2021 Reviewed

22 December 2021 by Jonathan Metzer

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.

1. Shamima Begum: Supreme Court has the final say

Special Immigration Appeals Commission and Secretary of State for the Home Department v R (Begum) [2021] UKSC 7

After being listed last year and the year before, Shamima Begum’s case once again helped to define this year, demonstrating a staying power in the charts rivalled only, perhaps, by a certain popular band in the 1960s. But let’s stop there — we need no more analogies between adherents / former adherents to Islamic State and a band from Merseyside.

At the end of February, the Supreme Court reversed the decision of the Court of Appeal and held that the Home Secretary was entitled to refuse her entry to the UK to pursue her appeal against the loss of citizenship. It was considered that the court below had “misunderstood” the role of the Special Immigration Appeals Commission (SIAC) and impermissibly rejected the Government’s assessment of the security risk posed by her return. In view of the evidence was that Ms Begum could not properly fight her appeal from abroad under the present circumstances, the appeal has been stayed pending some change in circumstances which might enable her to participate in a hearing from outside the UK.

The decision was welcomed by both the current and then-Home Secretary and would seem to reflect public opinion on the matter, but concern has also been expressed in some quarters regarding the increased use of deprivation of citizenship in relation to dual nationals, which has increased significantly in the last few years.

We covered the Supreme Court’s decision on the blog here. We also covered the decisions of the Court of Appeal and SIAC here and here.

2. The puberty blockers case

Bell and A v Tavistock and Portman NHS Trust and others [2021] EWCA Civ 1363

In what was not the only major case this year concerning issues relating to gender, in September the Court of Appeal decided a case brought by a former patient of the Tavistock Clinic who was prescribed puberty blockers at 16 to delay the onset of female sexual characteristics, then transitioned to a male using cross-sex hormones and had a double mastectomy, but then terminated the treatment and regretted having embarked on it.

The Divisional Court (decision discussed on this blog here), had issued a declaration and guidance in relation to the circumstances in which a person under the age of 18 could consent to treatment to delay the onset of sexual characteristics where they presented with gender dysphoria.

However, the Court of Appeal (including the Lord Chief Justice and the Master of the Rolls) overturned this decision. It was held that where the underlying claim had been dismissed it was not permissible for the court then to issue guidance on the point, and that the Divisional Court had also imposed an “improper restriction” on the test of competence to give consent by departing from the principle that children under 16 could make their own decisions if assessed as competent by their treating clinicians. As explained on the blog, it held that judicial review was not the right forum to resolve contested issues of fact, causation and clinical judgment:

In essence, the Court of Appeal found that the judges below had stepped into the shoes of clinicians: it is “for doctors to decide on competence not judges”. 

As discussed in detail in the article, it is therefore likely that issues relating to the use of puberty blockers may be resolved in different forums in due course.

3. Julian Assange extradition

Government of the United States v Julian Assange [2021] EWHC 3313 (Admin)

This month, the Divisional Court allowed the appeal brought by the United States of America against the ruling of Westminster Magistrates’ Court preventing the extradition of the WikiLeaks founder to face criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.

After 2,487 days in the Ecuadorian embassy in London, Julian Assange was arrested in 2019 after the Ecuadorian authorities revoked his political asylum. The US Government sought his extradition from the UK, but a district judge discharged the request on the basis that the expert evidence indicated that there was a substantial risk that he would commit suicide, in view of a real risk that he would be subject to restrictive special administrative measures and, if convicted, be held at the Administrative Maximum Security prison in Florence, Colorado.

However, following this ruling the US Government provided diplomatic assurances to the UK regarding Mr Assange’s prospective detention conditions. These, it was held, 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 of the Extradition Act 2003). This case is therefore to be remitted to the Westminster Magistrates’ Court, but with a direction to send the case to the Secretary of State, who will decide whether Assange should be extradited to the USA. This is also pending the outcome of an appeal to the Supreme Court.

We covered the Divisional Court’s decision on the blog here and the decision of the district judge here.

4. A Christian fostering agency

R (Cornerstone) v Ofsted [2021] EWCA Civ 1390

Also in September, the Court of Appeal gave judgment in a claim for judicial review concerning whether it was lawful for an independent fostering agency based in the North East of England to only accept heterosexual evangelical Christians as potential carers under the Equality Act 2010 and the European Convention on Human Rights. The challenge was brought after a draft report by Ofsted stated that this policy was unlawful and assessed the effectiveness of the agency’s leaders and managers as ‘Inadequate’.

The High Court had dismissed the claim, holding that whilst the agency’s policy was not unlawfully discriminatory on the grounds of religious belief, it was unlawfully discriminatory on the grounds of sexual orientation. The Court of Appeal dismissed the appeal. In a detailed decision, it was held to be of particular importance that a paragraph of the agency’s code of practice stated that carers must abstain from “sexual sins” including “homosexual behaviour and wilful violation of your birth sex.” The putative distinction proposed by the agency between sexual behaviour and sexual orientation to explain this away was considered to be a false one. Moreover, same-sex couples would be automatically rejected by agency. There was therefore a clear difference in treatment giving rise to direct discrimination.

