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Fighting in Gaza paused this weekend, as Hamas and Israel agreed to a temporary, four-day reprieve. Twenty-six hostages have been released by Hamas and 39 Palestinian detainees held in pre-trial detention have been allowed to return to the West Bank. Under the terms of the agreement negotiated by Qatar, a total of 50 Israeli hostages and 150 Palestinian detainees are meant to be exchanged between the parties. The temporary pause in fighting has also allowed much-needed humanitarian assistance and fuel to reach the Gaza strip.
The Covid-19 Inquiry heard evidence this week from Sir Patrick Vallance (former Government Chief Scientific Adviser), Professor Sir Chris Whitty (Chief Medical Officer for England) and Professor Sir Jonathan Van-Tam (former Deputy Chief Medical Officer for England). In his statement, Sir Patrick Vallance said the Government’s scientific advisers were not consulted on Rishi Sunak’s Eat Out to Help Out scheme and ‘didn’t see it before it was announced.’ This undermines written comments made by Rishi Sunak to the Inquiry, where he said that no one raised concerns with him about the policy. Meanwhile, Sir Chris Whitty said in March 2020, ministers mistakenly understood ‘herd immunity’ to be a government policy objective, and he tried to stop the idea from being discussed publicly because herd immunity would have been ‘inconceivable.’ The inquiry will hear further evidence this coming week.
Meanwhile, Ian Fry, the UN’s Special Rapporteur on the promotion and protection of human rights in the context of climate change, has recently condemned the jail sentences for two Just Stop Oil protesters who scaled a bridge on the Dartford Crossing last October. The activists were given two and three year prison sentences for causing a public nuisance, and were refused permission to appeal to the Supreme Court on the basis that their sentences met the ‘legitimate aim’ of deterring others from similar offending. Ian Fry raised concerns about the length of the activist’s sentences, and the political flow-on effect the sentences could have on activists expressing concerns about the environmental crisis ‘and the impacts of climate change on human rights and on future generations’. Fry said the new Public Order Act was a ‘direct attack on the right to the freedom of peaceful assembly.’ There has not been any response from the Government.
In other news
The Information Commissioner’s Office (ICO) said this week that some companies are not giving users ‘fair choice’ about the use of cookies. Cookies are small files that store on your computer and collect analytical data about website usage. They are often used to personalise ads based on a user’s browsing history. The law regulating the use of cookies (the Privacy and Electronic Communications Regulations) will be altered by the proposed Data Protection and Digital Information Bill, which is due its third reading in the House of Commons on 29 November 2023. Under the proposed reforms, some information – for improving website service or security – will be collected without consent, resulting in fewer ‘pop-ups’ requesting the user consent to cookies. The ICO has not yet named the companies it thinks are falling short of current guidance, but will provide an update in January.
Meanwhile, the National Women’s Prisons Health and Social Care Review was published this week. Established in 2021, the Review is intended to improve health and social care outcomes for women in prison and upon their release. Conducting a review of the 12 women’s prisons in England, the Review found healthcare across women’s prisons to be ‘inconsistent’ and not always ‘gender specific’ or sensitive to women with protected characteristics. It suggests ‘fabric improvements’ across the women’s estate should be made.
Finally, the independent review into Lancashire Police’s handling of Nicola Bulley’s death was also released this week. Bulley went missing in January, and was found three weeks after her disappearance in the River Wyre. Amongst other findings, the report says Lancashire Police should have been better prepared to communicate sensitive medical information about Bulley in a more ‘carefully constructed manner’.
In the Courts
The “Bille and Ogale Group Litigation”. Mrs Justice May handed down the latest judgement in the ongoing litigation between communities and individuals of the Niger Delta, and the oil giant, Shell. The case concerns oil contamination affecting two regions of the Niger Delta – the Bille and Ogale regions. In her judgement, Mrs Justice May held the claimants could bring new causes of action under the African Charter and Nigerian Constitution, which recognise ‘as a fundamental right the right to a clean and healthy environment’. There is no limitation period for human rights claims brought under the Nigerian Constitutional framework. Mrs Justice May also refused the Defendant’s application to strike out the claims. The case continues.
In Independent Workers Union of Great Britain (“IWGB”) v Central Arbitration Committee (“CAC”) and another [2023] UKSC 43the Supreme Court held that Deliveroo drivers are not in an employed relationship for the purposes of Article 11 ECHR (freedom of assembly and association). The case concerned Deliveroo riders in London who became members of the IWGB and sought formal recognition of the Union by Deliveroo for collective bargaining on behalf of Deliveroo drivers in Camden and Kentish Town. The Supreme Court stated that the right to form a trade union arises in the context of an employment relationship. Applying this to the facts of the case, the CAC rightly found there was no employment relationship between Deliveroo and its riders, as the riders can appoint a substitute to take their job, can work or not as convenient to them, and are not prevented from working for Deliveroo’s competitors. Thus, in this case, the riders are unable to rely on the trade union rights conferred by Article 11. The appeal was dismissed.
This was an appeal by a doctor against a decision of the medical practitioners’ tribunal that he was guilty of misconduct. He also appealed against the tribunal’s decision to suspend his registration for six months.
