The Weekly Round up: planned new Bill of Rights; fall in the success rate of JR claimants; Afghan judge applies for relocation to UK

4 July 2022 by Ruby Turok-Squire

Criticism of the planned British bill of rights has been gathering momentum. Free speech campaigners have argued that it will undermine freedom of expression rather than support it.  Labour’s shadow justice minister called it ‘a very dark day for victims of crime, for women, for people in care, for everyone in this country who rely on the state to protect them from harm’ . A cross-party amendment that would include the right to abortion has been proposed. While Dominic Raab stated that abortion is already ‘settled in UK law’, Labour MPs have argued that there should be a free vote for MPs on enshrining abortion in the bill as a fundamental right.

Nicola Sturgeon has announced that the Scottish government intends to hold an independence referendum on 19^th October 2023. Her government has requested that the Supreme Court give a ruling on whether they can legally call such a referendum without authorisation from Westminster. Sturgeon commented that if the court’s response is negative, the next general election could provide a ‘de facto referendum’ on independence.   

In other news

According to a recent analysis, the proportion of judicial reviews in England and Wales in which claimants have won has fallen by 50% since 2020. Last year, 31 judicial reviews (excluding immigration) found for the claimant in the High Court, the lowest number since 2001, when records began. Jolyon Maugham QC, director of the Good Law Project, responded with a warning that the rule of law ‘could easily become a relic for the history books’

The Ministry of Justice and the Attorney General’s Office have called on the Law Commission of England and Wales to review the law regarding contempt of court. This comes amidst concerns that the current system is ‘disordered and unclear’. The review will aim at simplification, clarification, consistency and greater effectiveness within the law regarding civil and criminal contempt of court. It will address, among other things, Article 10 ECHR in relation to publishing information about court proceedings, potential procedural issues, responsibility for adjudication, investigation and prosecution, and the appropriateness of current penalties. 

The UK Information Commissioner has announced that public authorities will only be fined for data breaches in ‘the most egregious cases’. The effectiveness of fines as a deterrent was doubted by the Commissioner. Public reprimands will be used more frequently, alongside enforcement notices, as part of ‘a more proactive and targeted approach’. 

A new Local Government Association (LGA) Councillor census has revealed that seven out of ten councillors reported experiencing abuse and intimidation in the last year, with one in ten experiencing frequent abuse. The LGA’s new report, Debate Not Hate: the impact of abuse on local democracy,   highlights councillors’ powerlessness when faced with such abuse from the public. An expectation of toleration may be discouraging prospective councillors’ engagement with local politics. The LGA has called on government to to act to protect councillors’ safety and wellbeing.

In the courts

On June 27^th, in The Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2022] EWCA Civ 852, the Court of Appeal upheld a High Court decision that private law actions against water companies concerning the unauthorised discharge of sewage cannot be brought by affected parties. In essence, MSCC claimed that UU was discharging untreated sewage into a canal without their consent or statutory authority, and so should be liable for trespass or nuisance (42). Nugee LJ applied Marcic (Respondent) v. Thames Water Utilities Limited (Appellants) [2003] UKHL 66, where the House of Lords had held that ‘it would undermine the statutory scheme applicable to the enforcement of sewerage undertakers’ duties’ if an action in nuisance could be brought against them (42). David Hart QC of 1 Crown Office Row acted for Manchester Ship Canal.

The Good Law Project later commented that it will consider intervening again if the Manchester Ship Canal Company appeal to the Supreme Court. 

On June 30^th, in Baptie v The Royal Borough of Kingston Upon Thames [2022] EWCA Civ 888,  the Court of Appeal considered the case of Taryn Baptie, who had made a homelessness application to the Local Authority (LA) in January 2019. The LA had decided (and upheld upon review) that she was intentionally homeless. The reviewing officer had found that she had been able to afford the accommodation she was evicted from. The central question for the court was whether that affordability decision was unlawful in that it was based on an irrational approach to assessing Ms. Baptie’s reasonable living expenses. The Court of Appeal held that the reviewing officer’s ‘’multifactorial analysis’ (68) is ‘unimpeachable in public law terms’: ‘these calculations have to involve snapshots’ (69). 

On June 30^th , in D (A Child: Placement Order), Re [2022] EWCA Civ 896, a maternal grandmother appealed against a decision that her grandchild could not be placed with her but should be placed for adoption. Peter Jackson LJ underlined the ‘rigorous evaluation and comparison of all the realistic possibilities’ (1) necessary when considering adoption. The court had to consider whether the possibility of placement with grandmother had been fully evaluated. The appeal was allowed: ‘the grandmother’s argument is convincing’ (3). The judge had ‘telescoped the process’ (19), as if protection from the parents’ toxic relationship was ‘the ultimate question’ and ‘as if any risk of parental involvement… was to be regarded as fatal’ (19). Many interconnected questions had gone unaddressed by the judge (20) and the principle of proportionality had not been mentioned, leaving the evaluation of the grandmother’s position in comparison to adoption incomplete (20-22). 

On July 1^st, in JZ, R (On the Application Of) v The Secretary of State for the Home Department & Ors [2022] EWHC 1708 (Admin), a judge in Afghanistan (JZ) sought further information from the defendants regarding other judges who had been relocated to the UK from Afghanistan. JZ applied for judicial review of a decision refusing his application under the Afghan Relocations and Assistance Policy (ARAP). JZ and his family are in hiding in Afghanistan. His evidence is that many Taliban fighters whom he sentenced have been released and have re-joined the Taliban, that the Taliban is actively seeking him and he has been receiving threats since August 2014 (6). JZ was identified as eligible for evacuation to the UK, but there had been no time to consider his case fully as the security situation in Afghanistan deteriorated (8). JZ argued that decision-making within the defendants’ evacuation and relocation processes ‘has been inconsistent and incoherent’ and that consistent treatment is ‘a particular application of rationality’ (11). The defendants countered that equal treatment is not a free-standing ground for judicial review (12). JZ’s Part 18 application was allowed, to the extent that the defendants should provide answers to various questions regarding ARAP (103): ‘provision of this information is necessary in order to resolve the matter fairly and justly’ (50).