When is it too harsh to separate a child from their parent?

16 October 2020 by

Image: Wikipedia

HA (Iraq) [2020] EWCA Civ 1176 and AA (Nigeria) [2020] EWCA Civ 1296

There has, in recent years, been a proliferation of case law on appeals against deportation by foreign national criminals on grounds of private and family life.  The statutory scheme is complex enough, but the various tests (“unduly harsh”, “very compelling circumstances”) have also been subject to extensive judicial gloss, leaving practitioners and judges to wade through a confusing sea of alphabet-country soup case names.

It will come as welcome news, then, that the Court of Appeal has greatly simplified things by encouraging tribunals to focus on just a handful of key authorities.  In doing so, it has also somewhat softened the approach to determining whether separating a foreign national criminal from his settled child or partner is “unduly harsh.”


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The UK Internal Market Bill and the Mother of all Ouster Clauses – Ronan Cormacain

15 October 2020 by

The United Kingdom Internal Market Bill is due for second reading in the House of Lords on 19 October 2020.  It is not an understatement to say that the Bill contains provisions which represent one of the most egregious assaults on the Rule of Law in recent times, nor is it an understatement to say that there is a remarkable hostility to it from across the political spectrum, and across the Brexit divide..  It has also united the UK’s legal profession against it.   In Reports for the Bingham Centre for the Rule of Law here and here we pointed out how this violation of international law breaches the Rule of Law.  I have also previously argued that the Bill contains an unacceptable breach of domestic law.  The former Attorney General Dominic Grieve argued that the Bill contained an unacceptable ouster clause.  I wish now to hone that argument by characterising what is now clause 47 of the Bill as containing not just a simple ouster clause, but the mother of all ouster clauses.

Brief explanation / history of ouster clauses

An ouster clause is a provision in primary legislation which ousts the jurisdiction of the courts.  It deems that provision (or decisions made under or in accordance with that provision) as not susceptible to judicial challenge. An ouster clause makes the subject matter of the clause non-justiciable, putting it outside or beyond the reach of the courts.

Parliament and the courts have played a game of cat and mouse over ouster clauses for at least the last 70 years.


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When will there be unlawful detention under the Detained Fast Track system?

14 October 2020 by

The Court of Appeal has delivered a judgment in PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213 regarding unlawful detention under the Detained Fast Track system, which indicates that a fact sensitive approach must be adopted to each case. This judgment is likely to be particularly relevant in giving guidance to practitioners whose client has previously lost an appeal under the Detained Fast Track Rules who are considering or working on claims for damages for unlawful detention.

Legal Background

In July 2015 the Court of Appeal declared that the Detained Fast Track system, which provided strict time limits for preparing appeals alongside mandatory detention, was unlawful. This was primarily because “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases” ([45], per Lord Dyson). It did not, however, say what would happen to appeals that had been decided under this system, where wrong results may have been reached owing to this unfair procedure.

In R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838 (‘TN (Vietnam)’), the Court of Appeal answered this question. Lord Justice Singh emphasised that whether a First-tier Tribunal decision must be quashed owing to unfairness will be a matter of fact based on how far the Detained Fast Track Rules touched on the decision. The Court of Appeal in PN (Uganda) summarised the principles established in TN (Vietnam) as follows:

35. … (1) a high degree of fairness was required in the proceedings; (2) the 2005 DFT Rules created an unacceptable risk of unfairness in a significant number of cases; (3) there was no presumption that the procedure was fair or unfair; (4) finality in litigation was important; and (5) a long delay in locating what was said to be critical evidence might suggest that the unfairness in the 2005 DFT Rules did not make the proceedings in the FTT unfair. The Court noted at paragraph 90 that whether the proceedings were in fact unfair and liable to be set aside would “depend on a careful assessment of the individual facts”.

The decision in PN (Uganda) provides a helpful application of these principles.


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The Weekly Round-up: Operation Cygnus, lawyers in the firing line, and a new undercover policing bill

13 October 2020 by

Photo: Richard Townshend

In the news

The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.

Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.


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Folk Heroes, Villains and the Overseas Operations Bill — Conall Mallory

12 October 2020 by

UK troops leaving Afghanistan. Image: Flickr

The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.

This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here  and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.


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Schrems 2 for the UK? CJEU Ruling Threatens Future Adequacy Talks

10 October 2020 by

Case C‑623/17

The CJEU ruled on Tuesday that Directive 2002/58/EC (‘the Directive’) precludes national legislation from ordering telecommunication companies to transfer data in a “general and indiscriminate” manner to security agencies, even for purposes of national security. This is following a challenge by Privacy International to UK security agencies over their practices of collecting bulk communications data (BCD). 

