The Round-Up: Child Spies, Equal Opportunity for Fertility Treatment, and CJEU to rule on Article 50 revocation
1 October 2018
The courts open again for Michaelmas term today, but in the meantime the round-up has the latest on a fresh set of challenges to government and NHS policy, plus a successful Brexit reference to the ECJ.
Firstly, a legal action seeking to establish whether the UK can unilaterally revoke Article 50 of the Lisbon Treaty has been referred to the European Court of Justice by the Court of Session, Scotland’s supreme civil court.
The action was brought by a cross-party group of six Scottish MPs, MEPs and MSPs, and the Good Law Project. The case was initially rejected in June as “academic and hypothetical”, but on appeal judges rejected the government’s core argument that the question was “academic” given that their policy is to leave the EU. Lord Carloway, Scotland’s most senior judge, commented: “It seems neither academic nor premature to ask whether it is legally competent to revoke the notification and thus to remain in the EU.”
Whilst references to the ECJ can take four to eight months to be determined, there is precedent for far speedier rulings on urgent questions, and it is currently understood that the case may have an answer before Christmas.
Just For Kids Law have issued a pre-action letter against the government, arguing that its use of child spies contravenes the UN Convention on the Rights of the Child.
Whilst it is understood that the practice has been occurring for a number of years, it came to the fore in July, when peers raised concerns after ministers sought to use secondary legislation to increase their powers in this regard. The changes gave authorities more time to use child spies without needing reauthorisation, and broadened the range of ‘appropriate adults’ required to be present in meetings between those under 16 and their handlers.
Since then, concern has grown, with the joint committee on human rights asking the Home Office to explain how many juveniles have been recruited, their ages and the type of crimes they are being used to investigate. Committee chair Harriet Harman said that assurances given by security minister Ben Wallace had only served to deepen concern – and earlier this month, Wallace admitted that the Home Office did not know how many children had been used as spies.
Just for Kids Law said that the aim of their legal action was to force a change in the guidance governing the use of child spies which would ensure greater safeguards. Chief executive Enver Solomon said that the guidance must ensure that children are only used in the most exceptional circumstances and with proper safeguards in place for all under-18s.
The equality watchdog, the Equality and Human Rights Commission, is proceeding with a claim in judicial review against NHS England over its failure to provide fertility services to transgender patients.
Treatment which helps transgender people to transition can result in loss of fertility – by extracting and storing eggs and sperm before transitioning, trans people retain the option to become biological parents later in life. Often patients are keen to begin the process of transitioning from their teenage years, at which point many cannot afford to pay for fertility services. The EHRC argues that such services should be offered as standard procedure to trans patients, as failure to do so would amount to discrimination through lack of equality of opportunity. In a pre-action letter in August, the watchdog called current NHS policy ‘outdated.’
Currently, individual clinical commissioning groups have the choice as to whether to provide this service on the NHS. NHS England continues to argue that it has no obligation to ensure fertility treatment is provided for everyone at the national level, including for transgender people, and cites a time of growing demands and budget strains across the health service.
Finally, in a note sent from the Home Office to an asylum seeker’s solicitor, it has emerged that some asylum seekers have been banned from accommodation in north-east England because of ‘social cohesion issues.’ The department said that it had an agreement with local authorities not to house any ‘foreign nationals with known criminality in the north-east because of ongoing social cohesion issues in the area.’
Some sources have reported that a local surge in far-right activity has influenced councils in refusing requests to house any asylum seekers. Earlier this year, the Labour MP for Sunderland Central, Julie Elliott, also wrote to the home secretary asking that the Home Office stop sending asylum seekers to the area due to local tensions. In response, a Lib Dem councillor accused Elliott of ‘scapegoating’ asylum-seekers. Sheroy Zaq, of Duncan Lewis Solicitors, to whom the letter was sent, said that using ‘social cohesion’ as a basis for depriving foreign nationals of their liberty was ‘squarely discriminatory,’ and that they intend to challenge the agreement accordingly.