The Weekly Round-up: Arbitration discrimination, sanctions against Iran, and HS2 injunction

26 September 2022 by Matthew Johnson

In the news

The Law Commission has proposed to ban discrimination in the appointment of arbitrators. At present, women are still ‘around three times less likely to be appointed as arbitrators than men’. The proposed reform would amend the Arbitration Act 1996 so that any agreement in relation to proposed arbitrator’s protected characteristics should be unenforceable. At present, many arbitration agreements require a ‘commercial man’ or similar. This situation received judicial treatment in 2011 in the case of Hashwani v Jivraj, where it was decided in the UKSC that since an arbitrator was not appointed under a contract of employment, employment law rules against discrimination did not apply.  

Barristers on strike have had the first talk with the Justice Secretary, the newly appointed Brandon Lewis. The chairman of the Criminal Bar Association, Kirsty Brimelow KC, said the group was willing to negotiate, having taken the decision to strike following repeated requests to meet with Lewis’ predecessor, Dominic Raab, to no avail. The Justice Secretary described the talks as a ‘constructive initial meeting’ and urged the CBA to stop the strike while negotiations were underway. The CBA is still asking for a 25% rise in pay for legal aid in defence cases.

In other news

• The EU and US consider further sanctions on Iran over the attempt to supress demonstrations over the death of 22 year old Mahsa Amini. Demonstrators have called for greater support from the West, as the Iranian foreign ministry condemned the US for trying to help those bypassing the Iranian internet shutdown. The EU is also looking at how it can encourage more software campaigners to sign the ‘Copenhagen pledge on tech for democracy’, a statement on how to keep internet open and free.

• There are urgent calls from experts and campaigners for a review into the sentencing of pregnant women due to health risks of giving birth in jail. Evidence has suggested that women giving birth in jail suffer severe stress and are more likely to have a stillbirth. In a letter to the Justice Secretary, campaigners wrote that the Sentencing Council ‘has the power to prevent the senseless, needless harm that the prison system causes to pregnant women’.

In the courts

• In HS2 v Four Categories of Persons Unknown [2022] EWHC 2369 (KB), the High Court granted an injunction prohibiting protestors from entering onto or interfering with land proposed for HS2. The claimant argued that unlawful protests had hindered construction of the route, committing offences of trespass and nuisance. Knowles J was satisfied that, despite the large tracts of land being affected, there has been violence, criminality, and risk to the life of activists and staff, which would continue unless restrained [at 161]. The injunction is, however, interim rather than final, and sought to strike a balance between the rights of protestors and the interests of HS2, including the national economy [at 216].

• In ALO v Secretary of State for the Home Department [2022] EWHC 2380 (Admin), the High Court accepted a claim for judicial review brought by an Afghan family against the Home Secretary’s decision to reject their application for limited leave to remain in the UK. The grounds for review were that the Home Secretary acted unlawfully: (i) by failing to give reasons; (ii) by not giving the opportunity to make representations prior to the decision; (iii) because the decision was irrational; (iv) because some of the applications were automatically refused; and (v) because the decision failed to consider relevant matters. The only ground to succeed was ground (iv) on the basis that the steps taken by the Home Secretary were not sufficient to discharge the obligation to ensure the factual basis of a decision [at 31]. This was because the failure was both obvious and material, and so crossed the high threshold for claimants in such circumstances.  

• In Timson v Secretary of State for Work and Pensions [2022] EWHC 2392 (Admin), the High Court partly accepted a claim for judicial review by a disabled woman against the DWP over automatic benefit deductions. The claimant was a former police officer who challenged the decision to allow water and energy forms to drawn down up to 25% of monthly benefit incomes without undertaking any checks. Critically, because the officials failed to provide any opportunity to challenge the deductions, they could not claim to be fairly deciding whether the deductions were in the claimant’s interest.

Elsewhere on the UKHRB

• On Law Pod UK, Jim Duffy talks to Clare Cibarowska and Richard Ager about how the family court deals with allegations of ‘alienating behaviour’ by one parent against another.