Thoburn v Sunderland City Council [2002]

English Constitutional Law

Thoburn v Sunderland City Council [2002]
‘The Greengrocer’s Shop’ by Terrick Williams

In a collective hearing the facts surrounding a national transition between imperial and metric measurements for the purposes of trade, gave rise to claims of unlawful application and subsequent challenge within the High Court as below:

Thoburn v Sunderland City Council

In this matter a greengrocer was accused of trading without licensed weighing scales under s.11(2) of the Weights and Measures Act 1985, while it was also alleged that despite repeated warnings to calibrate his scales in line with the legal requirements, the defendant had continued to operate the machines until their seizure by the local authority, and so losing his case in the Divisional Court the defendant later applied for referral to the High Court in order to further discuss the legalities of both imperial and metric measurements.

Hunt v Hackney London Borough Council 

On this occasion another fruit and vegetable trader was accused of a number of offences under s.4 of the Prices Act 1974 and s.28(1) of the Weights and Measures Act 1985 after commercial standards officers made discreet purchases revealing average product weight losses of twenty percent in favour of the defendant. 

Charged in the first instance, the defendant challenged the validity of the legislation and also sought the opinion of the High Court on grounds that he contended the applicability of the 1974 Act and the unlawfulness of displaying goods under the imperial weights system.

Harman and another v Cornwall County Council

This matter involved a market trader and fishmonger, who were both accused of selling their produce using imperial units of cost and thereby violating art.5 of the Price Marking Order 1999, as found under the Prices Act 1974 and sch.1 of the Weights and Measures Act 1985 as amended by The Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 (SI 1994/1851). 

Here it was alleged that the two defendants had also prevented their attending local authority representative from removing the imperial price stickers when attempting to obtain evidence of their acts, and so having admitted liability the judge was referred to the outcome of Thoburn and raised the question as to the intention that both imperial and metric systems were to continue to run in parallel to one another, and whether the trading standards officers were acting beyond their powers when attempting to obtain pricing stickers from traders despite no suggestion of dishonesty by those accused.

Collins v Sutton London Borough Council

In a slightly different circumstance the appellant had argued that the terms of the renewal of his trading licence had been unlawfully amended by the issuing council, and so applied for a summons under s.30(1)(a) of the London Local Authorities Act 1990 while claiming that under the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994 and  The Weights and Measures (Metrication Amendments) Regulations 2001 (SI 2001/85) the local authority had instructed the appellant that he must display and charge for his produce under the metric weights system and that such a request constituted a breach of statutory powers and a violation of art.10 of the Human Rights Act 1998 (Freedom of expression). 

To clarify, s.1(1) of the Weights and Measures Act 1963 provided that both the metric and imperial system of measurements were permitted equal presence within the United Kingdom until the creation of the European Communities Act 1972  and the introduction of Directive 80/181/EEC in 1979, after which chapter 1 of Directive 89/617/EEC cited that the metre and the kilogram were to become the single legal measurements of both length and mass, however chapter IV provided that certain goods sold loose in bulk were  allowed to be measured in pounds and ounces until 31 December 1999. 

In the following two years The Units of Measurements Regulations 2001 (SI 2001/55) provided that imperial measures (while unlawful as primary indicators for sale) were still permitted as secondary indicators until 1 January 2010, while contrastingly the Price Marking Order 1999 required traders to indicate unit prices in metric measures, yet anything to the contrary was a criminal offence under para.5 of sch.2 of the Prices Act 1974.

When brought before the High Court the four appellants relied upon a contention that the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994, Weights and Measures (Metrication Amendments) Regulations 1994 and the Price Marking Order 1999 were all unlawful and thus void under the principle of ‘implied repeal’, which is a process applied when Parliament enacts successive statutes containing inconsistent terms, and where the former is repealed by the latter in order to avoid future binding and confusion of effect, while it was also argued that the 1985 Act had repealed s.2(2) of the European Communities Act 1972 in order to prevent future subordinate legislation, as had been used to replace the imperial system with the metric measurement system. 

Having considered the appellants’ somewhat unorthodox line of argument the Court dismissed the appeals on grounds that while observation of European Community law remained first and foremost to the function of the sovereign, there was nothing in the European Communities Act 1972 that allowed any outside jurisdiction to compromise the supremacy of Parliament, and that the executive measures of the 1972 Act were not subject to repeal by implication but through express and specific decisions, before reminding the parties that:

“Parliament cannot bind its successors, and that is a requirement of legislative sovereignty.”

