10 cases that defined 2020

24 December 2020 by Jonathan Metzer

This time last year I wrote that 2019 had been “perhaps the most tumultuous period in British politics for decades”. Little did I know what 2020 would have in store.

The Covid-19 pandemic has caused loss, suffering and anxiety across not only the UK but almost all of the globe. At the UK Human Rights Blog, we feel deep gratitude to the doctors, nurses, carers and essential workers who have kept society going in what has been a deeply difficult year for so many of us.

In light of this, it is perhaps harder to summon the usual festive spirit that graces the approach of the holiday period — particularly as so many of us will be separated from our loved ones. And yet, perhaps it makes holding onto some spirit of joy all the more necessary.

Writing the article summing up the legal developments of the year is one of the highlights for me as commissioning editor of this blog. Let us embark together on a tour of what the courts had to say over the last 12 months. As ever, it has been a very interesting year.

1. The challenge to the Covid-19 lockdown

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

Well, we had better look at the major Covid-19 decision first.

The appellants (led by 1 Crown Office Row’s Philip Havers QC) challenged lockdown regulations made in response to the pandemic on 26 March 2020.

Their argument was that the Regulations imposed sweeping restrictions on civil liberties which were unprecedented and unlawful because: (i) the Government had no power under the legislation they used to make the Regulations; (ii) the Regulations were unlawful under ordinary public law principles; and (iii) the restrictions violated a number of rights under the European Convention on Human Rights (ECHR).

The High Court refused permission to apply for judicial review and the appellants appealed to the Court of Appeal. Although it was prepared to hear the case (despite the Government’s submission that it had become academic), the Court of Appeal dismissed the claim too.

First, it was held that the Government had the power to impose general and specific restrictions on the population and that the Civil Contingencies Act 2004 also provided for the making of emergency regulations if existing legislation could not be relied upon without risk of serious delay.

Secondly, the Court found that the Secretary of State had not unlawfully fettered his discretion, as at all times it has been possible for those who disagreed with the Government (including in Parliament and wider society) to make representations to invite it to ease restrictions. There were no grounds to argue that these had not been taken into account.

Finally, as to the human rights challenge, it was held that the restrictions were not incompatible with the right to liberty (as there was no deprivation of liberty on the facts), the right to private and family life (as there was no general principle that permission should be granted if it was arguable that there had been an interference with family life), the right to peaceful assembly (as the Regulations provided for a general defence of “reasonable excuse” to contraventions of the prohibition of gathering in public), the right to property (as there is a wide discretion afforded to the executive to balance this right against other considerations), or the right to education (as there was no order that schools had to close or education had to cease).

We covered the issues in a number of pieces, with the Court of Appeal’s decision explained here and the High Court’s decision here.

For the interested reader, there is also wider discussion arguing the case on the issues one way here, here and here and the other way here and here.

2. Shamima Begum

Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department [2020] EWCA Civ 918

Early last year, after ISIL was dislodged from Raqqah, Shamima Begum was discovered in a refugee camp in Syria. When she expressed a wish to return home to Bethnal Green, the Government wasn’t welcoming. She had left to join ISIL and she was considered a serious risk to national security. Her British citizenship was removed and she was barred from entering the UK.

In February, the Special Immigration Appeals Commission (SIAC) held that although in her current circumstances she could not play any meaningful part in her appeal against the decision to deprive her of citizenship, this did not mean that she should be allowed back into the UK to take an active part in the appeal.

However, in July the Court of Appeal held that fairness required that she be permitted to return to participate in the appeal. The Court held that as her appeal would not be fair or effective if she was not permitted to return, pressing on with the appeal would be “unthinkable” (and would compound the unfairness), and staying (pausing) the proceedings was also wrong, as it would render the decision effectively incapable of challenge and failed to take account of ongoing risks that she was suffering mistreatment.

Whilst the Court recognised the Government’s national security concerns, it was considered that these could be managed in the UK by way of e.g. arrest and remand in custody pending trial, or if that were not feasible, through a TPIM (Terrorist Prevention and Investigation Measure) restricting her movement, contacts and residence.

The case was then heard by the Supreme Court in November and judgment is awaited. Angus McCullough QC of 1 Crown Office Row is acting as her Special Advocate in the proceedings.

We covered the Court of Appeal’s decision here and the decision of SIAC here.

3. Vicarious Liability

Barclays Bank v. Various Claimants [2020] UKSC 13 and WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12

The boundaries of vicarious liability had been expanding in recent years, but in April a pair of decisions from the Supreme Court indicated that there may now be a retrenchment.

The Barclays case concerned Dr Bates, a self-employed practitioner who undertook unchaperoned medical examinations at his home and provided a medical report which was a prerequisite for each claimant to be employed by the bank. The claimants, represented by Lizanne Gumbel QC and Robert Kellar QC of 1 Crown Office Row, sued Barclays for damages for a very large number of sexual assaults allegedly committed by Dr Bates.

