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This Government’s key message has been its ability get things done, whether it be Brexit, HS2 or stopping the spread of Coronavirus.
Indeed, if the new high speed trains move as swiftly as the Health Secretary did on Monday, then they might break the sound barrier: the Health Protection (Coronavirus) Regulations 2020 were enacted at 6.50am on Monday and laid before Parliament by 2.30 that afternoon. Their preamble states that
the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.
One can appreciate the desire to bypass the cumbersome mechanics of Parliament to save the country from a potentially deadly virus. But in the fullness of time, the resulting Regulations might well be held up as an excellent advertisement for Parliamentary scrutiny.
It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year.
It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment.
The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition.
Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.
The Government has announced that it will introduce emergency legislation to prevent terrorists from being automatically released after they have served half their sentence. Under the proposals, the parole board would have to authorise offenders’ release from prison. Individuals will need to have served two thirds of their sentence before being eligible.
The changes come after a knife attack in Streatham, London, in which a number of people were stabbed. The police and parole board were not able to prevent the automatic release of Sudesh Amman, the perpetrator of the attack.
When she was fifteen Shamina Begum slipped unimpeded out of the country to join ISIL. Only her image, walking with two school friends, was captured as she made her way through Gatwick Airport onto the aircraft. Her return to the UK, five years on is proving more difficult.
After the collapse of ISIL’s stronghold in Raqqa, Ms Begum appeared, heavily pregnant, in a camp in northern Syria, held by the Syrian Democratic Forces. In an interview she said she wanted to return but did not regret having gone to Syria.
On 19 February 2019, the Secretary of State, Mr Javid, informed Ms Begum’s family he considered she posed a threat to national security and issued an order depriving her of her nationality.
As was her right, Ms Begum issued an appeal against the deprivation order to the Special Immigration Appeals Commission (SIAC). Permission to enter the UK to pursue the appeal was refused by the Secretary of State.
In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,
These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.
The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.
On
Friday, the UK left the EU. In the midst of jubilation, despair, and relief,
questions remain about the human rights implications this decision may have, as
we continue to negotiate the precise terms of our exit. Clause 5 of the European
Union (Withdrawal) Act 2018 already confirmed that the EU Charter of
Fundamental Rights would not be included in ‘retained’ EU legislation after
Brexit. Now, the Conservatives may be able to move forward with their long-term
commitment to repeal the Human Rights Act 1998 and introduce a ‘British Bill of
Rights’. Boris Johnson’s manifesto promise was to ‘update’ the legislation, as
part of a programme of constitutional reform, looking at “the relationship between the government,
parliament and the courts.”
As the coronavirus continues to provoke anxiety,
China has come in for criticism for its handling of the epidemic, in the New York Times and on Human Rights Watch. After concealing new cases in Wuhan in early January, there has been
censorship of online posts about the epidemic, bans on speaking to the media
and journalists, and the government has been interrogating web users accused of
‘spreading rumours’ and ‘publishing and spreading untrue information
online’.
Stratas JA has said, “Administrative law matters”. Every individual’s life is affected, in some cases profoundly, by administrative decisions. Judicial oversight of administrative decisions engages questions of importance and sensitivity in democracies where separation of powers is an intrinsic principle. In the view of the Supreme Court of Canada, the act of judicial review by a court is a constitutional function that ensures executive power is exercised according to the rule of law. At the same time, review must be exercised without undermining the democratic legitimacy of the executive or the intention of the legislature. The standards applied by courts to determining the lawfulness of administrative decisions are therefore of central importance to the proper functioning of our country.
Disclaimer here, to apply to this and the next post. The views expressed here are purely in a personal capacity, as I am now counsel with the UK charity, Justice.
This and the following post will consider what a ‘reasonableness’ standard of review means in the contexts of Canadian and UK administrative law. The standard has recently been given new emphasis by the handing down of the judgment of the Supreme Court of Canada in Vavilov [2019] SCC 65 in which the court restated its conception of reasonableness and how a decision should be analysed in light of that standard.
In the UK, a series of cases has revealed that jurisdiction’s Supreme Court grappling with reasonableness primarily in its relationship with the other standard of review, proportionality. As this essay will show, both Canadian and UK courts have struggled ever since the advent of judicial oversight of administrative decisions to formulate a standard of reasonableness which ensures unlawful decisions do not stand but does not allow the court to remake the decision that is the proper remit of the administrator.
In AC (Algeria) v Secretary of State for the Home Department[2020] EWCA Civ 36, the Court of Appeal gave a trenchant warning that once it ceases to be lawful to detain an individual, the ‘grace period’ allowed within which to make arrangements for release can only be a short period. Moreover, the reasons for which any such grace period is required will be be closely scrutinised by the courts.
Background
Unsurprisingly, there continue to be a very significant number of judicial review and county court claims for unlawful detention brought by current and former immigration detainees. What is perhaps more interesting is that despite the relatively well-understood law governing the lawfulness of immigration detention the precise legal limits of the Home Secretary’s power to detain for immigration purposes continue to be tested and developed.
In the latest episode on Law Pod UK, Emma-Louise Fenelon talks to Shaheen Rahman QC about Samira Ahmed’s decisive Employment Tribunal victory, handed down on 10 January 2020.
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