10 cases that defined 2019
19 December 2019
And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts.
And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?
1. The rogue prorogation
R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41
Top of the charts, of course, is the Supreme Court’s unanimous decision in September that new Prime Minister Boris Johnson’s suspension of Parliament for 5 weeks was unlawful.
Amid the deadlock of a hung Parliament and knowing that MPs were likely to vote to prevent him from embracing the possibility of a No-deal Brexit as a bargaining chip at his negotiations with the European Union, the Prime Minister took the decision to advise the Queen to prorogue Parliament for a very unusually long period. What Her Majesty said to the PM at their audience we may never know, though perhaps Peter Morgan will show us one day.
But in a hugely important decision, the Supreme Court held that the lengthy prorogation was an unjustified interference with the twin principles of Parliamentary sovereignty and Parliamentary accountability.
You can read all about the case on the Blog here, or listen to our podcasts about it here and here.
One more thing to add. Now that it has been decided, perhaps it seems obvious that what the PM did was unlawful. After all, 11 Judges of our highest court have said so. But it is important to remember that before that ruling a panel comprising the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division had found that the issue was not something that the court could decide. Hindsight confers an illusion of inevitability.
2. What is a ‘mother’, in law?
R (TT) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam)
Right at the cutting edge of new issues in equality law, the President of the Family Division ruled that a person who undergoes the physical and biological process of carrying a pregnancy and giving birth must be registered as the baby’s mother even if they are are legally recognised to be of male gender.
In this case, the claimant’s registered gender at birth was female, but he had lived for many years as a transgender male and had been granted a Gender Recognition Certificate to this effect. In 2016, following IVF he gave birth to a baby.
After the Registrar General held that he had to be registered as the mother of the baby on the birth certificate, he sought a declaration that as a matter of law he is to be regarded as the father on the basis of Article 8.
However, in is one of the first domestic cases to deal with the impact of gender reassignment with respect to parenthood, the High Court held that he had to be registered as the mother.
We discussed the case on the Blog here and on our podcast here.
3. Shamima Begum deprived of citizenship
This case has not yet reached a substantive hearing, but one of the most high profile issues this year concerned Ms Shamima Begum, who was born in the UK to parents of Bangladeshi heritage but travelled to Syria in 2015 to join Islamic State.
After arriving in Raqqa, she married ISIS fighter Yago Riedijk and had three children with him, two of whom died. On 19th February the Home Secretary took the decision to deprive her of her British citizenship on the basis that this would be “conducive to the public good”. She began appeal proceedings at the Special Immigration Appeals Commission (SIAC) in October. Part of her case is that she never became a Bangladeshi citizen and so the decision would render her stateless.
In recent years the Home Office has made increasing use of the power to deprive dual nationals (or apparent dual nationals) of citizenship and this case may raise the profile of a power regarded by some as a revival of the ancient punishment of exile, which has been criticised for its unequal effect on dual nationals.
We covered the case on the Blog here. We also discussed a similar case brought by the father of an IS fighter here.
4. ‘Bedroom tax’ ruled unlawful
JD and A v United Kingdom (nos. 32949/17 and 34614/17)
In November the European Court of Human Rights delivered its verdict on the compatibility of regulations introduced in 2012 which meant that those in social housing with an ‘extra’ bedroom had their housing benefit reduced with the prohibition on discrimination set out in Article 14 in conjunction with the right to property under Article 1 of the First Protocol of the European Convention on Human Rights.
The Strasbourg Court has found that the policy discriminated unlawfully against women at risk of domestic violence, whom it incentivised to leave their homes.
We covered the case on the Blog here.
5. Rights of appeal for extended family members of EEA nationals
Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC)
The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.
This year saw the conclusion of a long legal battle which went right up to the European Court of Justice and has ended with the restoration of full appeal rights to these ‘extended family members’, a very important right given that 50% of immigration appeals (across the board) are now successful.
