The Weekly Round-up: Cumbria coal mine quashed, Finucane public inquiry announced, fire and rehire practices in the Supreme Court
16 September 2024
In UK news
The Secretary of State for Northern Ireland, Hilary Benn, has announced a public inquiry into the killing of Pat Finucane. Mr Finucane was a solicitor working in Belfast who had represented high profile IRA prisoners. He was killed by loyalist paramilitaries from the Ulster Defence Association in 1989 and a previous review by Rt Hon Sir Desmond de Silva QC found “frankly shocking levels of collusion” between the paramilitaries and state agents. In 2019, a Supreme Court judgment found that the British government failed to discharge its obligations to investigate state-caused deaths under article 2 ECHR through the da Silva Review which, among other things, did not have the power to call witnesses. Geraldine Finucane, Mr Finucane’s widow, commented in a statement: “An independent, statutory public inquiry is and was the only way to bring the whole truth behind the murder of Pat Finucane into the light of day”. The Secretary of State has said: “This government takes our human rights obligations, and our responsibilities towards victims and survivors of the Troubles, extremely seriously”.
The Courts and Tribunals Judiciary has just published the newest edition of the Administrative Court Judicial Review Guide. The guide covers all the stages of judicial review proceedings, and is available here, for the perusal of practising and aspiring lawyers (as well as interested others).
In international news
Tedros Adhanom Ghebreyesus, the director-general of the World Health Organisation has criticised the inadequate international response to the conflict in Sudan. Since April 2023, over 20,000 have been killed and over 10 million people are displaced, while 25.6 million people (around half of Sudan’s population) are facing high levels of food insecurity. Ghebreyesus has called for an immediate ceasefire with a lasting political solution as well as a scale up in the delivery of humanitarian aid. Human Rights Watch have published a report about the flow of foreign arms which are sustaining the fighting. Human Rights Watch have traced the weapons to China, Russia, Iran, Serbia and the United Arab Emirates, and argue that weapons such as armed drones, rocket launchers and anti-tank missiles have been used in attacks against civilians. Human Rights Watch is calling for an arms embargo for the entirety of Sudan, and a sanction regime to punish those violating the existing arms embargo on Darfur.
Mélanie Joly, the Canadian Foreign Affairs Minister has announced the suspension of 30 licences for arms sales to Israel, in addition to blocking a contract with the US government to send ammunition produced in Quebec to the Israeli Defence Forces (IDF). The UK has also suspended 30 out of 350 arms export licences to Israel, stating that “there does exist a clear risk that they might be used to commit or facilitate a serious violation of international humanitarian law”. NGO Global Action Legal Network, partnering with Palestinian NGO Al-Haq, is in the process of challenging continued UK weapons exports to Israel.
In the courts
The High Court has quashed the grant of planning permission for a new coal mine at Whitehaven, Cumbria. The Secretary of State had previously admitted an error of law as the downstream emissions caused by the inevitable burning of the extracted coal were not factored into the Environmental Impact Assessment, thus the appeal was litigated by the mine owner West Cumbria Mining. The High Court did not accept the argument that coal mined in Cumbria would substitute coal extracted elsewhere to meet market demand, or the argument that the mine would have a “net zero” impact because West Cumbria Mining pledged to purchase carbon credits.
A contractual dispute between Tesco, the Union of Shop Distributive and Allied Workers, and a small group of Tesco’s employees has shone a new light on controversial “fire and rehire” practices. In 2007, Tesco closed down some of its distribution centres and opened new ones in new locations. To persuade staff to relocate they offered enhanced pay referred to as “retained pay”. Employees were told that the retained pay was permanent. In January 2021, Tesco decided to “phase out” the retained pay in exchange for a lump sum, and told employees that if they did not did not accept this change their contracts of employment would be terminated and they would be rehired on new contracts with the retained pay removed. The Supreme Court held that there was an implied term, required for business efficacy, that Tesco could not terminate the employees’ contracts to rehire them without the retained pay. The mutual intention of the parties was that the retained pay would serve as an inducement for experienced workers to relocate and this would be undermined if Tesco had the right to unilaterally remove the retained pay at any time for its business purposes.
