The Weekly Round-up: PM resigns, Criminal Bar strikes, and no diplomatic immunity for modern slavery

11 July 2022 by Matthew Johnson

In the news

The biggest story filling the headlines this week was that Boris Johnson has resigned as leader of the Conservative Party following over 50 resignations from government ministers. Though predominantly a political development, there are potential legal implications to the decision. This is because, until the leadership campaign announces his successor, current policies are stagnated under the ‘lame-duck government’. There is, therefore, doubt over the future of three particularly controversial policies: the Northern Ireland Protocol Bill; the Bill of Rights Bill; and the Rwanda scheme.

• Johnson’s plan to introduce the Northern Ireland Protocol Bill was an effort to tear up the agreements he signed that impose checks on goods going from Britain into Northern Ireland. Following his resignation, EU leaders have quickly called for the succeeding government to abandon the Bill. The DUP leader Sir Jeffrey Donaldson also reacted to the news by stating that ‘there can be no functioning devolved government in Stormont and the protocol’.
• The proposed Bill of Rights Bill is Dominic Raab’s effort to replace the Human Rights Act, with the vision to allow the UKSC to take little account of rulings by the ECtHR. While Raab still remains in office, there are question marks over whether the controversial Bill will survive the administrative overhaul that is soon to unfold. See the reference below to the latest episode of Law Pod UK, which discusses the Bill in detail.
• In a similar vein, Patel and Johnson’s Rwanda scheme, which has currently failed to get through the courts, is in jeopardy under a future government. In any event, however, the case is due to be argued again in the High Court on the 19^th of July.

The Jermaine Baker inquiry, the inquiry into death of the unarmed man who was shot while attempting to break a fellow gang-member out of prison, concluded that his killing was lawful. The report criticised the Metropolitan police for 24 failings, but found that Baker did not die as a result of these. Such criticisms detailed a lack of police meeting notes as ‘indicative of a widespread and arrogant attitude towards compliance and formality’, and the report was framed as a ‘loud wake-up call to a newly appointed commissioner’. Baker was a member of a criminal gang and was shot at point-blank range by a firearms officer, who now faces a gross misconduct hearing. The UKSC are to hear the case in October to determine whether defence of self-defence can be relied on in such circumstances.

In other news

• The Criminal Bar has moved into its second week of industrial action, with barristers walking out of courts across the UK. The Association are asking for an increase of 25% in wages for legal aid work in response to the current situation, where some junior barristers are making less than the hourly minimum wage. The action is planned to take place every other week from August with no end date in sight.

• It has been revealed that dozens of police investigations have been launched over the past decade into women who have suffered from miscarriages or stillbirths. The investigations target women who the police suspect have had illegal abortions, and in some cases have involved the seizure of mobile phones and laptops for invasive ‘digital strip searches’. While the 1967 Abortion Act legalised abortions, this requires the consultation of two doctors; any abortion carried out in alternative circumstances can be prosecuted. The British Medical Association, the Royal College of Midwives, and the Royal College of Obstetricians and Gynaecologists have all called for a change of the law in this area, stating that the current approach is ‘punitive’.

In the courts

• The Supreme Court, in Basfar v Wong [2022] UKSC 20, held that there is no immunity for diplomats engaged in modern slavery, human trafficking, or domestic servitude. The appellant was a migrant domestic worker who worked for the respondent, a diplomat, and claims to be a victim of human trafficking. Under article 31 of the Vienna Convention on Diplomatic Relations 1961, diplomatic agents enjoy immunity from the civil jurisdiction of the receiving state. One exception to this is claims relating to any ‘professional or commercial activity’ exercised outside a diplomat’s official functions. The Court held, by a majority of 3:2, that if the alleged facts are proved, the activity would fall within this exception. It was determined that defining the scope of ‘commercial activity’ requires a purposive approach to include some activities incidental to the ordinary conduct of daily life. The case provides that the appropriate criteria for distinguishing between (i) ordinary domestic employment (which is covered by immunity) and (ii) the exploitation of domestic workers for profit (which falls into the exception of ‘commercial activity’), are the concepts of servitude, forced labour and human trafficking.

• The Court of Appeal, in Barts NHS Trust v Battersbee [2022] EWCA Civ 935, allowed an appeal against a wrongful approach to determine what was in the best interests of a young boy who was declared brain stem dead. On the facts, a brain stem test could not be completed on the boy, but the trial judge made a declaration of death nevertheless, despite none of the medical witness making such a diagnosis. The proper procedure should have entailed a consideration of the best interests question alone, in isolation of any attempt to declare death. The product of this distinction would have been vastly different submissions and a fundamentally different trial. The Court declined to undertake the best interests assessment themselves, instead remitting the case to Hayden J to decide the case afresh.

• The High Court, in Kellogg Marketing and Sales Company v Secretary of State for Health and Social Care [2022] EWHC 1710 (Admin), dismissed an application by Kellogg in relation to The Food (Promotions and Placement) (England) Regulations 2021. The main claim was that the Regulations did not have regard to the consideration that breakfast cereals are typically consumed with milk, and that this should be relevant in assessing whether the product is classified as high in fat, sugar, or salt. The claimants’ case rested on the fact that nutrition should be assessed on an ‘as consumed’ basis, rather than an ‘as sold’ basis. In dismissing these claims, the Court considered this to be a case in which ‘a significant degree of deference should be accorded to the decision maker(s)’. Rosalind English’s commentary of the case can be found here.

• The Employment Tribunal in Maya Forstater v CGD Europe, Centre for Global Development, Masood Ahmed Case Number 2200909/2019 decided that the decision not to offer the claimant a full contract of employment was taken because of her beliefs surrounding transgender people, and therefore amounted to direct discrimination. Three of Ms Forstater’s complaints under the Equality Act were deemed to be well-founded: (i) direct discrimination because of belief by a decision not to offer her a contract of employment; (ii) direct discrimination because of belief by a decision not to renew her Visiting Fellowship; and (iii) victimisation by the removal of her profile from the Respondent’s website. The fundamental reason for the Tribunal’s the decision was that the way the claimant’s beliefs were expressed were not such that objection could reasonably be taken to it when considered in the context of ongoing debate.

Elsewhere on the UKHRB

• On Law Pod UK, Rosalind English talks to Andrew Warnock QC of 1 Chancery Chambers about the provisions within the 2022 Bill of Rights.
• Belinda Cheney discusses what the Britney Spears saga teaches us about Capacity.
• Rosalind English comments on the case of Kellogg Marketing and Sales Company v Secretary of State for Health and Social Care [2022] EWHC 1710 (Admin).