30 December 2021
In Episode 155 Emma-Louise Fenelon speaks to Nazir Afzal OBE about his book The Prosecutor.
His book can be bought here
Nazir’s podcast is available here
You can read more about his career here
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27 December 2021
This was an application for permission to challenge to the Managed Hotel Quarantine (MHQ) scheme. MHQ was put into place under Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.
The claimants contended that the scheme violated the Article 5 ECHR rights of those who were subjected to it. A particular focus of the proposed claim for judicial review was to identify the category of travellers who came to (or back to) England from Red List countries into the MHQ scheme, and who were required to remain within the scheme, notwithstanding that they could demonstrate that they had been vaccinated.
27 December 2021
In the news:
From 26 December new Covid rules came into effect in Scotland, Northern Ireland and Wales. All three nations have limited the size of public events and face coverings are compulsory in most indoor public spaces. Covid passports or proof of a negative test result is required at many venues. Nightclubs will close in Wales and Scotland from 27 December and in Northern Ireland from 26 December. People in Scotland are also advised to limit social contact to two other households and in Wales social distancing of 2 metres is required in all public and work spaces.
The only change to the current Covid guidance for England is the reduction of Covid self-isolation time from 10 to seven days, provided people have two negative test results. Face masks remain compulsory in most indoor public venues and a Covid passport or negative test result is required for nightclubs and some other venues.
In other news:
22 December 2021
And so we come to the end of another year. The Covid-19 pandemic has continued to dominate the news, particularly with the very concerning surge of the Omicron variant this month. Many reading this will be separated from loved ones over Christmas. The year has also seen the return to power of the Taliban in Afghanistan after the US withdrawal at the end of August, the resumption of military rule in Myanmar and the ongoing persecution of the Uyghurs by the Chinese government, this year recognised by the House of Commons and the US government (as well as many other bodies and organisations) as constituting a genocide. So, one could say that this year has rivalled last year for infamy.
And yet, any year contains light as well as darkness. Also in 2021, researchers at Brown University successfully transmitted brain signals wirelessly to a computer for the first time (hopefully a breakthrough in treatment for paralyzed people), 124,000 new trees were planted in Sumatra as part of reforestation efforts, the WHO gave approval for widespread use of a groundbreaking malaria vaccine and almost nine billion Covid vaccinations have so far been administered worldwide since the first dose given in the UK 12 months ago, for a virus which only arrived 12 months before that.
But what, I hear you ask, about the law? As always, this year has been packed with fascinating and important legal developments — many of which you may have caught, but some of which may have passed under the radar. And so, please refresh your glass (or mug) and join me on another adventure as we review the 10 cases that defined 2021.
20 December 2021
On Tuesday, the Ministry of Justice published its full consultation (the ‘Consultation’) on Human Rights Act (the ‘Act’) reform. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights. The 123-page Consultation follows the Independent Human Rights Act Review (‘IHRAR’), which reported to the government in late October, and was published on the government website on the same day as the Consultation.
The Consultation runs through the government’s now familiar issues with the Act, putting significant weight on cherry picked human rights cases which it is eager to summarise in its own words. For instance, R (Ellis) v Chief Constable of the Essex Police 7 [2003] EWHC 1321 (Admin), [2003] 2 FLR 566 is cited in the Consultation as an example of the application of the Act going ‘too far’. The Consultation presents the issue in the case, of Essex police publicising photographs of convicted offenders in train stations, as one that should clearly be beyond the remit of the Act. It makes no mention of the children and relatives of the offenders whose interests were balanced with the interests of the public in naming and shaming offenders in the hopes of deterring further crime (in the end, the scheme was permitted to continue).
20 December 2021
Savran v. Denmark (Application number 57467/15), 7 December 2021
The Grand Chamber of the European Court of Human Rights (“ECtHR”) has held that the risks to the applicant’s psychiatric health posed by his expulsion to Turkey did not reach the threshold for the application of Article 3.
The decision demonstrates the extremely high evidential threshold which applicants bringing such complaints will have to meet in order to establish that there are “substantial grounds” for believing that there is a real risk of a violation of Article 3, i.e., to pass the first stage of the Article 3 analysis articulated in the ECtHR’s case law.
For a detailed review of the Article 3 case law preceding this decision, see the two part analysis here and here and a further extended look on the UKHRB.
15 December 2021
In this week’s episode of Law Pod UK Rosalind English reports from the UK Bar Council’s 19th Annual Law Reform Lecture, exploring the role of law reform in the context of climate change. You will hear excerpts from the speeches given by Inger Andersen, Under-Secretary-General of the UN and Executive Director of the UN Environment Programme, and Lord Carnwath of Notting Hill, a former UK Supreme Court judge.