Factual and legal background
The appellant (“A”) is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. He had been working as a locum consultant surgeon at the North Manchester Hospital NHS Trust between April and October 2020. This was during the Covid-19 Pandemic and included the early stages of lockdown imposed by the Government. A appeared on a number of YouTube videos voicing his doubts about the severity of the COVID-19 pandemic. The gravamen of the allegations agains him was that he had used his position as a doctor to promote his opinions and that his actions were “contrary to widely accepted medical opinion” and had undermined public confidence in the medical profession.
This is what he is said to have alleged on the You Tube platform:
a. the Sars-CoV-2 virus and/or Covid-19 disease do not exist or words to that effect; b. the Covid 19 pandemic was a conspiracy brought by the United Kingdom, Israel and America or words to that effect; c. the Covid-19 pandemic was a multibillion scam which was being manipulated for the benefit of: i. Bill Gates; ii. pharmaceutical companies; iii. the John Hopkins Medical Institute of Massachusetts; iv. the World Health Organisation, or words to that effect; d. the Covid-19 pandemic was being used to impose a new world order or words to that effect; e. the Sars-CoV-2 virus was made as part of a wider global conspiracy or words to that effect.
a. undermined public health, and/or; b. were contrary to widely accepted medical opinion, and/or; c. undermined public confidence in the medical profession.
When criticised about these activities, A undertook to remove the videos, but failed to do so.
Importantly, the GMC and the Tribunal considered that A’s opinions on mask wearing and the discharge of elderly patients from hospital might have been controversial, but that they remained within the domain of freedom of expression for doctors as well as the wider public. (My italics. The jury is still out on mask wearing, and the doctor in this case was rightly free to opine on their efficacy).
The problem was his pronouncements on social media that the virus was a hoax and did not exist, and his promotion of conspiracy theories suggesting that vaccines were in development for the deliberate harm or manipulation of the public
The GMC considered that A was guilty of misconduct and demonstrated impairment of his fitness to practise. It referred to the GMC’s “Good Medical Practice” and its guidance on “Doctors’ use of social media” and concluded that immediate suspension of D’s registration was appropriate.
Before the Tribunal, the GMC argued that A had used his position as a doctor in the UK to promote his opinions.
The gravity of the impact of the coronavirus and Covid-19 on public health was being explained on a daily basis to the public and disseminated to medical professionals. The general public was required to comply with the restrictions and the messages were provided to set out the rationale for the restrictions and the reasons compliance was required. …In the Tribunal’s view they ran counter to the public health messages being disseminated at the time.”
…”In the Tribunal’s view, and in the context of the status of the pandemic at the time, hearing such opinions expressed by an NHS consultant surgeon would, on the balance of probabilities, have the effect of undermining public health. One of the key government messages at the time was that compliance with restrictions [were] required to ‘Protect the NHS’.
The Tribunal considered that an NHS consultant asserting as fact such statements of the kind as set out above undermined important public health messages.
A submitted that (1) the tribunal’s decisions did not meet the Article 10 tests of necessity or proportionality; (2) the GMC’s guidance did not meet the Article 10(2) “prescribed by law” condition; (3) suspension was disproportionate and inappropriate, particularly given the 18-month period of successive interim suspension orders.
Appeal to the High Court
The grounds of appeal focussed primarily on whether the Tribunal’s decisions were consistent with A’s article 10 rights. Ground 1 was that the conclusions on misconduct and impairment were contrary to article 10(1) because they give rise to an interference with article 10 rights that was not “prescribed by law” that, for that reason alone, did not meet the requirements laid down within article 10(2) and is unlawful.
Ground 2 was that, in any event, the conclusions on misconduct and impairment were a disproportionate interference with A’s rights under article 10(1). Grounds 3 and 4 were aspects of Ground 2. The former was that the Tribunal was wrong to conclude that expressing views “outside widely accepted medical opinion” either amounted to misconduct or was capable of providing justification for interference with A’s right to freedom of expression. The latter was that there was no evidence to support a conclusion that what A said damaged the reputation of the medical profession. This too, it was submitted, goes to whether the conclusions of misconduct, impairment, and the penalty imposed could be proportionate interferences with A’s Convention rights. Ground 5 was that the decisions to impose a final order for suspension and to make an immediate order suspending Mr Adil pending any appeal were disproportionate in that each failed to give sufficient weight to mitigating or compensating circumstances.
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] UKSC 42
The Government’s flagship policy of removing individual asylum seekers to Rwanda for their claims to be decided under the Rwandan asylum system that was announced on 14th April 2022 has been found to be unlawful by a unanimous Supreme Court.
The Claimants were 10 individual asylum-seekers who entered the UK irregularly in small boats, together with one charity, Asylum Aid. There were also several interveners to the case, including the UN High Commissioner for Refugees (UNHCR) (whose counsel team was led by Angus McCullough KC of 1 Crown Office Row). The Home Secretary (whose counsel included Neil Sheldon KC and Natasha Barnes of 1 Crown Office Row) was the Defendant.