The ruling could throw up roadblocks to a post-Brexit “adequacy” agreement over the UKs data protection regime. Adequacy is granted to data protection regimes to confirm that they conform to the data protection standards of GDPR, and thus that companies may move data about EU data subjects outside of the EU to those regimes. Recently, the adequacy rating of the US “Privacy Shield” was invalidated by the Schrems II judgment. This ruling could prove to be an analogous issue for the UK’s adequacy rating at the end of the transition period. 


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Court of Appeal dismisses challenge to increase in state pension age

9 October 2020 by

Image: Wikipedia

In Delve and Anor v SSfWP [2020] EWCA Civ 1199, the Court of Appeal dismissed the challenge brought against the series of Pensions Acts between 1995 and 2014 which equalised the state pension age for women with that of men by raising the state pension age for women from 60 to 65 and then raising the age at which both men and women can claim their state pension.

The Appellants were two women born in the 1950s, whose pension age has been raised to 66. They contended that although one of the aims of the Pensions Act 1995 was to end the discrimination based on gender, “this equalisation has run ahead of actual improvements in the economic position of women in their age group.” [2]

It was their contention that this gives rise to:

1. direct age discrimination contrary to Article 14 ECHR in conjunction with Article 1 of the First Protocol (A1P1); and

2. indirect sex discrimination contrary to EU law and indirect discrimination contrary to Article 14 on grounds of sex or of sex and age combined.

It was also argued that the Secretary of State failed in her duty to notify them far enough in advance of the fact that they would not, as they expected, start receiving their pension at age 60.

The Court rejected each ground of appeal.


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Law Pod UK: Bats, Beavers & protected species

6 October 2020 by

This is the second instalment of our collaboration with the Environmental Law Foundation, with environmental experts Mark AveryNikki Gammans and Carol Day, consultant solicitor with Leigh Day.  (Listen to the first instalment here: Episode 126)

ELF are acting for acting for local residents in the Forest of Dean on a translocation of pine martens from Scotland. They discuss bats, other protected species and relative success of the introduction of beavers to the British Isles with Rosalind English.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

The Weekly Round-Up: Happy (Legal) New Year!

5 October 2020 by

Temple Church

In the News:

On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year.  He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.

The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.


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Law Pod UK new episode: Reintroducing the birds and the bees

29 September 2020 by

Through a collaboration with the Environmental Law Foundation we bring you Episode 126, a panel discussion with environmental experts Mark Avery and Nikki Gammans in discussion with Carol Day, consultant solicitor with Leigh Day. This is the first instalment of two of these panel discussions.

A plethora of reintroductions of various species have been making the news recently, with such charismatic species as White Sea Eagles and Red Kites. Dr Mark Avery from Wild Justice discusses with Carol Day how well these projects are working. They also strike a note of caution about the proposal to reintroduce Hen Harriers in the south. Dr Nikki Gammans of the Bumble Bee Conservation Trust talks about the reintroduction of the Short Tailed Bumble Bee. This species as taken to New Zealand in colonial times, and the population remained there after it went extinct in the UK. The Bumble Bee Trust is running a project to bring them back to this country.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

The Weekly Round-up: The Coronavirus Act 2020 under review

28 September 2020 by

Harriet Harman MP, chair of the Joint Committee on Human Rights. Photo: Chris McAndrew

In the news

This week, 6 months after it was passed, the Coronavirus Act 2020 is due for a review in Parliament. In advance of that review, the Parliamentary Joint Committee on Human Rights has published a report on the human rights implications of the government’s response to COVID-19. In the report, the committee highlights a wide range of failings, including in particular: widespread confusion over what is law and what is guidance; police failing to fully understand their powers under coronavirus legislation; privacy, data protection and discrimination concerns about test & trace; reduced access to justice; disproportionate harm to school children with special educational needs and disabilities; and harms inflicted by blanket bans on visits to people in care homes, prisons, and mental health facilities. The report can be viewed here; the JCHR’s proposed amendments to the coronavirus legislation to be discussed this week are here.  

The JCHR is also due on Monday to scrutinise the government’s Overseas Operations (Service Personnel and Veterans) Bill, which proposes a presumption against prosecution for service personnel and veterans. Concerns have been raised about the risks of the UK contravening its international legal obligations, and creating impunity for serious war crimes and torture.

