The Weekly Round-up: Anti-strike laws, war crimes, and gender recognition certificates

16 January 2023 by Matthew Johnson

In the news

Grant Shapps, the Business Secretary, has set out the anti-strike laws that are planned to enforce minimum levels of service during strike action. Under the proposals, some employees would be required to work during a strike and could be fired if they refuse. It would be for the ministers to set the minimum levels of service, and there would be no automatic protection from unfair dismissal in breaching these levels. Unions have criticised the bill for being ‘undemocratic, unworkable, and almost certainly illegal’, and Labour have stated it would repeal the legislation if it wins the next general election. The bill has been defended by Shapps, who states it is aimed to protect lives and livelihoods.

The investigation into alleged war crimes in Ukraine will be considered in a major international meeting to be held in London in March. In attendance will be the prosecutor of the International Criminal Court, Karim Khan, in order to inform about the court’s work in investigating war crimes. The meeting comes as Putin continues to target crucial energy infrastructure as he destroys central heating supplies in the heart of winter. Dominic Raab has stated that ‘Russian forces should know they cannot act with impunity and we will back Ukraine until justice is served’; the meeting is designed to determine how to further assist the ICC in bringing that justice.

In other news

• The government has accepted recommendations designed to protect human rights in health and social care settings. The Joint Committee on Human Rights made several recommendations covering the provision of medical and personal care, ongoing concerns about visiting arrangements, the complaint process for when things go wrong, and the coverage of protections of the Human Rights Act 1998.

• The Law Society has urged Dominic Raab to either increase the criminal legal aid fees or face judicial review. The Society’s president, Lubna Shuja, stated that Raab’s decision not to remunerate solicitors by the bare minimum 15% recommended by the Bellamy review is unlawful, as is the decision not to take action to address the risk of local market failure. Such decisions are, allegedly, inconsistent with the constitutional right to access to justice.

• Campaigners have condemned the government’s plan to update the list of countries whose gender recognition certificates are automatically recognised. Kemi Badenoch suggested that recognition would be withdrawn from places ‘where there is a clear indication that the country now no longer has a system at least as rigorous as those in the Gender Recognition Act 2004’. The list provides that an applicant with legal gender recognition from an approved country is not required to provide, for instance, medical reports when applying for a gender recognition certificate in the UK. 

In the courts

• In Friends of the Earth Ltd v Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14, the Court of Appeal dismissed an appeal concerned with whether the government acted lawfully in approving UKEF’s investment in a liquified natural gas project in Mozambique. The appeal contended that: (i) the government was required to adopt a view of the Paris Agreement that was more than merely tenable; (ii) there was no rational basis on which the decision could be concluded to be compatible with the Paris Agreement; and (iii) the government failed in their duty to obtain a quantification of the project’s emissions. The appeal failed primarily on the constitutional law principle of dualism: the court cannot and should not second guess the executive’s decision-making in the international law arena where there is no domestic legal precedent or guidance [40 vii]. So long as it was tenable for UKEF to reach the view that the investment aligned with obligations under the Paris Agreement, which it was held to be, the court refused to hold that it made an error in law.

• In Atanasov v Bulgaria [2023] EWHC 18 (Admin), the High Court dismissed an appeal against an extradition order that was challenged on the ground that the district judge erred in concluding that the extradition of the appellant was compatible with his and his family’s Article 8 Convention Rights. The appellant’s extradition was sought pursuant to an international arrest warrant issued in Bulgaria. In relation to an alleged error made by the district judge, the court found that there was no misdirection that, because the appellant was found to be a fugitive, the delay could not diminish the public interest. Rather, it was held that it did not do so [69]. In the round, it was held that the district judge was not obliged to have weighed any factor so significantly differently as to make their decision on proportionality for Article 8 wrong.

• In Spotlight on Corrupton v The Information Commissioner & The British Business Bank, [2023] UKFTT 7 (GRC), the First Tier Tribunal ruled that the public interest in preventing prejudice to commercial interests trumps the public interest in publishing details of recipients of emergency Covid loans. The Tribunal dismissed two appeals against the information commissioner’s decision not to require the British Business Bank to identify all the businesses that had taken out loans under four government schemes during the pandemic. It was held that while there is an ‘extremely high public interest in transparency and scrutiny of these schemes’, the release of all the names would not add to this public interest.