The Weekly Round-Up: unlawful care home policies, new legislation and voter ID

2 May 2022 by Matthew Johnson

In the news:

Last week saw an influx of legislation approved before Parliament’s Thursday end-of-session deadline. Some include:

• The Nationality and Borders Act. Three of the most controversial provisions are: to allow asylum claims to be handled at overseas facilities (offshoring asylum); criminalising those who knowingly arrive in the UK illegally; and treating asylum seekers differently depending on how they enter the UK.
• The Police, Crime, Sentencing and Courts Act. Another turbulent journey to Royal Assent, this grants police extra powers to quash disruptive demonstrations. This is done by increasing restrictions on protests where ‘noise’ could cause ‘serious disruption’, and by criminalising activity which causes ‘serious distress, serious annoyance or serious inconvenience’ without ‘reasonable excuse’.
• The Judicial Review and Courts Act. This was passed after a last-minute amendment proposed by the Law Society to remove a statutory presumption. The presumption would have dictated to judges what remedies they could award in place of judicial discretion.
• The Elections Act. This requires voters to present photo ID at polling stations, justified by the government as making the electoral system ‘secure, transparent and fair for generations to come’. However, there is a fear this could see many would-be voters turned away.

An independent review by Jonathan Hall QC has concluded that terrorists in prison ‘enjoy high status’ within a culture of fear and violence across English and Welsh jails. The review details examples of ‘Islamic gang-like activity’, exacerbated by the 27% cut in staff between 2010 and 2017. A separate report by Hall also discovered that the Government does not keep a record, ‘officially or unofficially’, of the number of prosecuted terrorists returning to the UK from Syria.

In other news:

• Insulate Britain have followed up on their threats last week to disrupt hearings by glueing themselves to magistrates court furniture. Dr Diana Warner superglued her hand to the glass dock and ignored court instructions, instead paying tribute to the activist who died after setting himself on fire outside the US Supreme Court.

• Victims of sexual offences are subject to the longest waiting period on record, with an average of 9 months for cases to go through Crown Courts. Data also demonstrates that the speed of cases depends on their location, with cases in Leicester taking the longest to complete (on average 15 months).

• The housing charity ‘Shelter’ has published research that reveals that in the last three years more than 200,000 private renters in England have been served eviction notices without doing anything wrong. This means that every seven minutes a tenant is landed with a ‘no-fault eviction notice’.

In the courts:

• On Wednesday in Coughlan, R (on the application of) v Minister for the Cabinet Office [2022] UKSC 11, the Supreme Court dismissed an appeal that the 2018 voter-ID pilot schemes (now law following the Elections Act 2022) were ultra vires pursuant to section 10(2)(a) of the Representation of the People Act 2000. The appellant’s case was that this section, which permits schemes relating to ‘how voting takes place’, is confined to the technical modalities of voting and does not allow eligibility to vote to be interfered with. This was rejected by the court, who held that ‘how’ in this instance is broad and indicates the steps by which electors make votes. Crucial to this was that if the appellant’s interpretation was followed, pilot schemes would almost always be at risk of adversely affecting rights to vote (see [54]). See Jake Richards’ commentary on this case at the Court of Appeal here.

• Also on Wednesday in Gardner & Harris v Secretary of State for Health and Social Care & Ors [2022] EWHC 976 (Admin), the High Court declared that the March and April 2020 Covid policies to discharge hospital patients into care homes without testing or isolation was unlawful. The claim of judicial review at common law succeeded because the Department were notified of the dangers of the guidance, yet still took weeks to make amendments. This was found to be irrational as it failed to consider the risk of asymptomatic transmission and did not assess the balance of risks (see [293]). The claim in the alternative (judicial review) succeeded in place of the primary grounds (Article 2 and 8 ECHR), which were dismissed.

• On Friday in All the Citizens & Anor v Secretary of State for Digital, Culture, Media and Sport & Ors [2022] EWHC 960 (Admin), the High Court dismissed two separate claims relating to the use of private communication systems (such as WhatsApp and email) for government business. The claimants’ case was that using these systems means public records that should be retained are unavailable, which is unlawful for 2 reasons: (i) incompatible with section 3(1) of the Public Records Act 1958; (ii) unjustifiable breach of policy. Regarding (i), the court found that the Act does not expressly or impliedly prohibit automatic deletion. Regarding (ii), government policies are not enforceable as a matter of public law, primarily because they do not inherently concern the exercise of public powers (see [109 – 115]).