The Weekly Round-Up: “Freedom Day” delayed

15 June 2021 by Alethea Redfern

In the News:

The Prime Minister’s recent decision to delay plans to lift coronavirus restrictions by a month has been met with criticism among some legal commentators. The removal of restrictions is now due to take place on 19 July, instead of 21 June. The new deadline was described by the PM as a “terminus date” after which we must “learn to live with Covid”.

In his announcement, the Prime Minister cited the spread of the highly transmissible Delta variant, which now accounts for more than 90% of cases in the UK, and promised to use the extra time to accelerate the vaccination programme. New analysis by Public Health England shows for the first time that two doses are highly effective against hospitalisation from the variant. More than half of UK adults have had their second jab, including 91% of people over 50, and people as young as 18 will be invited to book a jab from the end of the week.

Former Supreme Court Justice Lord Sumption, a prominent critic of the government’s lockdown measures, called the continued lockdown “wicked” and raised the “extreme example” of “Nazi race laws” in arguing that there was no moral obligation to comply with certain laws. In response, barrister Adam Wagner quipped that Lord Sumption’s comments represented “the best case for his own argument that judges should not get involved in politics.”

Elsewhere, however, Wagner acknowledged that the courts have been reluctant to intervene with Covid restrictions, but suggested that at this stage a legal challenge to a refusal to allow a business such as a nightclub to open to double vaccinated customers might be effective. Wagner suggested that “the continued closure of a small number of businesses when the balancing factors have radically changed due to vaccination” might engage Article 1 of protocol 1 of the European Convention on Human Rights, which requires any interference with the ‘peaceful enjoyment of property’ to be proportionate. The delay is predicted to cost UK hospitality £3bn in lost sales and have a “critical impact on struggling businesses.

The announcement was widely anticipated and the public response has been understated. However, it remains to be seen whether the midsummer “terminus date” will truly put lockdowns behind us once we enter the darker, colder months of this pandemic’s second year.

In Other News:

• Despite heightened public attention to sexual assault and harassment as a result of Sarah Everard’s murder, the new Labour crime commissioner for West Midlands police, England’s second biggest force, has warned that rape trials will be the hardest hit by the growing backlog in the justice system. There are nearly 58,000 outstanding crown court cases and more than 450,000 magistrates court cases in the system. In a recent speech to the Law Society, the Lord Chancellor, Robert Buckland, emphasised that his priority was “those who have been a victim of crime”, and outlined plans to recover the legal system from COVID-19.
• Statistics published last week have revealed that the number of applications for judicial review fell 16% in 2020. The statistics might encourage academics, lawyers and former judges who have expressed concerns over the government’s proposed reform of judicial review, which, according to the Queen’s Speech in May, would serve to “restore the balance of power between the executive, legislature and the courts.”
• The High Court has ruled that Michael Gove broke the law in awarding a contract to his associates at Public First. The Court agreed with the Good Law Project’s argument that a reasonable observer would think there was a real risk Public First won the contract because of favouritism. It therefore gave rise to apparent bias and was unlawful.
• On the four year anniversary of the Grenfell Tower fire, which claimed 72 lives in the early hours of 14 June 2017, a critical assessment of politicians’ progress towards delivering pledges made in the aftermath has been published. Promised improvements to building safety regulations, social housing reform and the implementation of recommendations made by the Grenfell Tower Inquiry had not been actioned.
• The Home Office, which has come under particular scrutiny during the pandemic, was condemned by a number of human rights organisation for introducing 24-hour GPS monitoring of people on immigration bail. Critics argue that the move would effectively grant the Home Office new surveillance powers extending well beyond their stated purpose; a Home Office spokesperson responded that GPS tracking is widely used in the criminal justice system, and “we make no apology for keeping the public safe and clamping down on those who have no right to be in the UK.”  

In the Courts:

• Forstater v CGD Europe & Ors (Religion or Belief Discrimination) [2021] UKEAT: while acknowledging that “some trans persons will be disappointed by this judgment”, the Employment Appeal Tribunal held that a claimant who held gender-critical beliefs, including that sex is immutable and not to be conflated with gender identity, had been discriminated against when her views came to light and her visiting fellowship was not renewed. At first instance, the Tribunal held that the claimant’s belief did not fall within the meaning of s.10 of the Equality Act 2010 because it was “not worthy of respect in a democratic society”. Allowing appeal, the EAT held that in order for a belief to be excluded on this basis, it would have to be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights (ECHR) by virtue of Article 17 thereof. The claimant’s views did not fall into this category. However, the EAT emphasised the protections owed to trans persons by their employers, and stressed that it had not expressed any view on the merits of either side of the transgender debate.
• P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam) (14 June 2021): the High Court (Family Division) refused an application by a 21 month old boy’s birth mother for him to be circumcised, in accordance with the custom of his biological parents’ Muslim faith and contrary to the wishes of his non-Muslim Special Guardians. Counsel for the boy’s mother contended that Article 9 of the ECHR was engaged (Freedom of Thought, Conscience and Religion). Mr Justice Cobb observed that this right included a freedom to “change his religion or belief and freedom”. Mr Justice Cobb accepted that the issue was “finely balanced”, but concluded that the decision to circumcise the boy should be deferred until he was able to make his own choice in the matter.  
• Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2021] EWHC 1535: in the High Court (Administrative Court), Mr Justice Mostyn made an order quashing the decision made by the defendant Secretary of State refusing the claimant’s application under the EU Settlement Scheme as a ‘person with a Zambrano right to reside’ due to their limited leave to remain. The Secretary of State had erred in law in considering limited leave to be a Zambrano extinguishing factor; indefinite leave, and nothing less, would debar an application from being made. It was “troubling, to say the least”, that the Home Office had published guidance “requiring staff to ignore the clear terms of [Regulation 16 of the Immigration (European Economic Area) Regulations 2016], and therefore to act unlawfully.”

On the UKHRB:

• In the latest episode of Law Pod UK, Emma-Louise Fenelon speaks to Bill Browder, justice activist, about the death of lawyer Sergei Magnitsky in pre-trial detention in Russia after uncovering and exposing a $230m tax fraud.
• Dominic Ruck Keene sets out a recent High Court decision that a council was not liable for its ‘failure to remove’ the claimants from their abusive family home.  
• Charlotte Gilmartin summarises the Grand Chamber of Human Right’s finding that certain aspects of the UK’s regime governing bulk interception of communications were contrary to Articles 8 and 10 of the Convention.
• Rosalind English explains a High Court decision to withdraw life-sustaining medical treatment from an infant born with catastrophic brain injury, whose parents objected based on their Chassidic Judaic faith.
• Harry Sanders highlights the unfolding, underreported humanitarian crisis in the Tigray region of northern Ethiopia.
• Rosalind English summarises a detailed German judgment which examines what the government actually knew and should have known about the  situation prevailing when lockdown was imposed in March 2020.