The Weekly Round-Up: Freedom Day, Tokyo 2020 and the Judicial Review and Courts Bill

26 July 2021 by Byul Ryan-Im

In the news:

Monday was England’s so-called ‘Freedom Day’, with the final coronavirus restrictions lifted.  This means nightclubs can reopen; bars are no longer table service only; there are no more limits on attendee numbers at large events; and it is no longer mandatory to wear face coverings in public spaces, although the recommendation to do so remains. It also remains a legal obligation to self-isolate if contacted to do so by NHS Test and Trace, although it is not mandatory to download the NHS Covid-19 app, or to self-isolated if ‘pinged’ by it (i.e. alerted by the app to self-isolate).  NHS Test and Trace contacts people who have been named by a positive-testing person as a close contact and are legally obliged to self-isolate or face fines from £1000 for failing to comply.  By contrast, the Covid-19 app works by using Bluetooth to ‘ping’ people who may have come into close contact with a covid-positive person.  A resulting ‘pingdimic’ has led to concerns about keyworker staff shortages leading to a hospital understaffing and potential supermarket food shortages.  Frontline health workers can be exempt from self-isolation in exceptional circumstances, as can other keyworkers if their employers apply for and receive government authorisation specific to a named worker.  From August 16^th anyone who has had both vaccination doses will not need to self-isolate as a close contact.

Civil liberties organisation Liberty has expressed concerns that so-called “Freedom Day” is in fact “a moment of fear and division”.  The organisation has criticised the Government for its “divisive, coercive strategies”, among which it includes “vaccine passports and mandatory vaccinations”.  Vaccine passports in particular are condemned as “a step towards a two-tier society”.  Despite these concerns, the organisation also expresses a worry that lifting restrictions has “serious implications” for the rights of frontline workers and the clinically vulnerable”.

In other news:

On Wednesday, the government published its Judicial Review and Courts Bill following an Independent Review of Administrative Law and a government consultation.  The Bill seeks to “reform the rules around Judicial Review and facilitate a number of procedural improvements across the court system”.  One of the reforms proposed is to remove Cart Judicial Reviews, which are High Court reviews of an Upper Tribunal’s refusal to grant permission to appeal.  An “unprecedented” coalition of over 220 organisations, including Amnesty International UK, Greenpeace, Refugee Action and Stonewall, has criticised the Bill and proposed changes to the Human Rights Act.

On Friday the 2020 Summer Olympics began with an opening ceremony of dancers and acrobats performing to a near-empty stadium.  Outside, protesters clashed with Tokyo police as Japanese citizens showed their anger at the games continuing to be held amidst the fourth declaration of an official state of emergency in Japan due to the coronavirus pandemic.  In nine prefectures including Tokyo and Osaka, residents have been asked to go out for essential reasons only.  In the week the Games began Japan saw numbers of Covid-19 cases not seen since January.

On Saturday the first ever “Reclaim Pride” march took place in London, with thousands taking to the streets to demand inclusive LGBTI+ rights.  The event was organised amidst concerns that traditional Pride events (like London Pride, this year postponed to 11 September) are becoming less like protests and more like “over-commercialised parties”. 

In the Courts:

• Royal Mail Group Ltd v Efobi [2021] UKSC 33 – the Supreme Court unanimously dismissed an appeal from Mr Efobi, a postman for the Respondent, Royal Mail.  The Appellant’s claim in the employment tribunal for direct or indirect racial discrimination was dismissed but the decision was overturned on appeal to the EAT.  The Court of Appeal then reversed the decision in favour of Royal Mail and Mr Efobi was granted permission to appeal to the Supreme Court.  Efobi argued (i) that a change in the wording of equality legislation from “where … the complainant proves facts” to “if there are facts from which the court could decide” removed the burden on the claimant to prove anything at the first stage of employment discrimination cases, and (ii) that the EAT should have drawn adverse inferences from the absence of a potential witnesses for the Respondent Royal Mail.  The appeal was dismissed on the grounds that (i) the new wording simply clarifies that evidence from both parties must be considered, not only that of the claimant and (ii) tribunals are free to draw or decline to draw inferences using common sense.  Furthermore, even if adverse inferences were drawn, the recruiter’s knowledge of Mr Efobi’s race was by itself insufficient evidence of racial discrimination.
• Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131 –the Respondent had applied for British passports for three of her children (British citizens living in Country X) from Her Majesty’s Passport Office (HMPO), for which the Appellant is responsible.  HMPO refused the applications for lack of evidence of the consent of a person with parental responsibility under the law of Country X.  HMPO considered that person to be the children’s father alone.  It was unsafe or impossible for the mother to obtain the father’s consent, as he had been arrested following “months of extremely serious physical and psychological abuse including torture of me.”  A declaration signed by the father that he had no objection to his children travelling abroad with their mother was not accepted by HMPO as permission to grant British passports.  HMPO’s passport refusal was quashed in a judicial review claim because: (i) there was no evidence to conclude that the father had to consent under the law of Country X; (ii) HMPO failed to consider the application of Article 22 of the 1996 Hague Convention; and (iii) Article 22 did apply and HMPO was entitled to refuse to apply the law of Country X.  Article 22 allows the dis-application of an applicable law provision if it would be contrary to public policy, considering the best interests of the child.    The Court of Appeal upheld the quashing order and refused the Appellant’s argument that HMPO was not obliged to consider, and should not have considered, Article 22.  It also rejected the argument that HMPO should have asked the father alone for his consent, on the basis that the Country Profile for Country X suggested it allocates sole parental responsibility to the father.  The Country Profile was insufficient evidence to conclude in this specific case that the mother had no authority to apply for British passports.  Furthermore, upholding this law of Country X would be contrary to ECHR Articles 14 and 8, as it discriminates based on sex.  Accordingly, the appeal was dismissed and permission to appeal was refused.

• The High Court has ruled in McNally v Saunders that a retired solicitor’s ‘abrasive’ and ‘frequently puerile’ blog posts are entitled to the same level of protection as mainstream journalism. Chamberlain J struck out a harassment claim brought by a local government officer as having no reasonable prospect of success and has granted summary judgment for the defendant under CPR rule 24.2. The claim was brought under the Protection from Harassment Act 1997 by Dr Lisa McNally, MBC Sandwell’s director of public health and a mental health campaigner. McNally was the subject of five blog posts, criticising her decision to post a two-minute video about her own struggle with mental health and questioning her qualifications. She said the posts had caused her ‘crippling’ anxiety about attending meetings and made her worry about her ability to do her job. Given that Saunder’s posts’ were ’frequently puerile tone and style, a casual reader… might be surprised to discover that they are the work of a semi-retired former solicitor,’ the judge said. However ’none of these features disentitles them to the protections afforded by the law to journalistic expression.’ The public interest in McNally being able to continue in her role was outweighed by Saunders’ Article 10 right to free expression.

On the UKHRB:

• Gabrielle Dunn discusses the Supreme Court’s dismissal of a solitary confinement appeal
• Euan Lynch brings us part 3 of the Forstater case on freedom of speech and gender critical beliefs