The Weekly Round Up: assisted dying, NHRIs defend the ECHR, incidental powers, deprivation of liberty orders, and the benefit cap
23 March 2026
In the news
Scottish assisted dying bill falls while Westminster proposals lag in the House of Lords
Tuesday evening saw the Assisted Dying for Terminally Ill Adults (Scotland) Bill defeated at the last stage of the Holyrood legislative process. After a final debate, Members of the Scottish Parliament voted against the bill by 69 votes to 57, with one abstention. The bill would have allowed some terminally ill patients to be assisted to end their lives. Patients would have been required to make two declarations of their wish for assisted dying and to undergo assessment by two doctors as to their eligibility and freedom from coercion or pressure.
Meanwhile, the House of Lords continues to debate amendments to the Terminally Ill Adults (End of Life) Bill for England and Wales. Owing to the 1,200+ amendments which have been tabled, the bill is now widely expected to run out of time – despite passing the Commons in June 2025. The bill’s proposer, Kim Leadbeater MP, is reported to have said that the House of Lords has ‘signed its own death warrant’ by stalling the legislation.
NHRI joint statement urges UK government not to dilute the ECHR
On Thursday, the UK’s three National Human Rights Institutions (NHRIs) issued an unusual joint statement urging the government to ‘commit to no reduction in rights protections’.
The NHRIs note that the UK government has expressed an intention to ‘re-balance’ and ‘clarify’ the position relating to migration by adopting political declarations on Articles 3 and 8 ECHR. They ask the government to explain how it will ensure that its proposals do not weaken ECHR protections. The statement continues:
‘The erosion of anyone’s rights puts us all at risk; it signals that these shared standards are not guaranteed and that any of our rights could be subject to debate.’
The UK’s NHRIs – the Equality and Human Rights Commission, the Scottish Human Rights Commission, and the Northern Ireland Human Rights Commission – are required to abide by the Paris Principles. These call on them to promote and protect all human rights by acting independently from government.
In the courts
Incidental powers in the Court of Appeal
The Court of Appeal has held by a 2:1 majority that the Home Secretary has an incidental power under the Immigration Act 1971 to withdraw an individual’s indefinite leave to remain (ILR) where this status was granted by clerical error. The case is R (YC) v SSHD [2026] EWCA Civ 285.
The appellant (YC) was a Chinese citizen who travelled to the UK using a fake passport, fleeing debts in China. YC applied for asylum or leave to remain in the UK under Articles 3 and 8 ECHR. He received two decision letters from the Home Office. The first letter granted him ILR. The second letter arrived a month later and purported to grant him limited leave to remain (LLR) until April 2026. It emerged that the first letter had been sent in error – a Home Office staff member had mistakenly selected the wrong letter template.
Dismissing YC’s claim for judicial review, Cobb and Dingemans LJJ relied on R (New London College Ltd) v SSHD [2013] UKSC 51 where the Supreme Court recognised (at [28] and [33]) that the Home Secretary’s express immigration powers are supplemented by incidental administrative powers. On this footing, their Lordships reasoned that the Home Secretary’s power to grant individuals with ILR/LLR under section 3 of the Immigration Act 1971 implied an additional power to promptly reverse a manifest clerical error in doing so ([72]-[75], [93]-[94]).
Dissenting, Elisabeth Laing LJ reasoned (at [85]) that a power to revoke ILR cannot be incidental to the Home Secretary’s power to grant ILR, as the former is the ‘antithesis or negation’ of the latter. However, it is submitted that the antithesis is inexact as the power to revoke only operates where the power to grant has been exercised by mistake. As such, the power to revoke supports the accurate and effective exercise of the power to grant, rather than simply negating it.
Deprivation of liberty and the inherent jurisdiction
In Re T [2026] EWCA Civ 307, the Court of Appeal unanimously held that the High Court had been wrong to refuse to make a deprivation of liberty under its inherent jurisdiction in relation to a 17-year-old in care (T). The court clarified the correct interpretation of section 100(4) of the Children Act 1989 and affirmed guidance in Tameside MBC v C & Ors [2021] EWHC 1814 (Fam) on the ‘best interests’ test for derogating from Article 5 ECHR under para 1(d).
