The Weekly Round-up: Bill of Rights halted, Rwanda defence revealed, and inter-charity disputes

13 September 2022 by Matthew Johnson

In the news

One of the first decisions taken by the new Prime Minister, Liz Truss, has been to halt Dominic Raab’s Bill of Rights plan. The bill would have given legal supremacy to the UK Supreme Court, explicitly entitling it to disregard rulings of the European Court of Human Rights (ECtHR). The bill is now ‘unlikely to progress in its current form’, a Whitehall source of the BBC has expressed, leaving doubt over whether Raab’s attempts to repeal the Human Rights Act 1998 will materialise. Vice President of the Law Society, Lubna Shuja, said that ‘the only smart way to proceed would be to go back to the advice of the independent review it [the Government] commissioned.’

The legal challenge against the Rwanda asylum plan is being heard before the High Court. While the trial is ongoing, and no judgment will be handed down for some time, the Government’s legal arguments defending the plan are now known. Part of the defence advanced by Lord Pannick KC, counsel for the Government, relies on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which confers on ministers the power to send asylum seekers to safe countries. If they are of the opinion the asylum seekers will be safe and not put in danger, the Home Secretary can transfer them to other states. The main hurdle for the Government in this defence will be the UN Refugee Agency’s declaration that Rwanda is an unsafe place for migrants. The Court has asked for a detailed response to this critical point.

In other news

• The trans rights charity, ‘Mermaids’, has brought a legal challenge against the Charity Commission’s decision to award charitable status to the new gay rights organisation ‘LGB Alliance’. In the first time one charity has attempted to strip the charitable status of another charity, the case will centre on distinctions between sex and gender identity, and the legal definitions of sexual orientation. It is to be argued that LGB Alliance is a group set up with the purpose of restricting the rights afforded to transgender people.

• A criminal investigation is underway as a police watchdog confronts the shooting of an unarmed black man, Chris Kaba aged 24. Kaba’s family called for the investigation after he was shot by a specialist firearms officer who is now no longer on operational duties. An automated number plate recognition camera detected the car Kaba was driving as linked to a previous firearms incident, but after a thorough search of the surrounding area no weapon was found at all.

In the courts

• In Harris v Environment Agency [2022] EWHC 2264 (Admin), the High Court found in favour the claimants, Norfolk locals who challenged the Environmental Agency’s (“EA”) refusal to expand the scope of an investigation into the effect of water abstraction on the environment. The claimant’s case was that the EA was in breach of an obligation to avoid the deterioration of protected habitats, and that the decision to not conduct a more expansive investigation was irrational. With the claimants having satisfied the court that water abstraction may be causing the deterioration of protected habitats, it fell to the EA to justify its departure from their obligations. Critically, the EA’s review of abstraction was flawed and no further reviews to address these flaws were undertaken. It was on this basis that the departure was held to be unjustified.

• In Jwanczuk v Secretary of State for Work and Pensions [2022] EWHC 2298 (Admin) the High Court found in favour of the claimant in holding that it was unlawful to deny a bereavement support payment (“BSP”) to the husband of a deceased wife on the grounds that she did not pay national insurance due to a disability preventing her from working. The claimant argued that denying BSP to a surviving spouse violates article 14, read with article 8 and 1 of the ECHR. The defendant argued that the claimant’s late wife was not necessarily unable to work, and so no ECHR violation arises. Mr Justice Kerr found that the denial of BSP treated the claimant in the same way as other people not sharing his status and whose situation is different [85]. The late wife’s disability was a relevant fact, the disregarding of which was an unjustified interference with the claimant’s Convention rights.