Alder Hey Children’s Foundation Trust v Evans (2018)

English Family Law

Evans
‘Study of a Hero’s Life’ by Vincent Desiderio

In a heart-rending case concerning the right to life and right to choice of venue with regard to palliative care, the parents of an almost two-year old boy become torn between the stark truth of their son’s condition, and the parental struggle to override the needs of the State, where the only voice missing is that of the child.

Born in spring of 2016, the respondents’ son Alfie James Evans was admitted to the Alder Hey Hospital in December of that year, after their son displayed a number of concerning behaviours that in turn led to various forms of treatment, albeit none of which showed any long-term success, until he was later diagnosed with a mitochondrial disorder, producing a degenerative condition that itself was causing the functional erosion of his brain to the point of almost exhaustion, while also proving elusive as to the exact cause and identifiable epistemology.

As time progressed, their son eventually lapsed into a coma, and thus the decision was broached as to what possible steps were available to both the respondents and the hospital, regards how best to care for their son during the time remaining between the diagnosis, gradual and distressing deterioration, and his eventual passing.

The hospital had initially suggested that a long-term palliative plan might offer a prolonged lifespan, although the ultimate prognosis was that Alfie was now in a semi-vegetative state, and would remain so indefinitely, however the respondents were reluctant to accept the suggested prognosis, and so in December 2017 the applicant NHS Trust sought a judicial declaration in the High Court, to support their conclusion that there was little merit in continuing to keep Alfie under ventilatory support, whereupon the respondents moved to adjourn the hearing.

Having undertaken extensive research around the diagnosis, the respondents argued that previous symptoms were traceable to hydrocephalus, however the brain tissue had continued to degenerate, and whatever now remained was merely water and cerebral spinal fluid, as anticipated by the medical team and relevant expert testimonies. In addition to this, the respondents had advised that Alfie be transferred to the Bambino Gesu hospital in Rome, Italy, where should no treatment prove conclusive, he would again be admitted to a third hospital in Much, Germany, albeit at significant risk to his already fragile health.

While the court extended tremendous sympathy to the plight faced by the respondents, it relied in this instance upon the expert opinion of a Professor Nikolaus Haas of the University Hospital, Ludwig-Maximilians university, Munich, who had previously remarked that:

“Based on the extensive testing already performed, I do agree with the medical teams involved that there are no useful tests that may be performed to improve Alfie’s condition. The genetic testing (i.e. whole genome sequencing) is performed by blood sampling and without any risks for Alfie. These tests may in certain cases be beneficial to delineate a new rare disease as pointed out by the doctors of the Bambino Gesu Hospital. To the best of my knowledge these tests have, even if a new disease is found, never been able to cure a patient with a similar disease pattern as Alfie shows.”

While in Aintree University Hospital NHS Trust v James, Baroness Hale had explained that:

“[T]he focus is on whether it is in the patient’s best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.”

And so with full cognisance that Alfie had now lost all sense of vision, hearing, smell and touch response, the court was appointed the painful task of holding that the continued use of ventilation was now an exercise in futility, and that in the best interests of the child, the applicants were free to determine an end date for the treatment.

Relentlessly pursued in the Court of Appeal, Supreme Court and European Court of Human Rights, the previous judgment was consistently upheld, before being heard again in the High Court in order for a decision to be made as to exactly when the palliative care was to cease; however under new representation, the respondents sought a writ of habeas corpus on grounds that Alfie was now being unlawfully detained in Alder Hay hospital against the wishes of the respondents, a contention that was given little credence, and upon which the court relied upon the words of Lady Hale in the Supreme Court hearing, who stressed that:

“A child, unlike most adults, lacks the capacity to make decisions about future arrangements for themselves. Where there is a dispute, it is for the court to make a decision, as it would in respect of an adult without capacity. This is the gold standard by which most of these decisions are reached. It is an assessment of best interests that has been concluded to be perfectly clear.”

Which again concluded that the care plan now in effect was in every respect, in the best interests of their son, and that it was the express desire of the court that the respondents at least help support the medical team assigned his care.

