Weekly Round-up: Russian cease fire, ‘minimum service levels’ legislation, and a junior doctors’ strike

9 January 2023 by Lucy Stock

In the news:

• President Putin has ordered his troops in Ukraine to cease fire for 36 hours over Orthodox Christmas and has urged Ukrainian forces to do the same. However, the move was rejected by Kyiv, and the US state department, as a “cynical trap” and propaganda move. Putin announced the truce, to begin at noon 6 January 2023, after a call by Patriarch Kirill, leader of the Russian Orthodox Church.

• Ministers announced legislation that looks to enforce “minimum service levels” in six sectors, including the health service, rail, education, fire and border security. Unions that refuse to do so will face injunctions and could be sued for damages. Employers will be able to sue unions, and dismiss union members who are told to work under the minimum service requirement but refuse to do so. Prime minister Rishi Sunak, however, vetoed more far-reaching measures that would have increased the threshold for strike ballots, doubled the notice for industrial action from two weeks to a month, and banned ambulance workers from striking.

• The British Medical Association have informed the government that junior doctors will strike for 72 hours in March if the action is supported in a ballot opening next week. Doctors would not provide emergency care during the strike. The union, which has 45,000 junior doctor members, wants their real-terms pay restored to 2008 levels: a 26.1 per cent increase. The scale of the strike proposed by the BMA is larger than those to be held by nurses and ambulance staff, and will inflame tensions between the unions and the government. The Royal College of Nursing strikes are for 12 hours at a time, and the ambulance unions are holding 24-hour strikes.

In other news:

• Hong Kong’s chief executive John Lee, asked the National People’s Congress standing committee to rule on whether foreign lawyers should be allowed to appear in cases involving crimes under the national security laws enacted by China’s Parliament. Beijing announced that it would be for Lee as chief executive, or the committee on safeguarding national security which he chairs, to decide. Their decisions would not be open to judicial review. The point was raised in relation to the case of the entrepreneur Jimmy Lai, who in August 2020 was arrested for alleged collusion with foreign forces and wishes to be represented by British barrister Tim Owens.

• On 29 December, members of the G7 group and the EU issued a joint statement urging the Taliban to reverse their decision to bar Afghan women from working for non-governmental organisations. Martin Griffiths, the head of UN humanitarian operations, is to fly to Kabul to try to resolve the crisis caused by the sudden decision which prevents women working for NGO aid groups. The UN humanitarian coordinator for Afghanistan, Ramiz Alakbarov, had already indicated that aid programmes were being compromised. There is, however, suggestions that the ban was not being implemented uniformly in every region.

• Duncan Lewis solicitors has launched a legal challenge calling for a public inquiry regarding treatment of asylum seekers at the Kent processing centre for small boat arrivals at Manston. Claims have emerged of “systemic” ill treatment including allegations of assault and staff involvement in abuse. Legislation was recently changed by the Home Office; from 5 January 2023 it is lawful to hold people for 96 hours at sites such as Manston rather than the previous 24 hour limit.

In the courts:

• On 21 December 2022, the High Court handed down judgement CB, R. (On the Application Of) v The Secretary of State for the Home Department [2022] EWHC 3329 (Admin). The case concerned the rate of weekly cash payment in respect of the essential living needs of persons to whom the SSHD has decided to provide asylum support pursuant to regulation 2 of the Asylum Support Regulations (“the Uprating Decision”). The Claimant relied upon three grounds for Judicial Review: (i) the Uprating Decision was a breach of statutory authority- regulation 2 of the Asylum Support Regulations- and the SSHD’s duty to ensure that asylum support can maintain a dignified standard of living; (ii) the SSHD failed to undertake a sufficient inquiry to enable her to make an informed and rational decision as to the rate required to meet the minimum standard for asylum living needs; and (iii) the SSHD failed to take consultation in relation to their new approach for determining the rate of asylum support. The Court concluded that the SSHD owes an ongoing duty to asylum seekers; the Consumer Price Index, published by the Office for National Statistics, and Bank of England forecasts, which had not been reviewed by the SSHD, were plainly relevant; and that an interim review had been undertaken by officials and was put for a decision. The SSHD’s passivity in response to the review was unlawful. The Court was not persuaded by the Second or Third Grounds, as the SSHD had undertaken a reasonably sufficient inquiry as to the merits of Existing Methodology and there is no freestanding branch of public law duties of consultation. The claim thus succeeded on Ground 1. The Court was satisfied that it was necessary and appropriate for this Court to make a Mandatory Order that the SSHD must implement a change in the rate of the weekly cash payment which is no lower than the agreed outcome of the 2022 Annual Review.

