The Weekly Round-up: the Bill of Rights, Roe v Wade and the Investigatory Powers Act 2016

27 June 2022 by Tabitha Hutchison

In the news: 

On Wednesday, a new Bill of Rights was introduced to Parliament. While the Government claims that the Bill ‘will strengthen traditional UK rights’ which are ‘under attack’ from ‘stifling political correctness’, critics say the Bill dilutes domestic human rights protection and seeks to diminish the powers of domestic courts. Key aspects of the Bill are as follows: 

• it gets rid of the interpretive obligation under s3 of the Human Rights Act 1998, with no analogous replacement; 
• it prevents UK courts from adopting new interpretations of ECHR rights that would require a public authority to comply with a positive obligation and limits their ability to enforce existing positive obligations;
• it introduces a permission stage requiring people to show they have suffered a significant disadvantage before their claim can go ahead;
• it prevents domestic courts from finding legislative provisions concerning deportation to be incompatible with the Article 8 right to respect for private and family life unless the provision would require the relevant person to be treated in a way that would occasion ‘harm’ so ‘extreme’ that it would ‘override the otherwise paramount public interest’ in removal from the UK; and 
• it requires courts, when deciding ‘incompatibility questions’, to treat Parliament as having ‘decided’ that the Act strikes an appropriate balance between the relevant competing factors.

The Bill’s detractors have suggested that, despite its stated aim to ‘bring rights home’, the Bill will in fact result in the UK being in breach of its obligations under the ECHR more often, making it more vulnerable to adverse rulings by the ECtHR. 

On Friday, the US Supreme Court overturned Roe v Wade, holding that there is no longer a federal constitutional right to an abortion. Going forward, abortion rights will be determined by states, unless Congress acts. President Biden commented: “The Court has done what it has never done before: expressly take away a constitutional right that is so fundamental to so many Americans that had already been recognized.”

In other news:

• An independent review into historic Child Sexual Exploitation in Oldham, published on Monday 20 June, has identified ‘serious failings’ which left children exposed to abuse. Its findings include that some children had been failed by the agencies that were meant to protect them because child protection procedures had not been properly followed and that there were serious failings in the handling of some cases. 
• Criminal barristers have voted to strike in their ongoing dispute with the government over legal aid, beginning today (Monday 27 June). Participating barristers will refuse to work, including taking on new cases. A statement by the Lord Chief Justice, Lord Burnett of Maldon, stated that “all cases in which there is non-attendance should be referred to the Senior Presiding Judge’s Office to consider whether to involve the Bar Standards Board” and the Bar Standards Board has said that “barristers who deliberately fail to attend a hearing at which they are due to represent a client may face regulatory action”. 

In the courts: 

• On 20 June, in AB & ors, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 1524 (Admin), the Administrative Court allowed a challenge by the claimant based on section 55 of the Borders, Citizenship and Immigration Act 2009, which relates to the duty regarding the welfare of children. It held that the SSHD’s policy guidance “Family life (as a partner or parent), private life in exceptional circumstances (version 16.0)” fell to be declared unlawful to the extent that it failed to reflect the SSHD’s statutory duty to have regard to the best interests of children pursuant to section 55, and in the light of the declaration of the Divisional Court concerning the unlawfulness of GEN.1.11A of Appendix FM to the Immigration Rules. As a result, the decision by the Defendant not to lift a condition on the AB’s grant of limited leave to remain that prevented AB from accessing public funds fell to be quashed. Two previous withdrawn decisions were also declared to have been unlawful.
• On 20 June, the High Court dismissed the appeal in FXJ v Secretary of State for the Home Department & Anor [2022] EWHC 1531 (QB) against a decision that the Respondent was not liable in tort, misfeasance in public office or under s3 of the Human Rights Act 1998 for the harm caused to the Appellant, in circumstances where a delay before withdrawing an appeal against a decision as to immigration status had exacerbated the Appellant’s mental health condition thereby leading to his hospitalisation. The Court held, inter alia, (1) that the Judge had not erred in characterising the parties’ relationship as one of parties in litigation and (2) in concluding that there was no duty of care between opponents in such litigation; (3) the Judge had not erred in deciding that the Respondent did not owe a duty of care, employing the approach in Poole [65] that “public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm”; and (6) while Article 8 could be engaged in the context of removal decisions, and while the Judge’s reasoning and approach were flawed, the ultimate conclusion that there was no breach was not wrong. 
• On 24 June, in SR (Sri Lanka) v Secretary of State for the Home Department [2022] EWCA Civ 828, the Court of Appeal dismissed an appeal by A, a citizen of Sri Lanka who claimed that he had helped the Liberation Tigers of Tamil Eelam during the civil war in Sri Lanka, had been detained and tortured by the authorities and would be at risk if he returned. All three grounds were dismissed: (1) the Upper Tribunal had not erred in law by substituting ‘implausible’ for ‘incredible’ in relation to A’s claim. The First Tier Tribunal had not erred in law by finding A’s claim incredible – it applied the correct burden of proof in form and in substance. (2) The First Tier Tribunal had not applied the wrong legal test to A’s sur place activities because it did not reject A’s sur place claim simply because it considered that his commitment was not genuine. (3) The Upper Tribunal’s approach to paragraph 276ADE of the Rules was not incorrect, because A did not persuade it that his profile was such that he would be at risk of ill treatment by the authorities if he returned to Sri Lanka.
• On 24 June, in National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor (Stage 3) [2022] EWHC 1630 (Admin), the Divisional Court dealt with the third stage of the Claimant’s challenge to provisions of the Investigatory Powers Act 2016. The first stage had concerned the compatibility of Part 4 of the IPA with EU law and the second stage was an application for a declaration of incompatibility under s4 of the Human Rights Act 1998. At the third stage, the Court rejected all the grounds of challenge but one: the Claimants succeeded on the ground that Part 3 of the IPA does not comply with the Watson requirement for prior independent authorisation of access to communications data. The Court held that there was no reason why the security and intelligence agencies should not be subject to the same legal regime as the police, when they are acting for an ordinary criminal purpose. It was incompatible with retained EU law for such agencies to be able to obtain access to retained data for the “applicable crime purpose” by relying upon section 61 (which allows them to obtain an internal authorisation from a designated senior officer) rather than section 60A (which requires an application to the IPC).