The Round-Up: The Heathrow Expansion and Law’s Expanding Empire
22 October 2019
In the News
The debate about the proper role of judges in our democracy has taken on the shape of the political landscape in which we find ourselves: pitched between two distant poles. Lord Sumption’s Reith lectures put forward the thesis that the courts have been getting more powerful while politics has been getting less powerful; he criticises this perceived shift, holding that while ‘law has its own competing claim to legitimacy … it is no substitute for politics’. Lady Hale’s recent response rejected ‘the suggestion that judicial processes are not also democratic processes,’ proffering instead the view that the courts have been, and must go on, ‘doing their job — the job which Parliament has given them or which the common law has expected of them for centuries’. Brexit, the polarising problem which has been pushing judges into the public eye recently, seems also to have pushed them into expressing starkly opposite points of view.
Given the vast, intricate, all-consuming issue that gave rise to the debate, it is interesting that both Lord Sumption and Lady Hale begin by centring their arguments on an acutely intimate issue. Lord Sumption singles out the case of Charlie Gard as an example of ‘law’s expanding empire’. He argues that the High Court’s intervention into the baby’s treatment illustrates an increasing tendency of the law to limit individual autonomy, even in cases where the exercise of that autonomy does no harm to others, and there is no consensus as to its morality. After making it clear that she will not be addressing the Supreme Court’s recent decision on the prorogation of Parliament, Lady Hale tackles this argument at once. Citing the decision of the High Court in the case of Tafida Raqeeb earlier this month, she argues that far from judicial over-reach, these cases simply illustrate the courts doing their job well: ‘resolving disputes according to clear legal standards in the light of all the available evidence’. The distinction between the cases of Charlie Gard, Alfie Evans and Isaiah Haastrup, in which doctors were allowed to withdraw life support, and Tafida’s case, in which her parents were permitted to transfer the child to Italy for treatment, was that the evidence as to her prognosis, awareness and pain level was less clear cut. Mr Justice MacDonald acknowledged that the decision as to her medical best interests was made on ‘a fine balance’.
It is difficult to accept that in cases like these—which involve strongly-held religious and cultural convictions, conflicting medical evidence, clashing public opinion, desperate parents, and desperately unwell children—intervention by the courts is nothing more than an exercise in clarity and objectivity. Equally, it is difficult to accept that the courts have no place whatsoever in such decisions. Whichever view you take, it’s a leap to accept that a problem on this scale, even a very knotty and complicated problem on this scale, should be stretched and expanded to make a bigger point about how politics and the law ought to interact when it comes to the most fundamental, far-reaching problem facing our country today.
Unsurprisingly, both Lord Sumption and Lady Hale chose their words fastidiously. If there was a stretch or expansion to be made, they invited their audiences to make it themselves. What then did Lady Hale want her audience to understand by her comment, at the very conclusion of her lecture, that she took comfort in the fact that ‘in the Supreme Court we are not alone’ since ‘there is safety in numbers’? Rightly or wrongly, our judiciary is embroiled in a political issue which has whipped up violent threats against MPs on both sides of the debate and resulted in the first killing of a sitting British MP since the Troubles. Whether the sitting Justices acted as lions under the throne, “Enemies of the People,” or simply did their jobs, they acted unanimously. Perhaps Lady Hale’s closing comment subtly reminds us why.
In related news, the Supreme Court has extended human rights protections to whistleblowing judges, unanimously granting an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996. After receiving death threats and dealing with violent litigants, Claire Gilham secured the right to receive standard employment protections given to all other workers. In her judgement, Lady Hale stated that to deny Gilham these remedies would ‘be an interference with her right to freedom of expression, protected by article 10 of the European convention on human rights.’ Speaking outside the Supreme Court, Gilham said that the decision would only enhance the independence of the judiciary, ‘and that is a valuable constitutional safeguard’.
In other related news, the Court of Appeal has unanimously refused Liberty permission to have heard an urgent application seeking to prevent Boris Johnson crashing out of the European Union without a deal. Liberty’s director Martha Spurrier framed the case as being ‘nothing to do with Brexit. It is about ensuring the government … obeys the law’. Three senior judges, the lord chief justice, Lord Burnett of Maldon, the master of the rolls, Sir Terence Etherton, and president of the Queen’s bench division, Dame Victoria Sharp, agreed that there was no need for the matter to be considered by the English courts immediately, and said they would give their reasons at a later date.