Concerns about surveillance in the UK continue, as it was revealed this week that surveillance cameras manufactured by Chinese company Hikvision are being used across the UK; their use has expanded in the wake of the COVID-19 pandemic. Hikvision was blacklisted by the US government for human rights violations in connection with the Uighur concentration camps in Xinjiang. Hikvision says it has been engaging with the UK and US governments to “clarify misunderstandings”, and claims it is “committed to cybersecurity standards which are compliant with the most rigorous certifications and best practices.”


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A Life’s Work: Justice Ruth Bader Ginsburg — Ruby Peacock

25 September 2020 by

Ruth Bader Ginsburg. Image: The Guardian

In a career defined as much by powerful dissenting judgments as by winning oral arguments, Ruth Bader Ginsburg blazed a trail particularly for women, but also minorities and the LGBTQI+ community, to receive equal treatment under the law. This article will follow that trail, from her early women’s rights arguments in the 1970s to her powerful dissenting judgments, which earned her the affectionate title of ‘the Notorious RBG’ in later life. 

To commemorate her death last Friday at 87 years of age, this extended article will look at her extraordinary professional life.


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Were the March 2020 lockdown restrictions lawfully imposed? (Part 2) — Emmet Coldrick

25 September 2020 by

The Prime Minister announces the lockdown on 23rd March. Image: The Guardian

Emmet Coldrick is a barrister at Quadrant Chambers, London.  The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

The first article in this two-part analysis examined whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”. It can be found here.

This second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.

The two articles are a condensed version of a full analysis which may be found here.

This is the second part of a blog post on this topic.  The first part concluded part-way through a discussion of whether the Regulations fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.

Proper approach to interpretation where fundamental rights are in issue

A troubling feature of the section of the judgment in Dolan that deals with the ultra vires issue is that it makes no reference to the gravity of the restrictions on liberty imposed by the Regulations or of the fact that, on the Secretary of State’s case, the Act confers powers to impose still graver restrictions on fundamental rights.  Instead, the judgment refers blandly at paragraph 43 to “the adoption of a range of measures”.

It is also regrettable that, while glossing over of the seriousness of the interference with fundamental rights that would be permitted if his interpretation of the Act were correct, the Secretary of State stressed the “threat”, submitting that “… it would be absurd if the provisions were to be read otherwise given the nature of the public health threat …” (judgment para. 36).  That approach to the question of the scope of the Secretary of State’s powers is redolent of the kind reasoning that characterises justifications of rule by diktat and is the antithesis of the rule of law.  A decree that no one may leave her home without reasonable excuse, or gather with more than one other person in a public place, is the sort of restriction that might be imposed by a totalitarian regime or an invading foreign power.

It is welcome that in his Reasons for granting permission to appeal, Hickinbottom LJ noted that “… not only did/do the challenged Regulations impose possibly the most restrictive regime on the public life of persons and businesses ever – certainly outside times of war – but they potentially raise fundamental issues concerning the proper spheres of democratically-accountable Ministers of the Government and judges”.


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Were the March 2020 lockdown restrictions lawfully imposed? (Part 1) — Emmet Coldrick

24 September 2020 by

How the lockdown was reported by the newspapers in March. Image: The Guardian

Emmet Coldrick is a barrister at Quadrant Chambers, London.  The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”. The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.

These articles are a condensed version of a full analysis which may be found here.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England.  They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).

These extraordinary new laws were made without prior debate in Parliament.  The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.

On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one.  The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”).  That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.

Mr Dolan’s challenge is pending in the Court of Appeal.  It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health [2020] EWHC 1786 (Admin) (6th July 2020).  But the Act presents difficulties in interpretation that were not grappled with in the judgment.  I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.


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A bonanza of C-19 challenges

23 September 2020 by

With Baroness Hale’s recent criticism of the emergency measures taken by the government ringing in our ears, the following information from across the Atlantic might be of interest. The New England firm Pierce Atwood LLP has compiled a list of class actions related to COVID-19 in the United States, including all filed and anticipated cases up to 9 September 2020. Although their survey only covers litigation in the US, a similar trend may be predicted in this country, albeit on a smaller scale, even as the pandemic continues to unfold: indeed Alethea Redfern has made reference to such a likelihood in this week’s Round-Up. The authors of the US report observe that, despite “unprecedented court closures and changing procedural rules”,

class actions have steadily increased and are expected to expand across industries, jurisdictions, and areas of law. The impact of COVID-19 on business operations, consumer activity, and economic forecasts has made clear that the filings to date are only an early indication of what is to come.

The report provides a categorised summary of coronavirus-related class action litigation filed to date, highlighting the core allegations of each complaint. You will find the individual case citations in their post on Lexology.


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