We covered the conclusion of the case on the Blog here and the earlier stages of the case here and here.
6. Anisminic 2.0
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
Public law students will be very familiar with the history of ‘ouster clauses’, provisions in statute which are designed to prevent the High Court from exercising the power of judicial review over decisions made by another public body.
In this case the Supreme Court had to consider whether decisions made by the Investigatory Powers Tribunal, the body with jurisdiction to examine the lawfulness of a decision by the security services to put a person under surveillance, were immune from judicial review.
The court held that despite a clause which provided that “Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”, the decisions of the IPT were nevertheless subject to judicial review.
We covered the case on the Blog here. This was another Supreme Court judgment which overturned the decision below — we covered the Court of Appeal’s decision back in 2017 here.
7. Facial recognition technology
R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department[2019] EWHC 2341 (Admin)
In September the Divisional Court dismissed a claim that the use of Automated Facial Recognition Technology was contrary to Article 8, the Data Protection Acts and relevant equality legislation.
The new technology captures the facial biometrics of people passing within range of surveillance cameras and compares it to those of people on police watchlists, making it a very powerful tool for the prevention and detection of crime.
This was the first time the courts have been asked to undertake a detailed examination of the lawfulness of using this technology and it was held that the current legal regime is adequate to ensure its appropriate and non-arbitrary use in a free and civilised society. But this may not be the last we hear of it.
We covered the case on the Blog here.
8. The ‘right to rent’ scheme
The government’s ‘hostile environment’ immigration policy took a hit in the High Court, which declared the ‘right to rent’ scheme to be unlawful.
The scheme required private landlords to check the immigration status of tenants and potential tenants and provided that knowingly leasing a property to a disqualified person would be a criminal offence, punishable by up to 5 years’ imprisonment, an unlimited fine, or both.
However, the court held that the scheme created an unfair playing field in the housing market which was incompatible with Article 8 (private and family life) and Article 14 (prohibition on discrimination) of the ECHR and s. 149 of the Equality Act 2010.
We covered the case on the Blog here.
9. A victory for the Chagossians
The Chagos Archipelago consists of a number of islands and atolls in the Indian Ocean. Between 1967 and 1973, its entire population was removed by the United Kingdom to enable a joint US/UK base to be established on Diego Garcia, the largest of the islands, an act now accepted by the British government to have been “shameful and wrong” (see para 77 of the ICJ’s Opinion).
This has been the subject of a good deal of litigation, the latest of which resulted in an advisory opinion from the International Court of Justice that the separation of the Archipelago from the then British colony of Mauritius was contrary to the right of self determination and not in accordance with international law.
The ICJ held that Britain’s continued administration of the islands should cease as soon as possible, but it remains to be seen whether this will result in further action by the British or American governments.
We covered this case on the Blog here. We have also covered many other parts of the Chagos litigation, which can be found here.
10. Detention of asylum seekers
R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56
And finally, earlier this month the Supreme Court held that the policy governing the detention of five asylum seekers who had entered via the EU was unlawful.
The individuals had travelled to the UK illegally and sought asylum after having entered via at least one other EU member state where they had already claimed asylum.
Relying on the procedure set out in the Dublin III Regulation, the government requested those states to take responsibility for examining the asylum claims and each state agreed. The individuals were held in immigration detention pending their removal.
However, the Supreme Court held that the policy under which the individuals were detained lacked adequate certainty and predictability and was therefore unlawful. The judgment also included a very interesting discussion of whether a government policy could ever amount to a ‘law’.
We covered the case on the Blog here.
As ever, it has been a pleasure editing the Blog over the past year. I wish you all a very happy and restful break. See you in 2020!
Jonathan Metzer
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Thank you so much Jonathan for this compilation of very different but important legal jurisdiction decisions over 2019.
As always a well presented and researched article for the benefit of the reader. Thank you.
Thank you for the kind words and really pleased you enjoy reading it as much as we enjoy doing it!