The Paris Agreement of 2015 (United Nations)
References made in Lord Carnwath’s address are to the following cases:
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)
State of the Netherlands v. Urgenda Foundation (Dutch: De Staat Der Nederlanden v. Stichting Urgenda), Supreme Court of the Netherlands, 20 December 2019 (unofficial translation here)
Juliana, et al. v. United States of America, et al., 947 F.3d 1159 (9th Cir. 2020)
Future Generations vs. Ministry of Environment and Others, Supreme Court of Coloumbia, 5 April 2018
Milieudefensie et al. v. Royal Dutch Shell plc (26 May 20212. This ongoing claim is based on the Urgenda decision, which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens).
Full written speeches are available on the Bar Council’s website.
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14 December 2021
The Special Advocates have responded to the Government’s submission to the statutory Review of closed proceedings being conducted by Sir Duncan Ouseley — but HMG’s submission remains unpublished.
The delayed statutory review into closed proceedings under the Justice and Security Act 2013 (JSA) is reaching its conclusion. According to the Government’s website, it is estimated that the report “should be laid before Parliament early in 2022”.
A very brief recap:
What of the Government’s submission to the Review? In publishing our paper for the Review, in the interests of openness and promoting public debate, the SAs had expressed the hope that HMG’s response (and that of any other Government bodies or agencies) would do likewise:
In a corresponding spirit of transparency, it is hoped that any submissions to this review on behalf of Government bodies or agencies will be published in full, and so made available for wider review and comment. [para 5 of SAs’ submission of 8.6.21]
That has not been done. What did happen was that on 29 July 2021 the SAs were sent the Government’s Response by the Reviewer (not HMG) and told that this response was shared in confidence, and was not for onward transmission.
13 December 2021
In Government of the United States v Julian Assange [2021] EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the ruling of Westminster Magistrates’ Court, thereby permitting the extradition of the WikiLeaks founder to the US where he faces criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.
The High Court held that diplomatic assurances given by the US government regarding Assange’s prospective detention conditions were sufficient to quash the original basis upon which his extradition was initially discharged, namely that his mental condition was such that it would be “oppressive” to extradite him, per s.91 Extradition Act 2003.
9 December 2021
For all the aspiring barristers interested in Clinical Negligence, Public Law, Professional Discipline, Inquests, Public Inquiries, Environment, Tax and more, 1 Crown Office Row are holding an online talk with their barristers. They will give tips for pupillage applications, life as both a pupil and junior tenant as well as talk more about practice areas and chambers culture.
Interested to learn more? Want to book you place? Details below:
When: 5pm, Wednesday 19th January 2022
Where: via Teams
Free Ticket: Register via Eventbrite
Don’t forget to listen to our podcast Law Pod UK or visit our Quarterly Medical Law Review (QMLR) for the latest medical law updates.
7 December 2021
White v General Medical Council [2021] EWHC 3286 (Admin) (03 December 2021)
A case in which the High Court reminds the regulator of requirements for imposing curbs on free speech.
Dr Samuel White is a GP. Earlier this year he posted a seven minute video on Instagram explaining that he had resigned from his job because, he said, he could no longer stomach the lies surrounding the NHS approach to the pandemic and because medical professionals were having their hands tied behind their backs in treating patients. He stated that he was being prevented from using treatments that had been established as being effective both as prophylaxis and treatment for Covid-19, naming hydroxychloroquine, budesonide inhalers and ivermectin, which he described as safe and proven. He raised concerns about the safety of the Covid-19 vaccine and claimed that 99% of people who contract the virus survive, with the only fatalities in those with multiple medical problems. He stated that masks do absolutely nothing. He invited his viewers to do their own research, but referred to a number of websites which supported his view.
A complaint was made to the General Medical Council, which commenced an investigation into his fitness to practise as a doctor. The GMC referred his case to an Interim Orders Tribunal on the basis that his practise should be restricted pending investigation and the conclusion of the case. The role of an IOT is not to find facts, but to conduct a risk assessment based on the information before them and determine whether an interim order is necessary to protect patients or otherwise in the public interest.
This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
| Commissioning Editors: | Darragh Coffey Jasper Gold | |
|---|---|---|
| Editorial Team: |
Rosalind English Angus McCullough KC David Hart KC Martin Downs Jim Duffy Jonathan Metzer |
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