Round Up 16/12/19: The Supreme Court moves towards a new President and the small matter of a general election…

18 December 2019 by Thomas Hayes

This week sees Baroness Hale sitting for the final time as President of the Supreme Court. Photo credit: The Guardian.

A brief delay to the publication of this article has helpfully afforded this blogger the opportunity to move beyond the political events of last Thursday and instead focus on much more interesting legal matters (more on those later).

However, it would be remiss not to recognise the consequences of last week’s election, which saw the Prime Minister return newly empowered by a sizeable Conservative majority. At the time of writing, proposals were being made to put the legislation required to withdraw from the European Union back to MPs as early as this Friday.

Sneaking in at page 17 of the Conservative manifesto (one page after a commitment to extend the water rebate in the South West) came the party’s offering on law and order. This included commitments to increase the number of police, enhance the use of “fair and proportionate” stop and search, as well as promote longer sentences and the greater use of electronic tags. The manifesto was however silent on some matters which have drawn attention of late, including court closures, legal aid cuts, and previous suggestions from ministers that the Human Rights Act might be amended to protect soldiers from prosecution for acts performed during their time in service. With such a significant majority however, the Government will be in a position to pursue its chosen agenda with enthusiasm, and so these and other mooted at policies, such as reform of the judicial review process, may not be as fanciful as previously thought.

Moving gratefully on from politics, today saw the first day in the case of XX v Whittington Hospital NHS Trust (appealing [2018] EWCA Civ 2832), which also serves as Baroness Hale’s final case as President of the Supreme Court before her replacement on January 11^thby Lord Reed. The case provides an interesting example of a scenario in which factual matters combined with absent or inadequate law require the court to consider matters of a deeply public policy nature.

The claimant, by virtue of the defendant hospital’s admitted negligence, suffered delays to the management of her cervical cancer which meant that at the time she was diagnosed, no fertility sparing treatment options remained. She now seeks to start her family through surrogacy, and is minded to do so in California, where she will be able to take advantage of legal protections absent in the UK.

In the United Kingdom, it is a criminal offence to advertise for a surrogate, or to offer oneself as a surrogate, under the provisions of the Surrogacy Arrangements Act 1985. Surrogates are only entitled to receive reasonable expenses in return for their actions. Furthermore, the surrogate mother is under no obligation in law to give up her child to the biological parents after delivery. In contrast, should the claimant pursue surrogacy in California, she would benefit from commercial surrogacy arrangements binding upon the parties, as well as a pre-birth order confirming her legal status as the child’s parent.

At first instance, the hospital succeeded in arguing that as such a contract would be unlawful in the UK, the claimant could not succeed in recovering the costs of pursing surrogacy in California (relying upon the decision in Briody v St Helens and Knowsley Area Health Authority [2002] QB 856). Any such recovery, facilitating through public funds behaviour which would be illegal in the UK, was considered offensive to the public interest.

The Court of Appeal disagreed, holding inter alia, that the provisions of the Surrogacy Arrangements Act 1985 only extend to the UK. Consequently, the claimant could not be held to be pursuing a course of action illegal in either the UK or California. The case was referred to in a lecture given only last week by McCombe LJ, one of three judges who heard the appeal, at a qualifying session at Lincoln’s Inn. In his lecture, his lordship described the difficulties in weighing such matters, particularly where the law is unclear. In a further interesting twist, one of the judges in the case of Briody was none other than Hale LJ (as she was then), who will now in her final case be required to consider and rule upon her own judgement from 17 years ago.

In other news…

• Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019): The Supreme Court gave judgement in two linked appeals concerning the residence rights of non-EU relatives who act as carers for a UK citizen dependent. Regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006 protects “primary carers” of UK citizens who would themselves then be “unable to remain in the UK” were that carer required to leave. Patel sought to rely on this to secure residence as a care giver to his UK citizen elderly patients, one of whom he supported to use home dialysis. In Shah, the dependant was a UK citizen child who received care primarily from his father, a Pakistani national facing deportation. After examining the circumstances, the court found that the burden imposed on Shah’s son were his father to be removed and he to be cared for solely by his mother, would be so great as to give his father a derivative right of residence. This was not the case in Patel, whose parents could adequately be cared for without him, and who would not be compelled to leave the UK, even in the absence of their son’s care.
• The High Court gave preliminary rulings as to the meanings of statements in a defamation case brought by businessman and prominent leave campaigner Aaron Banks against the journalist and author Carole Cadwalladr – Banks v Cadwalladr [2019] EWHC 3451 (QB). The case concerns a “TedTalk”, broadcast and tweets made by the journalist. The judge concluded that the materials complained about either made allusions to contact between Mr Banks and Russian contacts in relation to foreign electoral funding or suggested there was a basis for pursuing criminal charges against Mr Banks.

Finally, the week ahead will see the first United Nations Global Refugee Forum, focusing on the plight of migrant workers and refugees. The event coincides with International Migrants’ Day on December 18^th and the anniversary of the Global Compact on Refugees. In response, CIVICUS, the global civil society alliance, and Solidarity Centre, the largest global labour rights organisation based in the United States, are offering experts for comment on topics including:

1. What about democracy? In recent research, migrant workers and refugees say harassment and pressure from employers prevent them from accessing universal freedoms to join together in public spaces, form unions and express their views.
2. How are the Global Compacts measuring up one year on?
3. How has closing the space for civil society and rising authoritarianism impacted the ability of migrant workers and refugees to exercise their fundamental rights to freedom of association, expression and assembly?
4. Refugees and migrant workers’ rights at work.

Those interested in learning more are advised to contact media@civicus.org for more information.