Appealing against the decision under Rule 52.3(1)(a)(iii) of the Civil Procedure Rules, the respondents argued before the Court of Appeal that the High Court had merely continued in its support of the cessation of medical ventilation, instead of clarifying as to the lawfulness of Alfie’s alleged detention at Alder Hay hospital, upon which the Court turned to Gard v United Kingdom, wherin McFarlane J had held that:

“It goes without saying that in many cases, all other things being equal, the views of the parents will be respected and are likely to be determinative. Very many cases involving children with these tragic conditions never come to court because a way forward is agreed as a result of mutual respect between the family members and the hospital, but it is well recognised that parents in the appalling position that these and other parents can find themselves may lose their objectivity and be willing to “try anything”, even if, when viewed objectively, their preferred option is not in a child’s best interests. As the authorities to which I have already made reference underline again and again, the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view.”

Thus the Court held again that:

“The application of a different legal label, namely habeas corpus, does not change the fact that the court has already determined the issues which the parents now seek, again, to advance. Their views, their rights do not take precedence and do not give them an “unfettered right” to make choices and exercise rights on behalf of Alfie.”

Before dismissing the appeal on grounds similar to those taken by the High Court; after which an application for the return of Alfie to Italy was presented to the High Court, based upon the granting of Italian citizenship by the Italian Ministry of Foreign Affairs to the Secretary of State for Foreign and Commonwealth Affairs, an act that was immediately refuted both on grounds of lineage and self-evident jurisdiction of the court, the latter of which was shown in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) in which Lord Wilson had explained how:

“A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).”

And that:

“Article 8 of Council Regulation (EC) No 2201/2003 (“Regulation B2R”) provides that the courts of an EU State shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised.”

However the Court also noted that since the last hearing, Alfie had been successfully extubated from the ventilation unit, and was now breathing of his own accord, a change that moved the court to conclude that:

“[T]here arises an opportunity to explore creatively, ambitiously and even though it may be a forlorn hope, cooperatively, the options that may now emerge in a palliative care plan which could encompass, at least theoretically, Alfie being cared for, in his final hours or days, at home or in a hospice, or even on the ward and not in the PICU.”

Upon which the application was dismissed, and the matter now left for the respondents and Alder Hay Hospital to hopefully negotiate as best as possible with the time remaining.

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health (2006)

English Medical Law

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health
‘Arthritic Hands’ by Tim Benson

Finally decided within the European Court Of Justice (COJ), this protracted and game-changing case determines well the principle of unreasonableness, whether individually or in this instance, as exercised through the actions (or inactions) of the National Health System (NHS) of Great Britain.

When diagnosed as having severe osteoarthritis in both hips, an elderly lady was duly assigned a slot in a typically lengthy waiting list, on the provision that her operation would at least begin inside a twelve-month period, and that no other adjustments could be made under the existing policy framework.

Clearly distressed and left in constant pain, the patient took it upon herself to request a permission form that could enable her to seek medical treatment in another EU Member State at cost to herself, before claiming back those costs under the umbrella of art.49 of the EC.

When authorisation for her application was refused on the grounds that the inherently free infrastructure of the NHS prevented such claims as a matter of course, the applicant went ahead and secured an operation in France regardless of the setback.

During the period between the successful operation and her application for authorisation, the patient’s condition worsened to the degree that her consultant elevated her need for surgery, an action that reduced the waiting time from twelve months to three to four months. Unfortunately, this still rendered her unable the receive the care (and ultimately adequate pain relief) she needed, and so her paid surgery went ahead two months before any provisional opening was made available to her in the UK.

When pursuing the right to seek judicial review in order to recoup her costs under her individual EU rights, the High Court dismissed her claim under constitutional grounds, while her subsequent appeal against such immediate objection escalated matters to the Appeal Court, who themselves referred it to the COJ.

There, after much scrutiny and comparison with similar EU cases, the Court held that any refund issued in respect of treatment sought in another Member State did not contravene s.152(5) of the EC, which provides that:

“Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services and medical care.”

And furthermore, any excuse offered with regard to waiting times and the limitations of such healthcare provision failed to satisfy the individual rights offered under art.49 of the EC, while also holding that:

“[T]he special nature of certain services does not remove them from the ambit of the fundamental principle of free movement.”