The Weekly Round-Up: Tension Over Begum and Procurement
24 November 2020
In the News:
There is a long history of crossover between lawyers and politicians; more members of parliament come from the law than almost any other profession. But the relationship – never totally tranquil – has become more strained in recent years.
Key flashpoints have included:
- the Miller cases, and associated extra-judicial wrangling between Lady Hale and Lord Sumption;
- a top immigration judge’s strongly-worded response to home office pressure to stop releasing immigration detainees during the COVID-19 crisis; and
- Boris Johnson and Priti Patel’s recent swipes at “lefty human rights lawyers” who just won’t let the government get on with fixing our “broken” immigration appeal system.
As a 15-year-old, Begum ran away to join the Islamic State in Syria. She married a Dutch fighter and gave birth to three children, none of whom survived. On 19 February 2019, the Home Secretary deprived Begum of her British citizenship, on the basis that Begum’s return would present a risk to national security.
The Home Secretary now appeals the Court of Appeal’s decision to grant Begum leave to enter the UK in order to challenge the original decision. Her lawyers say Begum is prepared to face justice, but cannot defend herself from the dangerous refugee camp in northern Syria in which she now lives.
The court will consider:
- whether Begum should be allowed to enter the UK so she can appeal against the deprivation decision;
- whether judicial review principles applied to Begum’s appeal against the deprivation decision; and
- if she is not allowed to enter the UK, should Begum’s appeal against the deprivation decision be allowed?
Although the case centres on Begum, it pits the right to a fair trial directly against national security. Earlier today, Sir James Eadie QC, for the Home Office, told the court that M15 assessments had gauged that Begum continues to pose “a real and current [security] threat.” Lord Pannick QC, representing Begum, argued that allowing Begum’s return was “the only means to ensure procedural fairness.” Referencing the Universal Declaration of Human Rights, Pannick also said that stripping Begum of her nationality denied her “nothing less than the right to have rights.”
The case is underway; its outcome as yet unknown. It has the potential to dismay immigration lawyers, or to draw ire from Patel and others who see Begum as an unconscionable threat – and our most senior judges as “Enemies of the People”.
In Other News:
- Calls for a public inquiry into the government’s procurement policy during the COVID-19 crisis are becoming louder and more bitter after a National Audit Office report said the Cabinet Office has failed to explain why companies with government connections and shoddy track records were chosen to provide crucial services during the pandemic, or why contracts worth £17.3bn were agreed without a competitive tender. Find a breakdown of the report here. The Good Law Project, headed up by Jolyon Maugham QC, has been granted permission to seek judicial review of the government’s persistent failure to disclose details of COVID-related contracts.
- In an open letter to Boris Johnson, the Medical Protection Society (MPS) has called on the government to prevent criminal or disciplinary action being taken against doctors forced to choose which patients to treat during the pandemic.
In the Courts:
- Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work and Pensions  EWHC 3118 (Admin): two claimant insurers with lots of long-tail employer’s liability insurance on their books were partly successful in their judicial review of the defendant’s application of the Social Security (Recovery of Benefits) Act 1997. The contentious provisions of the Act imposed an unintended and increasingly onerous obligation on a dwindling number of long-tail insurers to pay out large sums in relation to asbestos cases. Mr Justice Henshaw concluded that, to the extent the Act required payments which failed to correspond to the insured employee’s real contribution to the injury, it failed to strike a fair balance between the rights of the state and those of the claimant insurers. It was incompatible with their right to peaceful enjoyment of their property under Article 1 Protocol 1 of the ECHR.
The Administrative Court also considered three extradition appeals:
- Jess v High Court, Ireland  EWHC 3134 (Admin): Mr Justice Swift dismissed an appeal against an extradition order to the Republic of Ireland in respect of an allegation of attempted robbery. The appellant’s evidence that extradition would be “oppressive or unjust” due to a traumatic brain injury suffered in 2018 was “not strong”, and therefore section 25 of the Extradition Act 2003 did not apply. In addition, the court was not convinced that the order breached the appellant’s right to a private or family life under article 8 ECHR.
- Farookh v Judge of the Saarbrucken Regional Court (Germany)  EWHC 3143 (Admin): the 21-year-old appellant, wanted for extradition to Germany in relation to several violent offences, was successful. Mr Justice Fordham emphasised that, given the nature of appellant’s alleged offending and the strong public interest in his facing justice in Germany, the case succeeded on section 25 and article 8 grounds “all, and only, [because of] the risk of suicide.”
- Antochi v Richterin Am Amstegericht of the Amstgericht Munchen (Munich), Germany  EWHC 3092 (Admin): Mr Justice Fordham allowed an appeal by a mother wanted for extradition to Germany for a “reasonably serious” series of fraudulent cashpoint withdrawals and so-called ‘distraction thefts,’ some involving elderly women. The appeal succeeded on all three grounds:
- applying the special proportionality test in section 21A(1)(b) of the Extradition Act, extradition of the appellant for what would likely be a non-custodial offence was disproportionate;
- under section 14, extradition would be “unjust and oppressive … by reason of the passage of time” since the alleged offence in 2009. During that period, the appellant settled in the UK and had a daughter from whom separation would be “anguish” worsened by Brexit uncertainty;
- removing a four year old child’s primary caregiver would disproportionately interfere with both child and mother’s article 8 rights.
On the UKHRB: