Weekly Round up : March Madness

2 March 2020 by Rosalind English

In the news 

National concern about coronavirus rose further this week, as the tally of UK cases rose to 36. The government has said that it will publish an emergency ‘battle plan’ for tackling the virus, based on existing contingency plans for responding to a pandemic flu outbreak. This will include ministers responsible for coronavirus in each department, as well as a public information campaign run from the Cabinet Office; if the virus spreads further, it could also include banning big events, closing schools, and advising against use of public transport. When questioned yesterday on whether cities will be isolated, as in China, Health Secretary Matt Hancock was emphatic that no tactics are “off the table” in the government’s coronavirus strategy.  

The Johnson government is facing major setbacks elsewhere this week.  

The Home Office was a source of controversy, with the resignation of Sir Philip Rutnam as Permanent Undersecretary. Sir Philip raised allegations of “bullying, swearing, belittling people, making unreasonable and repeated demands” against Priti Patel, as well as accusing the Home Secretary of waging a “vicious, orchestrated” briefing campaign against him. Coming hard on the heels of the resignation of Sajid Javid, this could be a harbinger of a wider public breakdown of trust. Sir Philip says that he will be pursuing the government for constructive dismissal, so more details may come to light in proceedings in the employment tribunal. The Prime Minister has said publicly that the Home Secretary has his full support. 

The DWP was in the news too, over a serious failure of record-keeping. Following a freedom of information request, it was revealed that the Department has deleted all pre-2015 reviews into the suicides of individuals following adverse benefits decisions. The deletion decision had been justified on the basis of GDPR; the ICO has explained that the Department should have relied on a public interest exemption. 

Attorney-General Suella Braverman has agreed to provide corporate witnesses in the Grenfell Inquiry with immunity from prosecution for their evidence. It has been emphasised that this would not preclude a future criminal prosecution, but many have expressed concern at the decision. Counsel for the victims of the disaster, Michael Mansfield QC, stated that he considered it “abhorrent”. The Attorney-General has already faced criticism for her misinformed hostility to the judiciary, and her handling of this issue may contribute further to adverse public opinion. 

Finally, the government’s plans for a third runway at Heathrow took a hit as the Court of Appeal held that the government’s policy had not had regard to the UK’s obligations under the Paris Convention, and must therefore be reconsidered. The judgement is available here; it is discussed in more detail by David Hart QC on the blog here. 

As the debate over facial recognition technology continues, Metropolitan Police Commissioner Cressida Dick has called on the government to introduce an “enabling legislative framework” to provide the guidelines for the use of emerging technologies. This comes in the wake of the first usage of live facial recognition on the streets of the London, following Ed Bridges’ failed judicial review against the use of technology. The Commissioner considers criticisms of the technology to be inaccurate and ill-informed; her approach is pragmatic – “Give us the law, and we’ll work within it”. 

Elsewhere in the world of technology, Microsoft, IBM, and the Roman Catholic Church have announced a collaboration to work on the ethics of artificial intelligence. The ‘Rome Call for Ethics’ has laid out six key principles of ‘algor-ethical’ design – transparency, inclusion, responsibility, impartiality, reliability, and security/privacy. The parties urge ethical commitments from stakeholders, to ensure that technology be used to protect people, especially the ‘weak and underprivileged’, and also to improve education. Notably, the Rome Call envisions a ‘duty of explanation’: AI-based algorithms must be required to provide information explaining how they reached the decisions they did.  

In the courts                                      

This week saw a major new immigration precedent in the Supreme Court, on the relationship of decisions to deport and decisions to detain – R (oao DN (Rwanda)) v SSHD:

The applicant, a Rwandan national of Hutu ethnicity, had been granted refugee status in 2000 under the 1951 Refugee Convention. He was subsequently served with a deportation order in 2007 following certain criminal offences, pending a final decision on his refugee status. The Home Secretary decided that he should be deported pursuant to Article 33(2) of the Refugee Convention, as there were “reasonable grounds for regarding [him] as a danger to the security of the country”. This was based on the fact that he had committed a ‘particularly serious crime’, as defined under a 2004 order made by the Minister under s.72(4) NIAA 2002; this order was found in 2009 to be ultra vires. The applicant was ultimately detained for 242 days pending deportation; he then sought judicial review. 

The High Court and the Court of Appeal rejected the claim, on the basis of the 2012 case of Draga v SSHD, where the Court of Appeal had held that a flaw in the decision to make a deportation order did not affect the lawfulness of the decision to detain. In the Supreme Court, Lord Kerr rejected this principle, holding that Draga v SSHD was wrongly decided; the applicant was entitled to claim damages for false imprisonment. The force of the decision is pithily summarised by Lord Kerr at [25]: “The giving of notice of the decision to make a deportation order, the making of the deportation order, and the detention on foot of it are essential steps in the same transaction. The detention depends for its legality on the lawfulness of the deportation itself. Absent a lawful basis for the making of a deportation order, it is not possible to breathe legal life into the decision to detain.”

There were also two noteworthy cases on the protection of children: P (Abduction: Child’s Objections), R v: three children had been wrongfully removed from Germany to England by their mother; the court had granted a return order under the Hague Child Abduction Convention 1980, despite the fact that the eldest child, aged 13, objected to the return. This raised questions as to (i) whether the child should have been added to proceedings, and (ii) whether the child’s objection was sufficient to require the judge not to grant the return order. The Court of Appeal held that (i) the judge was right not to add the child to proceedings, as nothing sufficient to change the outcome would be gained; and (ii) the child’s objection did not justify refusing the order, in light of the further delay that would be caused, and concerns raised in a psychologist’s report on the child’s mental state.

I (Children: Child Assessment Order): this case related to the children of an ISIS promoter, who had been convicted under the Terrorism Act 2000. In particular, it raised the question of the court’s power, in these circumstances, to grant a child assessment order to a local authority under s.43 Children Act 1989, by which the local authority may assess possible harm to children, and measures that must accordingly be taken; the judge had refused to grant such an order, noting that the children’s behaviour was exemplary, and that the mother and older children all objected to the assessment order. The Court of Appeal overruled this decision, concluding that the judge could not reasonably have reached this decision on the facts before him. It was noted in particular that the family had not worked at all with the local authority, so the risk to the children of radicalisation was effectively unknown. 

On the UKHRB 

• Rosalind English reviews the issue of doctor/patient confidentiality in relation to genetic disease.
• David Hart QC explains the Court of Appeal’s decision on proposals to expand Heathrow airport.