Finally, in a development which some might consider more pressing to our children’s wellbeing and nation’s security than those discussed above, an ongoing battle to block the expansion of London’s Heathrow Airport will resume in the Court of Appeal on Thursday. The Guardian’s environmental correspondent reports that lawyers will argue that the expansion violates the climate rights of children and future generations, who will face the greatest impact of the climate crisis. She notes that the intervention comes ‘after young people spearheaded the biggest climate change protest in history last month, and follows Greta Thunberg’s challenge to world leaders that their inaction was letting down a generation’. As long as Brexit looms large on the horizon, however, it seems unlikely that environmental issues will truly take the foreground.
In Other News
- The Guardian reports that a new study by the Oxford Technology and Elections Commission has warned that government, political parties and social media companies all need to take immediate action to reduce the risk of malicious actors in the UK and abroad from contaminating the results of a looming general election.
- The Guardian has also covered the stories of a number of academics the Home Office plans to deport, or has given two weeks to leave the country, or whose children it has refused visas. The paper repeats the comments of an immigration lawyer who states that the UK immigration system is ‘failing academia’ and ‘undermining the efforts of educational institutions to attract and retain global academic talent.’ In a related story, the Home Office has overturned its ban on an NHS eye doctor returning to Brtain after the same paper highlighted his case.
- The Independent outlines the Bar Council’s calls for the implementation of a number of proposals outlined by the government in its recent consultation on sexual harassment at work. The vice-chair of the council’s law reform committee expressed her view to the paper that the legal protections currently in place are not having the desired result and there is still widespread harassment taking place in the workplace.
- The Telegraph outlines new guidance from the Equality and Human Rights Commission which provides that non-disclosure agreements must not prevent employees from bringing discrimination cases against their employer. Additionally, the guidances emphasises that NDAs should never prevent employees ‘from whistleblowing, reporting criminal activity or disclosing other information as required by law.’
- The Independent reports on an analysis of official statistics by the Local Government Association which suggests that the number of council referrals of suspected child victims of modern slavery in England to the National Referral Mechanism has risen at an alarming rate in recent years. The paper asserts that affected children are falling back into exploitation and homelessness as local austerity-hit authorities struggle to deal with the surge.
In the Courts
- Gray v Mulberry Co (Design) Ltd  EWCA Civ 1720: The Court of Appeal ruled an employee’s belief that there was a statutory human or moral right to own the copyright and moral rights of her own creative works and output, except when produced on behalf of an employer, did not amount to a ‘philosophical belief’ for the purposes of the Equality Act 2010 s10(2). Accordingly, the employee, who had been dismissed after she failed to sign a confidentiality agreement on the basis of that belief, had not been discriminated against.
- Re O (Committal: Legal Representation)  EWCA Civ 1721: The Court of Appeal held that respondents to committal proceedings were entitled to be provided with legal representation if they wanted it, and would qualify for non-means-tested legal aid. Courts were obliged to ensure that such protection was made available, otherwise any resulting committal order might be procedurally irregular.
- GM (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 1630: The Court of Appeal held that the First-tier Tribunal had erred by failing to consider relevant facts and misapplying appropriate legal tests in considering a Sri Lankan national’s claim that her removal from the UK would be in breach of her rights under ECHR Article 8. The Home Secretary was directed to reconsider her claim, taking into account that since the original decision her husband and two children had been granted indefinite leave to remain and the children had developed strong social links within the UK.
On the UKHRB
- Will Hanson summarises and assesses the significance of Gilham (Appellant) v Ministry of Justice (Respondent)  UKSC 44, a recent unanimous Supreme Court decision to grant an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 and therefore could not benefit from the whistleblowing protections it conferred.
- Alice Kuzmenko outlines Lady Hale’s recent response to Lord Sumption’s Reith Lectures, and lays out some further points which might be made in support of her Ladyship’s argument.
- Conor Monighan summarises and analyses some of the main points of interest arising from the Alba Conference 2019.