We covered the Court of Appeal’s decision here.

5. Mandatory vaccination of care home workers

Peters & Anor, R (On the application of) the Secretary of State for Health and Social Care & Anor [2021] EWHC 3182 (Admin)

Well did you think we could entirely avoid discussing Covid?

In November, the High Court dismissed a renewed application for permission to proceed with a judicial review challenge to provisions of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 requiring a registered person who runs a regulated activity in a care home to ensure that any person entering the premises has been vaccinated (unless they are exempt for clinical reasons).

A number of arguments were made by the claimants, including one based on s. 45E of Public Health (Control of Disease) Act 1984, which provides that no person can be compelled to undergo medical treatment. However, it was held by Whipple J that this was not, on a proper understanding, incompatible with the 2021 Regulations, which do not mandate vaccination but rather

impose a consequence, depending on the choice a person makes, and preclude someone who has chosen not to be vaccinated from taking up work in a care home unless they come within an exempted category …

The court dismissed this ground (together with each of the claimants’ other grounds) as unarguable. In this regard, it was also affirmed that the aim of the Regulations was to reduce the spread of Covid-19 in care homes and that there was a broad discretion afforded to the Government to determine high-level public health policy decisions of this nature.

We covered the decision on the blog here.

6. Child Tax Credits

SC, CB and 8 children, R. (on the application of) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26

In July, the Supreme Court dismissed a challenge against limits to tax credit payments introduced by the Government after a commitment in the Conservative Party manifesto in 2015 to limit a person’s entitlement to child tax credit to just two children (unless one of a narrow range of prescribed exceptions applied), as part of a wider policy pledge to substantially reduce the amount spent on welfare benefits.

It was argued that the two-child limit was contrary to the right to family life under Article 8 ECHR and the prohibition of discrimination under Article 14. These arguments were rejected at each stage, culminating in a judgment of the Supreme Court delivered by the President. It was not accepted that the policy intended to limit family sizes and it was further held that there was no evidence to show that it had this effect or that the policy had a damaging effect on a child’s integration into their family. Although it was accepted that the provision could be indirectly discriminatory against woman as compared to men (as women made up 90% of single parents bringing up children) and also against children living in households with more than two children, the measure was held to be justified, particularly where there was a rational connection between the two-child limit and the economic aim of reducing public expenditure.

We covered the case on the blog here.

The judgment also included (at para 162) criticism by Lord Reed of “campaigning organisations which lobbied unsuccessfully” against a measure, which “then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.” This comment was made in a context of increasing rancour over the role of judicial review and human rights legislation. It is an issue that is unlikely to go away in the coming year. After receiving the independent report of Sir Peter Gross into the working of, and proposed reform of, the Human Rights Act, the Government has decided to bring forward a further consultation this year.

7. Vicarious Liability (again)

The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356

Issues of vicarious liability remained prominent this year and in March the Court of Appeal offered further guidance following Supreme Court decisions last year in VM Morrison Supermarkets PLC v Various Claimants [2020] UKSC 12 and Barclays Bank v Various Claimants [2020] UKSC 13 (discussed in last year’s round-up of the year).

This case concerned a claim brought against the Trustees of the Barry Congregation of Jehovah’s Witnesses for the injuries suffered as a result of a rape perpetrated by an elder of the congregation. The Court of Appeal concurred with the High Court, holding that the elder was integral to the ‘business’ of a congregation and that, applying the tailored test in cases of sexual abuse, the conferral of authority by the organisation upon its elders, coupled with the opportunity for physical proximity which this gave rise to, meant that there was a close connection between the relationship between the tortfeasor and the organisation and the act of the tortfeasor.

The decision is likely to be an important one for claimants going forward, particularly in the sexual abuse context. We covered this case here (and have discussed vicarious liability in a number of other articles, including here, here and here).

8. “Wrongful Birth”

Khan v. Meadows [2021] UKSC 21

A claim for “wrongful birth” typically involves a damages claim brought after a person is born with a disability, made on the basis that, had it not been for the defendant’s negligence, the person would never have been born.

In this case, the claimant mother was alerted to a risk that she may carry the haemophilia gene and wished to avoid having a child with that condition. However, her GP failed to arrange for her to undergo genetic testing and the blood tests that were arranged instead gave her false reassurance. She subsequently gave birth to a child who suffered not only from haemophilia but also from autism. It was admitted that the GP was liable to compensate the mother for the additional costs associated with her child’s haemophilia, but denied that there was liability in relation to the much more substantial costs of bringing up a child with autism.

