The Weekly Round-up: industrial action laws, prioritising menopause, and Crown Court cameras
3 August 2022
In the news
- On Monday 25 July, the Court of Appeal refused permission to appeal against a decision to end 12-year old Archie Battersbee’s life support treatment. The decision was stayed for 48 hours – until 2pm on Wednesday – to allow Archie’s parents to apply to the European Court of Human Rights for interim relief. On Tuesday 2 August, the family’s fresh appeal to the Supreme Court, based on ‘new evidence’ of Archie attempting to independently take breaths, was also refused.
- Also on Monday, the London Central Employment Tribunal ruled in favour of Allison Bailey, awarding her £22,000 in her discrimination case. The Tribunal found that the barrister at Garden Court Chambers (GCC) had been victimised and discriminated against by her employer for expressing gender critical beliefs. The claim against Stonewall Equality Ltd was dismissed; the LGBT charity worked with GCC, which had joined its ‘diversity champions’ scheme. Ms Bailey accused Stonewall of ‘trans-extremism’.
- Thursday 28 July marked a historic moment for the UK’s legal system; for the first time, filming and public broadcasting was allowed in the Crown Court. Cameras recorded Sarah Munro QC sentencing Ben Oliver, who killed his grand-father in January 2021. Her judgement, handing down a life sentence with a minimum term of ten years and eight months, was accompanied by an informative explanation.
In other news
- On Tuesday 26 July, The Ministry of Defence proposed an independent review of its handling of allegations that the SAS executed unarmed civilians in Afghanistan. BBC Panorama’s revealed that one SAS unit was involved in 54 suspicious killings in one six-month tour in 2010/2011. A High Court hearing on Tuesday brought against the UK defence secretary, Ben Wallace, revealed internal concerns that the main Royal Military Police (RMP) investigation into the raids- Operation Northmoor – was deeply flawed.
- On 21 July, new laws came into force enabling organisations impacted by industrial action to employ temporary agency workers to fill vacant positions cause by staff striking. The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 was also introduced, increasing the amount of damages which may be awarded against a trade union from £250,000 to £1,000,000.
- MPs have called for an amendment to the Equality Act to introduce menopause as a protected characteristic. The lack of support for menopausal symptoms is reportedly pushing ‘highly skilled and experienced’ women out of work. There are also calls to replace dual prescription charges with a single charge for oestrogen and progesterone as part of hormone replacement therapy (HRT).
- The privacy group Big Brother Watch has submitted a complaint to the Information Commissioner’s Office against Southern Co-operative’s ‘Orwellian’ use of facial recognition cameras in 35 of its grocery stores. The system stores images of individuals who have been ‘identified and evidenced’ as an offender, and those banned from the stores. Images are held for a year from the last offence.
In the courts
- In Attorney General of Trinidad and Tobago v Charles (No 2) (Trinidad and Tobago)  UKPC 3, the Judicial Committee of the Privy Council dismissed an appeal regarding the constitutionality of a statuary provision ‘the Bail provision’, passed by the Parliament of the Republic of Trinidad and Tobago. The law provides that bail may not be granted to any person charged with the offence of murder. The two principal issues of the appeal were: (i) whether the Bail provision is an existing law under section 6 of the Constitution, and (ii) whether the Bail provision was a valid law because it was passed under section 13 of the Constitution. The Privy Council agreed with the Court of Appeal that neither common law nor any applicable legislation prohibited the grant of bail in murder cases; the appeal on the existing law issue thus failed. The Privy Council established the nature of the test to be applied under the proviso in section 13 is whether a law is ‘reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual’, citing its recent decision in Suraj and others v Attorney General of Trinidad and Tobago  UKPC 26. The Privy Council concluded that the Bail provision disregarded the nuances of criminal charges, was disproportionate and had been shown not to be reasonably justifiable. Although the Court of Appeal did not apply a proportionality test, the Privy Council judged this as consistent with the reasons given for their conclusion.
- The High Court, in SPM & Anor, R (On the Application Of) v Secretary of State for the Home Department  EWHC 2007 (Admin), dismissed two linked claims for judicial review in relation to the detention of women at Derwentside Immigration Removal Centre (IRC). The Claimants contended that detention at Derwentside was unlawful because of the inadequate provision of in-person legal advice. It was claimed that male IRCs made provision for in-person legal advice, thus resulting in a breach of section 26(9) and section 149(1) of the Equality Act 2010. Referencing R (UNISON) v Lord Chancellor  UKSC 51;  3 WLR 409, the Court rejected the submission that the provision of legal advice at Derwentside via telephone or video-conference instead of in-person, for a limited 6 month period amounted to a denial of effective access to justice. The Court also held that the Defendant’s Equality Impact Assessment (2021) showed due regard to the factors in section 149(1) EA 2010 and other issues raised by the Claimant, thus discharging their Public Sector Equality Duty. Furthermore, any inferior legal services could be justified as proportionate to achieving a legitimate aim of ensuring effective immigration detention. One Claimant, SPM, was granted permission to apply for judicial review on Ground 4: she was unable to gain legal assistance to enforce her Convention rights. The claim for judicial review was, however, dismissed on Grounds 1,2,3,4 and 5(i), with the remaining two Grounds adjourned to a further hearing.
- In Elmeris v The General Prosecutor’s Office, Republic of Latvia  EWHC 2002 (Admin), the High Court dismissed an appeal against an extradition order concerning a European Arrest Warrant. The primary issue in the appeal concerned whether the prison regime in Latvia could provide safe conditions for the appellant’s detention given his status as a police informant. The appeal failed on Ground 1 (relying on articles 2 and 3 of ECHR), and Ground 2 (relying on article 8). The District Judge held that the state had taken reasonable measures to provide the necessary protection for the appellant, as established in R (Bagdanavicius) v Secretary of State for Home Department  UKHL 38. In light of this, the District Judge applied the ‘balancing sheet’ of “’pros and cons’”, relying upon Polish and Slovakian Judicial Authorities v. Celinski and Others  EWHC 1274 (Admin). The Court held that the District Judge’s decision that the balance fell in favour of extradition was a model judgement.
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