 7 of the Human Rights Act 1998.


Q had had a licence, granted by the director of fisheries of South Georgia and the South Sandwich Islands (SGSSI), to fish for Patagonian toothfish in the maritime zone adjacent to SGSSI, which was a British Overseas Territory, the constitution of which was governed by the South Georgia and South Sandwich Islands Order 1985.


The government consisted of a commissioner who was subject to the instructions and control of the secretary of state. The secretary of state had instructed the commissioner to refuse Q a fishing licence for the 2001 fishing season.


Q had successfully challenged the lawfulness of the secretary of state's instruction on public law grounds but Q's consequential claim for damages was struck out on the ground that, although the instruction had been issued by the secretary of state acting for the Queen in right of the UK, damages could not be obtained under the 1998 Act because the relevant provisions of protocol 1, article 1 of the European Convention on Human Rights had not been extended to SGSSI.


The issues on appeal were whether the secretary of state, when giving his unlawful instruction, was acting for the Queen in right of the UK or in right of SGSSI, and whether the instruction was capable of giving rise to a claim for damages under section 7 of the 1998 Act.


Jonathan Crow, Daniel Beard (instructed by the Treasury Solicitor) for Quark Fishing Ltd: David Vaughan QC, Fergus Randolph (instructed by Thomas Cooper & Stibbard) for the Secretary of State for Foreign & Commonwealth Affairs.


Held, in giving the instruction under the 1985 order, the secretary of state was acting on behalf of the Queen, exercising her powers as sovereign of SGSSI, not the UK.


The purpose of sections 6 and 7 of the 1998 Act was to provide a remedy in domestic law for the rights guaranteed by the convention (Parochial Church Council of the Parishes of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank [2003] UKHL 37, [2004] 1 AC 546) applied.


Protocol 1 had not been extended to SGSSI by a declaration under article 4 of the protocol. Thus a party complaining of conduct that would be a violation by SGSSI, for which the UK would be answerable if the protocol had been extended, would inevitably fail in an application to the European Court of Human Rights at Strasbourg if, as was the case, the protocol had not been extended (Bui van Thanh v UK (Application No.16137/90) and Yonghong v Portugal, Reports of Judgments and Decisions 1999 - IX, p385 applied).


The Act did not provide a domestic remedy where a remedy would not have been available in Strasbourg. It followed that Q could not claim in domestic law that it was the victim of an act of a public authority made unlawful by section 6(1) of the 1998 Act. Therefore, the instruction was incapable of giving rise to a claim for damages under section 7 of the 1998 Act. Appeal allowed, cross-appeal dismissed.





MENTAL HEALTH


Codes of practice - inhuman or degrading treatment or punishment - mental patients - right to liberty and security - right to respect for private and family life - seclusion - lawfulness of hospital policy - compatibility with European Convention on Human Rights

R (on the application of Munjaz) (respondent) v Ashworth Hospital Authority (now Mersey Care NHS Trust) (appellant) & (1) Mental Health Act Commission (2) Mind (3) the Secretary of State for Health (interveners) (2005): HL (Lords Bingham of Cornhill, Steyn, Hope of Craighead, Scott of Foscote, Brown of Eaton-under-Heywood): 13 October 2005


The appellant NHS trust appealed against the decision ([2003] EWCA Civ 1036) that its policy governing the seclusion of psychiatric patients detained at its high-security mental hospital departed from the code of practice issued by the secretary of state pursuant to section 118(1) of the Mental Health Act 1983 and was unlawful.


The respondent (M) was a patient, detained under the 1983 Act, at the trust's hospital. He had been placed in seclusion for periods in excess of four days.


The aim of the code was to contain severely disturbed behaviour that was likely to cause harm to others. The code provided, among other things, that hospitals should have clear guidelines on the use of seclusion, including the frequency of reviews of the need to continue the procedure.


The central issues were whether the trust's policy was unlawful under domestic law, and whether the policy had failed to comply with articles 3, 5 and 8 of the European Convention on Human Rights. M contended that the policy was unlawful under domestic law as it provided for less frequent medical review of seclusion, particularly after day seven, than was laid down in the code.


For the appellants: John Howell QC, Phillippa Kaufmann (instructed by Capsticks); Nigel Pleming QC, Fenella Morris (instructed by Hogans) for the respondents; Jonathan Swift (instructed by the Treasury Solicitor) for the first intervener; Richard Gordon QC, Paul Bowden (instructed by the in-house solicitor) for the second intervener; Clive Lewis, Ben Hooper (instructed by the Solicitor for the Department of Health) for the third intervener.


Held (Lords Steyn and Brown dissenting), the code provided guidance and not instruction.


However, it was guidance that any hospital had to consider with great care, and from which it should depart only if it had cogent reasons for doing so. On the evidence, the code had been carefully considered by the trust and large parts had been reproduced in the policy. Although the policy had departed from the code in providing for less frequent medical review after day seven, the trust had explained the justification for the policy in very considerable detail.


The trust had been entitled to take account of three matters - the code had been directed to the generality of mental hospitals and had not addressed the special problems of high-security hospitals; the code had not recognised the special position of patients whom it was necessary to seclude for longer than a very few days; the statutory scheme, while providing for the secretary of state to give guidance, had deliberately left the power and responsibility of the final decision to those who had the legal and practical responsibility for detaining, treating, nursing and caring for the patients. Accordingly, the trust had shown good reasons for adopting the policy it had adopted.


The policy, properly operated, would be sufficient to prevent any possible breach of the article 3 rights of a patient secluded for more than seven days, and there was no evidence that the frequency of medical review provided in the policy risked any breach of those rights. As regards article 5 of the convention, the policy, properly applied, did not permit a patient to be deprived of any residual liberty to which he was properly entitled. It was difficult to see why the policy would be incompatible with article 8 as its purpose was to define standards to be followed and to prevent abuse and arbitrariness. In any event, the policy was justified under article 8(2) &150; it was necessary for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


The policy satisfied the requirements of precision and accessibility and was in accordance with the law. In the circumstances, the Court of Appeal had given the code a stronger effect than was permissible.


Appeal allowed.