The Weekly Round-Up: restrictions, refugees and the right to privacy

21 February 2022 by Byul Ryan-Im

In the news:
Prime Minister Boris Johnson is expected to announce the removal of the last remaining COVID-19 restrictions this afternoon. It is expected that the legal requirement to self-isolate after testing positive will be scrapped alongside free PCR and lateral flow tests. Mr Johnson is set to announce the end of restrictions to be a “moment of pride”, although some groups have expressed concerns about the approach, including NHS leaders and the chair of the British Medical Association Dr Chaand Nagpaul, who said the decision “is not based on current evidence and is premature”.

The Welsh Parliament on Tuesday voted to withdraw consent for the British Nationality and Borders Bill, on the basis that reforms to methods for determining asylum-seeker age would undermine the Senedd’s legislative competence, as they related to a devolved matter. In a letter to Minister for Immigration Kevin Foster, the Welsh Minister for Social Justice outlined this and a further ten matters of concern for the Senedd. These included the establishing of Accommodation Centres, which she said would be “fundamentally incompatible with our Nation of Sanctuary approach”, and the fact that the UN Refugee Agency (UNHCR) has said that the Bill “is fundamentally at odds” with the UK’s obligations under the UN Refugee Convention.

In other news:
A judgement by the Supreme Court last week ruled in favour of privacy laws protecting those facing criminal investigations from being named in the media. However, government sources have reportedly suggested that such protections may be reduced if the government’s plans to replace the Human Rights Act are followed through. A consultation document regarding the plans stated that when it comes to privacy law, “there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds”.

Fair Play for Women, which has been accused of being against transgender rights, lost its challenge to the policy of National Records for Scotland, which allows individuals in Scotland to self identify their sex as male or female the Scottish census. The question regarding sex remains as it has been since 1801, but new guidance on answering was issued last year, stating that trans people can give a different answer to the sex registered on their birth certificate with no need for a gender recognition certificate. The judge held that there was no legal requirement to provide legal proof of sex for censuses, and that referring to “biological sex, sex recognised by law, or self-identified (or “lived”) sex” would all be valid ways of answering the census question.

In the courts:
• Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5 – the Supreme Court unanimously dismissed an appeal by media company Bloomberg LP, which had published a confidential letter to a foreign state from a UK Legal Enforcement Body for information concerning the respondent, who was the subject of a criminal investigation. The Court held that the Court of Appeal had correctly applied the two-stage test for the tort of misuse of private information and was correct to hold that a person under criminal investigation has a reasonable expectation of privacy regarding investigation matters before being charged. The first instance judge had been right to find the balance of ECHR rights in favour of ZXC’s Article 8 right to private and family life over Bloomberg’s Article 10 right to freedom of expression.

• The Good Law Project and The Runnymede Trust, R (on the application of) v The Prime Minister and Anor [2022] EWHC 298 (Admin) – this was a judicial review of the government’s policies regarding the appointment of positions critical to its COVID-19 response. The Claimants contended the positions were filled without open competition and that only candidates with a personal or political connection to decision-makers were appointed. The court found the first Claimant, The Good Law Project, had no standing to bring the claim despite being an interested legal organisation and it noted that “not everyone who has a strong and sincere interest in an issue will necessarily have standing”. It found the second Claimant, the Runnymede Trust, did have standing to bring part of the challenge and on this matter it granted a declaration that the Secretary of State had not complied with public sector equality duty in relation to the appointments of interim chair of the National Institute for Health Protection and director of testing at NHS Test & Trace. See Rosalind English’s report on this case below.

• T & Ors, R (On the Application Of) v Secretary of State for Work And Pensions [2022] EWHC 351 (Admin) – the High Court ruled that it was lawful for the government to have increased Universal Credit standard allowance by £20 a week at the height of the covid pandemic whilst not similarly increasing the allowance available on legacy benefits such as Jobseeker’s Allowance and Employment and Support Allowance. The Claimants argued that a greater proportion of disabled people receive legacy benefits as opposed to Universal Credit, and that the policy therefore indirectly discriminated against disabled people, contrary to Article 14 and possibly Article 8 of the ECHR. Finding that the increase had come about in exceptional circumstances, the court held that the limiting the £20 increase to Universal Credit recipients was lawful.

On the UKHRB:
• Rosalind English tackles the question of standing in the Good Law Project and Runnymede Trust case
• Jasper Gold examines the Environmental Agency’s protection of a 6-year-old’s right to life
• The latest episode of Law Pod UK covers the most significant cases of 2021

Recent publications:
• The Unity of Law by Rabinder Singh
• The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore by Brice Dickson and Conor McCormick