T had been in local authority care since the age of 11 and had been diagnosed with ADHD and autism. In early 2025, he moved to semi-independent accommodation (L house). After a series of incidents where T was violent and threatening towards staff members, T was arrested and charged with assault. During this period, he also harmed himself and damaged furniture. L house decided that they could not keep T unless they were authorised to make arrangements to supervise and restrain him if required. There was no dispute that these measures would amount to a deprivation of T’s liberty under Article 5 ECHR.
The Court of Appeal was unequivocal in concluding that the decision below could not stand. First, by holding, in relation to the criterion under section 100(4)(a), that the desired result could have been achieved through a secure accommodation order under section 25 of the 1989 Act, the judge had failed to take into account the ‘seemingly chronic shortage’ of available places in secure accommodation ([23], [41]). An order under section 25 would also have been contrary to T’s wellbeing as it would have required him to leave L house, where he felt settled and wished to remain ([39], [41]).
Second, in his conclusion that the condition under section 100(4)(b) was not satisfied as it was not likely that T would suffer ‘significant harm’ if the order was not granted, the judge failed to give due weight to the emotional or psychological harm which T would suffer if he had to leave L house. For the purposes of section 100(4)(b), ‘harm’ is not restricted to physical harm ([42] and see section 31(9)).
Finally, where a local authority is seeking an order, by way of the court’s inherent jurisdiction, to impose restrictions on a child that would amount to a deprivation of liberty under Article 5 ECHR, the order may only be granted if it is in the child’s best interests ([28]). The Court of Appeal held that this question must be answered both ‘holistically and realistically’, where necessary taking into account the lack of availability of an alternative course of action ([29], affirming Tameside at [74]). This approach allows for cases in which a lack of resources means that a placement which does not meet all of a child’s welfare needs is still the best option currently available. Thus, the order in the instant proceedings was in T’s best interests because, among other things, no alternative placement was available. If the order was not granted, T would be required to leave L house and become homeless ([45](7)).
ECtHR rejects benefit cap challenge
The ECtHR has dismissed a challenge to the UK government’s failure to exempt lone parents with children under the age of 2 from the benefit cap. The Supreme Court had rejected the domestic human rights challenge by a 5:2 majority in R (DA & Ors) v SSWP, R (DS & Ors) v SSWP [2019] UKSC 21. The case is DA & RA v UK, no. 46692/19, 17 March 2026.
The applicants (DA and RA) were a mother and her child. Between 2017 and 2019, DA was subject to the benefit cap while RA was under the age of 2. An exemption from the cap applied to lone parents who worked at least 16 hours per week. At the same time, free government childcare was provided for children aged between 3 and 4, and certain children aged 2, but not for any children aged under 2.
The applicants’ case was that lone parents with children under the age of 2 should not have been subjected to the cap as it was not feasible for them to work 16 hours per week without being able to access free childcare. They argued that this amounted to unlawful discrimination contrary to Article 14 ECHR read in conjunction with Article 1 of Protocol No. 1 and/or Article 8.
In dismissing the applicants’ challenge, the ECtHR held (at [96]) that the applicants enjoyed a qualifying ‘other status’ and were therefore entitled to protection from discrimination under Article 14. The court further held (at [100]) that the applicants were in a significantly different situation from the generality of those affected by the benefit cap. Nonetheless, applying the ‘manifestly without reasonable foundation’ standard ([104]-[108]), the Court held that the failure to provide an exemption from the cap was not a violation of the ECHR.
In its proportionality assessment, the court highlighted the following factors (at [111]-[114]):
- the government had demonstrated that the benefit cap had a causal impact – ‘even if modest’ – on moving capped households into work;
- the revised cap was subjected to express governmental and Parliamentary scrutiny;
- other childcare-related support was available between 2017 and 2019 to parents of children under the age of 2, including opportunities for working lone parents to recover a percentage of their childcare costs; and
- the government has now (as of 1 September 2025) introduced 30 hours per week of free childcare for working parents of children aged at least 9 months.
On the UKHRB
Samuel Talalay considers the Supreme Court’s decision in R v ABJ; R v BDN [2026] UKSC 8 that the criminal offence under section 12(1A) of the Terrorism Act 2000 – supporting a proscribed organisation – is compatible with Article 10 ECHR.