• On 22 December 2022 the High Court dismissed a claim for judicial review in Isherwood & Ors, R. (On the Application Of) v The Welsh Ministers [2022] EWHC 3331 (Admin). The Claimants objected on religious and/or philosophical grounds to the introduction of Relationships and Sexuality Education (‘RSE’) as a mandatory element of the new curricula for maintained schools in Wales, under the Curriculum and Assessment (Wales) Act 2021, without a ‘right of excusal’ on four grounds. First, the Claimants contended that the common law provides a fundamental, constitutional parental right of excusal which was not removed by the 2021 Act and had existed since before the enactment of the first education Act, the Elementary Education Act 1870 (‘the 1870 Act’). The 2021 Act, however, expressly requires the teaching and learning to be secured for “each pupil” to encompass RSE (s.29(2)); and expressly permits limited exceptions to be made. The Court thus agreed with the submission of the Welsh Ministers that these deliberate legislative choices would be irreconcilable with the continued existence of any constitutional right of excusal. In the alternative, on Grounds 2 and 3, the Claimants submitted that the absence of a parental right of excusal is in breach of Article 2 Protocol 1 (“A2P1”). The Court held, however, that the Act was clearly capable of being implemented in a way which was fully compatible with the second sentence of A2P1, and any argument based on the first sentence of A2P1 failed, being predicated upon the success of the complaint regarding the second sentence. On Ground 4, the Court was persuaded by the Defendant’s argument that nothing in the Act would inevitably result in teaching that constitutes religious indoctrination. The claim was dismissed on all grounds.

• The High Court handed down judgement in TX, R (On the Application Of) v Adur District Council [2022] EWHC 3340 (Admin) which involved an application for judicial review of Adur Disctrict Council’s housing allocations policy first adopted in 2007.  The Claimant has made three judicial review claims in respect of her application to the Defendant for housing. In these proceedings, the Claimant, a survivor of domestic abuse, asserted that her placement in bands B and C of the four bands available, amounted to indirect discrimination, contrary to section 19 of the Equality Act 2010. In the alternative, she argued that it violated Article 14 of the European Convention on Human Rights (‘ECHR’), when read with Article 3 and/or Article 8. The Claimant invited the Court to: (i) declare that the Defendant’s policy unlawfully discriminated against those who are fleeing domestic abuse; and (ii) quash the decision made by the Defendant on 13 October 2021, which placed her in a sub-category within Band C, and remit it for reconsideration. The main issue of the case concerned paragraph 3.3.3(d) of the Defendant’s Allocation Policy. With reference to Thlimmenos v Greece (2000) 31 EHRR 12, the Court rejected the Defendant’s argument that the Claimant was given preferential treatment as she has been exempted from the residency requirement. This advantage did not remedy indirect discrimination. The Court held that the provision in question in fact placed women at a disadvantage when compared to men, as they are significantly more likely to be the victims of domestic abuse and, as a result, have to move to another area. The Court was not persuaded that the Defendant had specifically considered the effect of the reduction in banding on women fleeing domestic abuse and had not conducted a sufficient proportionality exercise. On account of this, the Court held there was no need to determine the alternative argument based on Articles 3, 8, and 14 of the ECHR.

Elsewhere on the UKHRB:

• In the latest episode of Law Pod UK Emma-Louise Fenelon talks to Margaret Bowron KC of 1 Crown Office Row about the perils and pitfalls of presenting expert evidence in court.