The Court of Appeal accepted this argument and in June, the Supreme Court dismissed the appeal. Detailed guidance was provided, including that particular attention must be paid to the scope of the duty to warn of potential risks of harm and the need for “a sufficient nexus” between that element of harm and the subject matter of that duty of care. Therefore, even if having a baby with autism was a foreseeable consequence of a breach of duty and would have been avoided with reasonable care, the claimant was nonetheless not entitled to damages, as the purpose of the consultation with the GP was enable an informed decision about having a child with haemophilia, rather than autism.

In this regard, the Court reaffirmed a test which would sometimes (though not always) provide an important guide, asking what the loss would have been if the information which the defendant gave (that the child would not carry the haemophilia gene) had been correct. The answer was that the child would have been born with autism in any event.

In the analysis of this case on the blog here, it is suggested that the decision throws into doubt the famous decision in Chester v. Afshar (also discussed here). We also examined another decision on “wrongful birth” handed down at the end of last year on the blog here.

9. Maya Forstater

Forstater v CDG Europe [2021] UKEAT/0105/20/JOJ 

This case concerned a claimant who holds “gender-critical” beliefs: that biological sex is real, important, immutable and not to be conflated with gender identity. She expressed such views on Twitter when the Government introduced proposals to reform the Gender Recognition Act 2004 to allow people to self-identify their gender (in one instance referring to someone who identifies as gender fluid as a “part-time cross dresser”).

These tweets were the subject of an employment dispute after several members of staff complained about them and the claimant’s employer did not renew her consultancy contract. The claimant brought complaints of belief and sex discrimination against the employer.

A central issue was whether the claimant’s belief was a “philosophical belief” within the meaning of s. 10 of the Equality Act 2010. The Employment Tribunal had held that they were not, as it was considered the the belief was “absolutist in nature” and not worthy of respect in a democratic society.

However, in June the Employment Appeal Tribunal overturned this decision. It was held that the Tribunal had implicitly and impermissibly made a value judgment based on its own view as to the legitimacy of the belief (which it was held did not come near to the kind of belief akin to Nazism or totalitarianism), had wrongly found the question of open-mindedly the belief was held to be a relevant consideration (as it was held that a dogmatically-held belief was no less entitled to protection than any other belief) and wrongly used the tools of logic or science to satisfy the requirement that a belief must attain a certain level of cogency or cohesion (which it was considered that no religious belief could ever satisfy).

It was further held that the claimant’s actual position was more nuanced than the Tribunal’s description of it indicated and that the Tribunal had erred in concluding that this belief “necessarily” harmed the rights of others, particularly where this conclusion was predicated on the incorrect assumption that she would always misgender trans persons (irrespective of the circumstances) and failed to recognise that whether there would be harassment in a given situation is a highly fact-sensitive question.

A freshly constituted Tribunal will now hear the case to determine whether the treatment the Claimant complained about was because of or related to her belief.

We discussed the decision on the blog here and wider analysis was provided concerning the case here and here.

10. Gender on Passports

R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56

And finally, so hot off the press that we have not yet covered it in a dedicated article, this month the Supreme Court gave its decision in a major case concerning gender identification on passports.

The appellant was born female but identifies as non-gendered and, on a number of occasions over a long period of time, contacted the authorities regarding whether it was possible for a passport to be issued without making a declaration of being male or female. After being was informed that it was not, the appellant applied for, and was issued with, passports in which the gender was recorded as female. This was done in circumstances where a policy was operated by HM Passport Office that an applicant for a passport must state on the application form whether their gender is male or female, and, if no gender is stated, the gender shown on the applicant’s supporting documents is selected.

It was argued that this policy contravened Article 8 ECHR, either taken on its own or read together with the prohibition on discrimination under Article 14.

The claim was dismissed at each stage. The Supreme Court held that the the appellant’s interest in being issued with an “X” passport was outweighed by public interest considerations including the importance of maintaining a coherent approach across government to the question of whether, and if so in what circumstances, any gender categories beyond male and female should be recognised. Moreover, this was held to be an area in which states would be afforded a high degree of latitude in light of the absence of any consensus amongst signatory states, the complexity and sensitivity of the issue and the need for a balance to be struck between competing private and public interests.

It was also held, in relation to a further argument made by the appellant, that to interpret the Human Rights Act as giving judges the right to find breaches of Convention rights even where the European Court would hold that UK law was in conformity with the Convention would be a substantial and improper expansion of the constitutional powers of the judiciary at the expense of Parliament. This aspect of the decision means that this case may well have relevance not only to the issue of gender recognition, but also to the latest Government consultation regarding the working of the Human Rights Act.

We have not yet published an article on the Supreme Court’s decision but plan to do so soon. We covered the Court of Appeal’s decision here.

As ever, we at the blog are very grateful for your continued interest and support. It has been a real pleasure editing the blog over this year. I hope you have an lovely break and wish you all the very best for 2022.

Jonathan Metzer