In the Morrisons case, an employee, Andrew Skelton, became very disaffected after being disciplined for minor misconduct and in response waged a criminal campaign of vengeance against his employer, sending workforce payroll data to the newspapers. The claimants were some of the affected employees and they brought proceedings against Morrisons for damages.

Although the claimants had succeeded in both cases in the Court of Appeal, the Supreme Court held that:

1. As Dr Bates was not at any time an employee of the Bank, was paid a fee for each report (rather than a retainer), was free to refuse to do an examination and was in business on his own, he was not an employee and nor was he close to being an employee of the Bank. Therefore, Barclays was not vicariously liable.
2. The necessary ‘close connection’ to the work that Mr Skelton had been employed to do did not exist. Just because his job gave him the opportunity to commit these acts, this was not enough. His conduct, done for highly personal reasons, was outside the scope of his employment: in common parlance, he went off on a ‘frolic of his own’.

However, some commentators argue that these decisions raise new questions about how the legal principles should be applied. We covered the decisions here and here and also published an extended discussion of the issues here.

4. What is a ‘mother’, in law? Court of Appeal has its say

R (McConnell and YY) v Registrar General [2020] EWCA Civ 559

In May, the Court of Appeal revisited the tension between the wish of a transgender person to have their legal gender recognised on their child’s birth certificate and the right of the child to discover the identity of their biological mother.

Alfred McConnell is legally recognised as male, as confirmed by a Gender Recognition Certificate issued in April 2017. Subsequent to his recognition as male, he became pregnant through inter-uterine insemination using donor sperm and gave birth to child YY. When he came to register the birth, the Registrar General determined that Mr McConnell would have to be registered as YY’s “mother”. This was challenged on the basis of statutory interpretation and the ECHR (particularly the right to private life, with the prohibition on discrimination also being relied on at first instance).

However, the Court ruled that as the person who gave birth to the child, the appellant must be registered as the “mother” on the child’s birth certificate, even thought he was a transgender male. It was held that this was not a breach of Article 8.

We covered the decisions of the Court of Appeal here and the High Court here. The case is also discussed on LawPod UK here.

We also published a two-part analysis proposing changes to the law in light of this case here and here, and a discussion of the related decision that the lack of a gender-neutral option on a passport is not a breach of rights here.

5. Twitter, trans rights and the role of the police

R (Miller) v The College of Policing & The Chief Constable of Humberside [2020] EWHC 225 (Admin)

In February, the Administrative Court considered the case of a claimant who tweets extensively on the issue of trans rights. Although he describes himself as “gender critical”, his tweets are considered by many to be derogatory and transphobic.

Humberside Police decided to record an incident as a non-criminal hate incident and a plain clothes constable attended the claimant’s work to speak to him, and in a phone call that resulted, warned the claimant that if he ‘escalated’ matters, the police might take criminal action. No explanation of what escalation meant was given.

The High Court held that while the mere recording of a hate incident did not interfere with the claimant’s rights, the police had gone further. In going to his workplace to speak to him and warning him about the risk of criminal prosecution, this could deter him from expressing himself on transgender issues, constituting a disproportionate and unlawful interference with his right to freedom of expression.

We covered this case here, in an analysis which discusses in detail many of the difficult issues in play.

6. ‘One of the most controversial questions which the law of human rights can generate’

AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17

So said Lord Wilson, giving a landmark judgment which changed the law, expanding the circumstances in which a person may resist being removed or deported from the UK on medical grounds.

The appellant is a 33-year old man from Zimbabwe who has resided in the UK since 2000 but was subsequently placed under a deportation order for serious criminal offending, including a 9 year prison sentence for possession of a firearm and possession of heroin with intent to supply.

However, he has also been HIV positive since 2003. Whilst this condition is being kept under control through antiretroviral medication available in the UK, he argued that it is doubtful whether he would be able to access the necessary drugs in Zimbabwe there, leaving him prey to opportunistic infections which could lead to his death. It is contended that deporting him would constitute a breach of the prohibition on inhuman and degrading treatment under Article 3 ECHR.

The Supreme Court held that the proper approach to Article 3 was modified by the European Court of Human Rights in Paposhvili v Belgium [2017] Imm AR 867. The relevant test now is whether removal would give rise to a real risk of a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering, or to a substantial reduction in life expectancy. This does not require that death be imminent.

The case was remitted back to the Upper Tribunal for a panel which would hopefully include the President to consider whether the anticipated further evidence in this case met this test.

We covered the Supreme Court’s decision here and the decision of the Court of Appeal here.

7. Can the Government provide evidence that will facilitate the death penalty being imposed?

Elgizouli v Secretary of State for the Home Department [2020] UKSC 10

The Divisional Court had said ‘yes’. But in March, the Supreme Court said ‘no’.

Shafee El Sheikh is alleged to have been part of a British group of ISIL terrorists (the so-called “Beatles”), suspected of murdering British and American citizens in Syria. El Sheikh and another suspected terrorist were captured in January 2018. After the Crown Prosecution Service determined that it had insufficient evidence to prosecute them, the US decided to bring criminal proceedings.

