Archie Battersbee: Family lawyer says breaching UN interim measures would be ‘unacceptable breach of international law’ as urgent hearing begins
1 August 2022 Issued by: Christian ConcernAn urgent online hearing in the case of Archie Battersbee has begun at the Court of Appeal following interventions from the United Nations Committee on the Rights of Persons with Disabilities (UN CRPD) and the UK government.
Yesterday afternoon, (July 31) the Government Legal Department dramatically referred the case back to the High Court for ‘urgent consideration.’
The move followed the UN CRPD issuing an interim measures injunction on Friday 29 July to the UK government stating that Archie’s life-support should not be removed.
Despite the intervention, Barts Health NHS Trust, who are responsible for Archie’s care at the Royal London Hospital, said that they would carry on with plans to remove life-support today from 2pm.
Supported by the Christian Legal Centre, the families’ lawyers had made a last-ditch application to the UN CRPD following the refusal of the UK’s Supreme Court to intervene in the case on Friday 28 July.
The UK has joined the Optional Protocol to the Convention on the rights of persons with disabilities, which enabled the UNRPD to ask the UK government to delay the withdrawal of life support while a complaint is investigated.
The family argue that stopping treatment would be in breach of the UK’s obligations under Articles 10 and 12 of the UN Convention on the Rights of People with Disabilities, and Article 6 of the UN Convention on the Rights of Children.
Representing the family, Edward Devereux QC has submitted to the Court this morning that ‘Interim measures made under the human rights treaties are binding under international law’, and that ‘any failure to abide by the terms of a request for interim measures in accordance with the terms of the Convention and, in particular, Art 4 of the Optional Protocol would be a flagrant, egregious and unacceptable breach of international law.’
Further legal argument submitted to the Court of Appeal judges, President of the Family Division, Sir Andrew McFarlane, Lady Justice King, and Lord Justice Moylan include that:
‘If the Trust, for example, objects to ‘interim measures’ the proper procedure is to set out the reasons for its objections to the Committee, not to encourage the Court of Appeal or another court to flagrantly breach international law. At any point, the Trust or the government can apply to the Committee to lift the interim measures.’
In regard to the role and influence of the UN CRPD in domestic law, Mr Devereux QC, has argued that:
‘The CRPD is not directly incorporated into domestic law, so none of the pronouncements of the Committee are formally binding upon the domestic courts. However, interim measures have force in our domestic legal system due to the UK’s invariable compliance with its international obligations. The UK Government will generally consider itself bound by an interim measure and act in accordance with it. The Courts will exercise their discretion in accordance with international legal obligations where they are free to do so.’
He added that: ‘The CRPD interim measures are binding under international law on the Trust which is an emanation of the State. The Trust is therefore obliged to give effect to the interim measures and cannot lawfully withdraw life-sustaining treatment (“LST”) from Archie.’
Furthermore, he said: ‘The Secretary of State has effectively invited the Court to intervene so as to ensure that the UK’s international law obligations are respected. The Court is free to act in accordance with interim measures in the present case and should do so.
On whether the interim measures are binding on the UK government, Mr Devereux QC has argued that: ‘The interim measures are certainly binding on the Secretary of State who is obliged to exercise what control he has to ensure that the Trust is compliant with the interim measures. This control can be exercised through the Secretary of State’s direction mak-ing powers under s.8(1)(c) of the Health Service Act 2006 to direct the Trust to comply with the interim measures. For this reason the Court should if it proves necessary to en-sure the Trust’s compliance with the interim measures make the Secretary of State a party to present proceedings.’
Referring to the Equality Act 2010, Mr Devereux QC argued that the UN CRPD is incorporated into domestic law by the Equality Act 2010, and cited a parliamentary question from 21 February 2020, which asked:
The UN CRPD is effectively incorporated into domestic law by the Equality Act 2010. A parliamentary question was tabled on 21 February 2020:
“The Secretary of State for Work and Pensions, what plans she has to bring forward legislative proposals to enshrine the Convention on the Rights of Persons with Disabilities into UK domestic law.”
The Minister answered on 27 February 2020:
“The UK is a fully committed party to the UN Convention on the Rights of Persons with Disabilities which we ratified in 2009. The UK as a general principle does not in-corporate international treaties into domestic law. However, the rights of disabled people under this Convention are largely reflected and given effect in existing domes-tic policies and legislation.
Concluding his arguments, Mr Devereux QC submitted that:
Archie is a person with disabilities and, as such, has a right under international human rights law to have his case examined by the authoritative international body specialised in defending the rights of people with disabilities and eliminating discrimination against them. If the substantive application is upheld, that would mean a finding by CRPD that the withdrawal of LST from Archie would amount to the most serious form of discrim-ination against people with disabilities: if so, that would plainly be a breach of the Equality Act.’
The families’ legal team have said that the interim measures are an important change of circumstances which warrant the Court revisiting its previous ruling on the stay.
The UN CRPD has previously criticised the UK system of withdrawing life-sustaining treatment based on the patient’s ‘best interests’ as determined by the Court. In its 2017 “Concluding observations on the initial report of the United Kingdom” on UK’s compliance with the Convention, the CRPD stated: “The CRPD notes with concern that the substituted decision-making applied in matters of termination or withdrawal of life-sustaining treatment and care is inconsistent with the right to life of persons with disabilities as equal and contributing members of society.”
The hearing continues, and a decision is expected by the Court of Appeal today.