In December 2022, the Divisional Court (Lewis LJ and Swift J) dismissed the general challenge to the policy, as discussed here. But in June, the Court of Appeal, by a 2-1 majority (Sir Geoffrey Vos MR and Underhill LJ) found that the policy was unlawful, as discussed here.
The Supreme Court (Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lord Briggs and Lord Sales), in a judgment jointly authored by Lord Reed and Lord Lloyd-Jones, has now held unanimously that the policy is unlawful on the basis that there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (forcible return) to their country of origin if they are removed to Rwanda.
As Israel’s ground invasion of Gaza begins, commentators and key global organisations are assessing whether international law is being broken by either side in the conflict. The UN said as early as 10th October that both Hamas and the Israeli military may have committed war crimes and that it is gathering evidence for potential prosecutions. Hamas’ terrorist attack of 7th October, which killed hundreds of noncombatants and abducted others for use as human shields and hostages, has already been labelled a crime under international humanitarian law. Meanwhile, Israel’s siege of Gaza, which includes shutting down food, water and electricity supplies and preventing humanitarian relief, may constitute the crime of collective punishment, according to the UN and the International Committee of the Red Cross. Karim Khan, the British barrister who currently acts as the ICC prosecutor, has said the ICC will pursue investigations into the 7th October attack as well as Israel’s activities in Gaza and the West Bank.
Donald Trump’s sons have taken the stand in their father’s fraud trial in New York. This case concerns the Trump family’s property business, and the prosecution hold that members of the family including Eric and Donald Trump Jr falsely inflated its finances and falsified records. Both sons of the property magnate denied wrongdoing and instead suggested an accountancy firm were to blame, with Trump Jr remarking in testimony that ‘I leave it to my accountants.’ Eric Trump was confronted with email evidence that, despite his assertions, he was in fact closely involved with the construction of the company’s financial statements. The prosecution are seeking a fine of $250m and a ban on Donald Trump and his adult sons doing business in the state.
The Isle of Man Parliament has progressed an assisted-dying legalisation bill. The private members bill was brought by Alex Allinson MHK (Member of the House of Keys), who labelled the proposal a move towards “compassion, choice, and autonomy,” while other MHKs spoke against the bill on the grounds that safeguards against coercion would be difficult to put in place. The bill has it that those eligible would have to conform to several criteria: terminally-ill, over the age of 18, resident on the Isle of Man for at least 12 months, and to have the legal capacity of make the decision and a “clear and settled intention to end their life.” Rob Callister MHK raised the concern that the island become a “death tourism” hotspot, should the bill be passed with its current residency minimum. The campaign group Dignity in Dying has called for the central government in Westminster to follow suit, the Royal College of Surgeons having recently withdrawn its opposition to the proposal.
In other news
The chair of the Bar Council has proposed a solution to the over-use of Strategic Litigation Against Public Participation (SLAPP). SLAPPs typically involve a powerful individual or organisation targeting financially-weaker journalists or publishers with the threat of bringing onerous legal actions. They have been the subject of much public criticism lately, and are described as undermining the democratic principles of free speech and the rule of law. Nick Vineall KC has suggested that those who cynically pursue claims in order to shut down legitimate criticism and public debate should be liable in damages for acting contrary to the public interest. “The public interest is damaged by not having access to information which should never have been restrained, while the reputation of the claimant is unjustifiably protected for a period because something which ought to have been said about them is not said for a period of time, and sometimes of course forever.” Speaking at the IBA conference in Paris, Vineall made a comparison to the practice of applicants for injunctions accepting an undertaking to pay damages in case their claim turns out to be unjustified and the injunction causes harm to the defendant. Listen to our interview with Greg Callus on the subject of SLAPPs on Law Pod UK here.
A leading thinktank has warned that Britain’s public services are stuck in a “doom loop” of recurrent crises as a result of government’s short-term planning. The Institute for Government said that, due to prioritising short-term goals over long-term solutions, underfunding public services, and reversing policy decisions within short periods of time, the British state is underperforming across a range of public services and organisations. “The result is crumbling schools, NHS computers that don’t turn on, and not enough prison cells to house prisoners.” The report cites the crown court backlog, standing in June at a record high of 64,709 cases, and concludes the prison system is “at bursting point” due to over-crowding and under-staffing.
The Scottish government has released a legislative proposal that would give ministers the power to assess and ‘remediate’ (repair or remove) buildings with unsafe cladding without owners’ consent and to evacuate the occupants of unsafe buildings. The Housing (Cladding Remediation) Bill creates a new offence for obstructing or failing to assist with assessment, and introduces the concept of a Scottish ‘responsible developers’ scheme, which would encourage developers to fund remediation work.
In the courts
In Scottish Association of Landlords v Lord Advocate [2023] CSOH 76, the Scottish Court of Session determined that the Cost of Living (Tenant Protection) (Scotland) Act 2022 did not disproportionately interfere with article 1 of the ECHR protocol 1, which states that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The court held that the Scottish government’s assessment of proportionality, in bringing a bill that caps rent and places a moratorium on evictions in private residential tenancies, did not proceed manifestly without reasonable foundation.
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