The Weekly-Round up: Scottish referendums, cohabitation rights, and up-skirting crimes

22 August 2022 by Lucy Stock

In the news

• The UK government has submitted its argument in the case which may settle whether Members of Scottish Parliament could legislate for a vote on Scottish independence without Westminster’s backing. The submission from the Advocate General precedes a full hearing on 11 and 12 October when oral arguments will be heard. The Supreme Court will rule on whether Holyrood alone has the power to hold an independence vote, which First Minister Nicola Sturgeon wants to hold on 19 October 2023. Last month, the Scottish government published its own case, arguing the referendum is ‘advisory’ and would have no legal effect on the union.

• The House of Commons Women and Equalities Committee published a report on 4 August recommending the government should improve legal protections for unmarried couples by introducing an opt-out cohabitation scheme proposed by the Law Commission in 2007. The scheme aims to protect eligible cohabitants who are economically vulnerable, preserve individual autonomy, maintain a distinction with marriage and civil partnership, and provide certainty about who qualifies as a cohabitant. The committee said the government should commit to publishing draft legislation for scrutiny in the 2023-24 parliamentary session.

• On 10 August, Suella Braverman delivered a speech for the Policy Exchange’s Judicial Power Project stressing the need for the government to better clarify the scope of fundamental rights. She called to curb the influence of the European Court of Human Rights, citing the ‘intensive standard of proportionality under the Human Rights Act’. The speech dealt with issues including the Equality Act, Single Sex Spaces- specifically in schools- convention rights and illegal migration.

In other news

• The CPS published new legal guidance on 8 August on the prosecution of public order offences. Street harassment such as cyber-flashing, up-skirting or the exposure of genitals in a public place are crimes which can and will be prosecuted the CPS has stressed. This follows a stark report published last year from the All-Party Parliament Group (APPG) for the UN that found although 71 per cent of women in the UK have experienced some form of sexual harassment in a public space, the incident was not reported to the police in 95 per cent of cases.

• International firm Pogust Goodhead confirmed this week it is pursuing action against the Tavistock and Portman NHS Foundation Trust. This follows the closure of the UK’s only dedicated gender identity clinic for children and young people: Tavistock clinic. The Pogust Goodhead clinical negligence claim alleges that young teens were rushed into taking life-altering puberty blockers causing long-term and sometimes irreversible damage. Lawyers leading the claim against the gender identity clinic said there could be as many as 1,000 clients who join the action.

• The CPS have ‘discontinued’ the prosecution of six protesters who attended a vigil for Sarah Everard. The CPS stated that the ‘legal test’ for prosecution had not been met. One of the six, Dania Al-Obeid, described the decision as ‘victorious’, but stated that it did not ‘hold the Met accountable for their actions at the vigil’ or their decision to ‘criminalise’ protestors. She is now taking legal action against the Met over its policing of the vigil and conduct towards her.

In the courts

• On 11 August, the Court of Appeal dismissed an application for judicial review in Iyieke, R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1147. The main legal issue of this appeal concerned the proper construction of paragraph 276B of the Immigration Rules, which relates to the grant of Indefinite Leave to Remain (‘ILR’) after ‘10 years continuous lawful residence’. The Court was not convinced by the Appellant’s submission that although there was a period of Mr Iyieke’s stay in the United Kingdom when he did not have leave, this was ‘book-ended’ by periods of leave and so should count towards the 10 years continuous lawful residence pursuant to the provisions of paragraph 276B(v)(a) of the Immigration Rules. The Court also addressed submissions made concerning the discretion afforded the Secretary of State to grant ILR, citing R(Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192. The Court held that this did not qualify as a case where direction would be exercised to mitigate the effect of the Immigration Rules, such as in cases of illness or postal failure. Thus, the Court found that Mr Iyieke did not have 10 years continuous lawful residence, and that the Secretary of State had not acted unlawfully in failing to exercise discretion to grant ILR.

• The High Court handed down judgement in Bailey, R (On the Application Of) v Secretary of State for Justice [2022] EWHC 2125 (Admin). The Claimant sought interim relief to prevent new Parole Board rules and connected guidance to report makers from applying at his parole hearing. The Probation Rules of 2019 were amended to prevent any view or recommendation about a prisoner’s suitability for release being expressed or made in any report. Both parties relied upon R (on the application of Hussain) v The Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin) as the test for interim relief which identified the need to establish a real prospect of a permanent injunction being granted at trial, and then ascertain whether the balance of convenience favours the grant of relief. In assessing the balance of convenience concerning the application of the amended rules, the Court refused to grant interim relief, given that public interest strongly favoured keeping these in place. In relation to the guidance to report makers, however, the Court held that the guidance represented an interference with the Board’s ability to govern its own process and act independently of the Secretary of State. The Court found the balance of convenience came down strongly in favour of granting the relief sought. His Honour Judge Bird thus refused to grant interim relief in respect of the amended Parole Board rules, however granted relief in respect of the connected guidance to report makers.

• On 12 August, the High Court dismissed a claim for judicial review in JZ, R (On the Application Of) v The Secretary of State for the Home Department & Ors [2022] EWHC 2156 (Admin). The Claimant (‘JZ’) was a judge in Afghanistan. He sought judicial review of the Defendants’ decision to refuse his application under the Afghan Relocations and Assistance Policy (‘ARAP’). The Claimant submitted that working in a ‘meaningful enabling role alongside HMG’ within the ARAP policy should be interpreted as including those who had made a direct or indirect contribution to the HMG’s mission in Afghanistan. This was reframed to allege a material inconsistency between the decisions in respect of the Claimant and those concerning other judges whose circumstances were not materially different. First, the Court highlighted that inconsistency should not to be treated as free-standing grounds for judicial review, as clarified by the Supreme Court in R (Gallaher Group Ltd) v Competitions and Markets Authority [2018] UKSC 25. Crucially, however, the Court held that there were distinguishing factors between JZ and comparator judges, which explained and justified the decision to grant leave to them, under the terms of the ARAP policy, but to refuse it to him.