As it usually would in a case such as this, the UK Government requested an assurance from the US Attorney General that information provided by the UK to assist the investigation would not be used in a prosecution that could lead to the imposition of the death penalty. But on this occasion the US refused to provide a assurance. The Home Secretary then decided that because this was a “unique” and “unprecedented” case, it was in the UK’s national security interests to accede to the request nonetheless.

Although the Divisional Court dismissed the challenge to this decision, the Supreme Court held that although there was no established common law principle which prohibited the sharing of information in a case such as this, the relevant requirements for transfer of personal data as set out in the Data Protection Act 2018 had been breached.

Lord Kerr, who passed away at the start of this month (see obituaries here and here), dissented: he would have gone further and held that there was a common law principle against the facilitation of the death penalty. In his view, this was the “natural and inevitable extension” of the prohibition of extradition or deportation without death penalty assurances.

(We covered another important dissent by Lord Kerr in a different case which has led in that case to a change in the law here.)

Following the Supreme Court’s decision, the US Attorney General, William Barr, announced that the death penalty would not be sought. The High Court then permitted the UK to provide the relevant information to the US authorities.

We covered the Supreme Court’s decision in detail here.

8. Costs of commercial surrogacy arrangements abroad

Whittington Hospital NHS Trust v XX [2020] UKSC 14

On the same day as the decisions in Barclays and Morrisons, the Supreme Court also held that a defendant hospital trust liable in damages for clinical negligence must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.

As a result of admitted negligence, the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her. Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant wished to enter into a commercial surrogacy arrangement in the USA (as it is not permitted here) and she sought the cost of doing so in damages.

At first instance it was held that the Court of Appeal’s decision in Briody v St Helen’s and Knowsley AHA (Damages and Cost) [2001] EWCA 1010 was binding to the effect that this could not be claimed as it was contrary to public policy.

However, the Court of Appeal overturned this decision and found for the claimant. By a 3-2 majority, the Supreme Court upheld this decision.

Lady Hale, for the majority, revisited her own decision in Briody almost 20 years before. She emphasised the restitutionary purpose of damages in tort and held that there had been significant developments since the previous decision, including the increased role of third parties in surrogacy arrangements, developing social attitudes to surrogacy, changing views as to the definition of what constitutes a family and advances in techniques of assisted reproduction. She held that the Briody decision was “probably wrong then and is certainly wrong now”. The claimant was entitled to recovery the costs of commercial surrogacy in full.

We covered the decision here (including discussion of both the majority and dissenting views) and on LawPod UK here.

9. Suicide and unlawful killing at inquests

R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46

Last month, the Supreme Court gave judgment on the question of the standard of proof to be applied at an inquest where the death might have been caused by suicide or unlawful killing.

Traditionally, in order to be satisfied that either conclusion should be returned the criminal standard of proof was required. However, that all changed with the judgment of the Divisional Court and then the Court of Appeal in this case. This longstanding practice was held to be devoid of a sound legal basis. Given that the inquest was not itself a criminal proceeding, it was decided that the civil standard ought to be applied to both conclusions.

The Supreme Court has now confirmed that that is right, by a majority of 3 to 2. The relevant Note in the Coroner’s Rules that suggested to the contrary was held to be not a specification of a standard of proof, but instead a reflection of what was then (incorrectly) understood to be the legal position.

The result is that all forms of conclusion in the Coroner’s Court, whether narrative or short form, are to be rendered on the balance of probabilities.

We explained in detail the decisions of the Supreme Court and the Divisional Court here and here.

10. The proposed third runway at Heathrow

R (Friends of the Earth et al) v Heathrow Airport Ltd [2020] UKSC 52

And finally, only last week the Supreme Court reversed a decision of the Court of Appeal and held that the Government policy on airport expansion at Heathrow was not unlawful on climate change grounds.

The policy decision under challenge was an Airports National Policy Statement (ANPS) made in 2018, which set out the decision-making framework within which further planning decisions on airport expansion would be taken.

In February, the Court of Appeal agreed with the claimants that the Government had failed to take into account the Paris Agreement on Climate Change, which was ratified by the UK in November 2016. This international Agreement commits parties to restrict temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.

The Government had decided not to appeal (perhaps signalling a change in policy), but the case was continued by Heathrow Airport. This led David Hart QC to characterise the appeal in his article as ‘Hamlet without the Prince’.

I do not know whether Heathrow Airport is Horatio, the Ghost or Ophelia (!) but regardless the Supreme Court upheld its appeal. Even though the Paris Agreement was not mentioned in the ANPS, it was held to have been properly considered in the background behind this framework document. Says David Hart QC:

the difference between the CA and the SC turned on their assessment of the rather opaque documents … The CA smelt a rat … The SC read things differently: even though Paris was not mentioned in the ANPS, it lurked there.

We covered the Supreme Court’s decision here and the decision of the Court of Appeal here.

This year, for the first time in five years, the UKHR Blog received over a million views: the second largest number in our history. We are very grateful for your continued interest and support.

I hope you have an enjoyable and restful break and that the coming months bring success for the Covid-19 vaccines and a much happier 2021.

Jonathan Metzer