The Weekly Round-up: Roe v Wade, Bell v Tavistock and guidance on suitable accommodation and misuse of private information

9 May 2022 by Tabitha Hutchison

In the news:

• On 2 May, a draft majority opinion of the Supreme Court of the United States was leaked, suggesting that the court has voted to strike down the landmark decision of Roe v Wade and sparking widespread anger. In the opinion, Justice Samuel Alito states that “Roe was egregiously wrong from the start” and that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This is the first time in history that a draft decision has been disclosed publicly while a case was still pending. On 3 May, Chief Justice John Roberts confirmed the authenticity of the decision, which would remove federal constitutional protection of abortion rights and leave the decision in the hands of each state.
• Under a new pilot scheme, victims could have the right to attend full Parole Board hearings from as early as next month. The Parole Board will also be required to take into account victims’ submissions and victims will be allowed to ask questions. Currently, victims can ask to read a statement in person but are not allowed to hear the rest of the evidence. 
• Police are investigating a gathering attended by Sir Keir Starmer and Angela Rayner in April 2021. Having initially decided to take no action, Durham Constabulary has now begun conducting an investigation into potential breaches of Covid-19 regulations in light of “significant new information”. Durham Constabulary had previously stated that it had a policy against retrospective Covid fines, after allegations of lockdown breaches by Dominic Cummings.
• On 4 May, foreign secretary Liz Truss announced in a press release that there will be a ban on services exports to Russia, covering services such as accountancy, consultancy and PR advice. Lawyers, however, will still be able to service Russian clients.

In other news:

• It was announced on Thursday that there will be no appeal to the Supreme Court from the Court of Appeal’s decision in Bell and another v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 because it raised no arguable point of law.
• The Government has said that it will not be appealing the ruling by the High Court in Gardner & Harris v Secretary of State for Health and Social Care & Ors [2022] EWHC 976 (Admin). That judgment stated last week that the Government’s March and April 2020 Covid policies to discharge hospital patients into care homes without testing or isolation was unlawful.
• The Court of Appeal is reviewing the sentences of five killers, including the whole-life sentence of Sarah Everard’s killer, Wayne Couzens. The hearing concluded on Wednesday, with a decision expected in due course.

In the courts: 

• In R (Elkundi) v Birmingham and R (Imam) v Croydon (2022) EWCA Civ 601, the Court of Appeal handed down judgment on 4 May on two joined appeals on local authority duties to provide suitable accommodation under section 193(2) of the Housing Act 1996. In Elkundi, the issue was whether the local authority had a ‘reasonable period’ to secure alternative accommodation after finding that accommodation was unsuitable. The Court of Appeal rejected Birmingham City Council’s appeal, holding that as a matter of statutory interpretation, the duty was immediate, non-deferrable and unqualified [77]. In Imam, the court considered if and when the court should make a mandatory order after a finding that the council had been in breach of the section 193 duty. The appellant’s case was that it was for Croydon to show cogent reasons for its breach, not for her to demonstrate a serious effect. The court allowed the appeal, holding that while mandatory relief is a discretionary remedy, where a council has been unable to secure suitable accommodation, it will have to demonstrate that it has taken all reasonable steps to do so [134]. The court below had erred in taking budgetary constraints as a significant factor where there had been a breach of duty [141], and in accepting very general evidence from Croydon that it was doing what it reasonably could [142]. 
• On 4 May in Underwood v (1) Bounty UK Ltd (2) Hampshire Hospitals NHS Trust [2022] EWHC 888 (QB), the High Court provided guidance on the requisite threshold of seriousness for misuse of private information claims and claims for exemplary damages. Nicklin J held: (i) that there was was no positive act on the part of the hospital that could constitute misuse of private information, it being insufficient to sustain such a cause of action that the Defendant had permitted a third party to have access to the Claimants [52]; (ii) that in any case, a claimant’s name, gender and date of birth amount to “trivial” information which does not reach the “level of seriousness required before the tort is engaged” [53]; and (iii) that bringing a claim for exemplary damages was misconceived in this case because such a claim is “wholly exceptional” and “it is never appropriate to add a claim for exemplary damages simply to mark how upset the claimant is about the defendant’s conduct, or as some sort of negotiating strategy” [54].
• Also on 4 May, the Court of Appeal dismissed the appeal in Ullah & Ors, R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 550 against the refusal of the Upper Tribunal (Immigration and Asylum) Chamber (‘UT’) to give the Appellant permission to apply for judicial review. The Court disagreed with the three grounds of appeal for which the Appellant had been granted permission, namely: (i) that the UT was wrong to hold that a delay of nine months by the Secretary of State (‘SoS’) in considering his application for administrative review was justified; (ii) that the UT was wrong to hold that the SoS was not obliged, as a matter of procedural fairness, to give him notice of her investigation, in accordance with Pathan v Secretary of State for the Home Department [2020] UKSC 41; and (iii) that the issue is important because the Appellant was given no time to rectify his application and therefore was left with no leave to remain and no basis to make a further application as he was no longer covered by paragraph 39E of the Immigration Rules (HC 395 as amended) [36].

Elsewhere on the UKHRB:

In the latest episode of Law Pod UK, Rosalind English goes to Belfast to talk to UKHRB correspondent Anureg Deb about the human rights provisions in Article 2 of the Northern Ireland Protocol. This interview took place two days after Sinn Fein gained the largest number of seats in the elections to the Assembly.