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In January this year, the Transparency Implementation Group Reporting Pilot was rolled out to 16 more courts across England. The pilot works on the basis of a presumption that journalists and legal bloggers may report on what they see and hear during family cases, subject to strict rules of anonymity.
In Episode 197 of Law Pod UK barrister Jim Duffy speaks to two experienced 1COR family law practitioners – Richard Ager and Clare Ciborowska. They explore the principles at stake and the on-the-ground impact of the pilot so far.
Exemption for allies of the UK overseas, such as Afghan service veterans
Ensuring that Rwanda is only considered a safe country when the arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice.
The Bill is going back to the House of Commons this week and may soon come into law despite the disputes between the Commons and the Lords.
In international news
The US Supreme Court has announced that it will not hear the case of Mckesson v Doe. This was an appeal against a lower court decision which held that a protest organiser could be held liable in tort and face steep financial consequences if a single participant at a mass protest commits an illegal act. The case arises out of a Baton Rouge protest following a police shooting. DeRay Mckesson, one of the organisers of the protest, was sued by a police officer, identified only as John Doe, who was seriously injured when a participant in the protest threw a rock at him. The Supreme Court’s decision not to hear the case means that the lower court’s decision remains good law in Louisiana, Mississippi and Texas, and has been criticised for having a stifling effect on protest rights.
In the courts
The High Court held that Michaela Community Schools Trust’s decision to ban ritual prayer practices was lawful. The challenge was brought by a Muslim student at the school who wished to be permitted to pray for five minutes during the lunchtime break. The court rejected arguments that the ban was a breach of Article 9 of the European Convention on Human Rights (freedom of thought, conscience, and religion) and indirect religious discrimination against the school’s Muslim students. The High Court held that there was no interference with the claimant’s Article 9 rights as the claimant impliedly consented when she enrolled at the school, which is a secular school, that she would be subject to restrictions on her ability to manifest her religion and she would be able to “make up” for missed prayers when she got home (Qada prayers). Alternatively, the prayer ban was a proportionate means of promoting social cohesion at the school and preventing students from being pressured into participating in the prayers.
I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.
Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).
Dr Hilary Cass, Chair of the Independent Review of gender identity services for children and young people, submitted her final report last Wednesday to NHS England. The Cass Review was commissioned in 2020 to look into the effectiveness of the gender care services provided to young people by the NHS. The report stressed that gender-affirming care is an extremely poorly researched area, and that the “toxicity” of the conversation surrounding transgender identity was severely hampering competent medical care for trans youth. Further research studies commissioned by the review were “thwarted” by the lack of cooperation from NHS gender care services, and the little evidence already available was insufficient to suggest that, in their current state, NHS gender services are producing positive outcomes. The report has made a total of 32 recommendations to the NHS – notably, Cass argues for a more holistic approach to gender care for children, factoring in support for mental health and neurodiversity. Taking a non-partisan stance, Cass noted in her report that ‘for some, the best outcome will be transition, whereas others may resolve their distress in other ways. Some may transition and then de/retransition and/or experience regret. The NHS needs to care for all those seeking support.’ The report follows news last month that puberty blockers will no longer be a routinely available treatment option on the NHS for children with gender dysphoria.
The Government announced last week that they will be closing another 150 asylum hotels by the beginning of May, following the closure of 50 in January and a further 50 by March. Home Secretary James Cleverly stated that the process will ‘keep going until the last hotel is closed’. Concerns have been raised regarding the impact that the asylum hotel closures may have on housing services for local councils – Chair of the Local Government Association, Shaun Davies, has suggested that ‘councils are becoming increasingly concerned over the numbers of asylum seekers presenting as homeless, which is likely to dramatically increase when Home Office accommodation is withdrawn.’ Charity Refugee Council published a report last week revealing that official Government statistics show a 239% increase in the number of households requiring homelessness support from local authorities following eviction from Home Office asylum support accommodation. The Government statement from last week ends: ‘Ultimately, the best way to save money is by deterring people from coming to the UK illegally in the first place, and our partnership with Rwanda intends to do just that’.
The European Parliament voted to pass a new pact on migration and asylum last Thursday. The new laws brought in through the pact have been ten years in the making and are intended to provide a ‘robust legislative framework’ that ‘puts humanity first’. The pact, comprised of a series of 5 closely related laws, was passed by a narrow margin – the laws received an average of 300 votes for to 270 against. The laws cover a variety of issues including biometric data collection, detention regulations, and national security. The pact establishes a system of ‘mandatory solidarity’ between EU member states, seeking implement procedures which will divide responsibility for migration throughout the EU bloc. The pact has already been criticised on both sides of the political spectrum: Amnesty International have claimed the pact will cause a ‘surge in suffering’, while Jordan Bardella, President of France’s far-right party National Rally, called the pact ‘terrible’ and asked voters to give it the ‘worst possible defeat’ when France heads to the polls in June. The President of the European Parliament, Roberta Metsola, admitted that the pact ‘will not solve everything overnight’, but argued that ‘it is 10 giant leaps forward’.
In the Courts
Last Tuesday, the European Court of Human Rights delivered a judgment that, for the first time, held that government climate inaction constituted a breach of human rights under the ECHR. A group of Swiss older women – as part of the activist group KlimaSeniorinnen, Senior Women for Climate Protection – brought the case to the Court. They alleged that Switzerland’s poor climate policies has put them at increased risk of death during heat waves caused by climate change. The judgment confirms that the convention places countries under positive obligations to take effective and timely measures to fight climate change; finding a breach of Article 8 by sixteen votes to one, the Court held that Article 8 confers a right upon citizens to be protected from the ‘serious adverse effects of climate change on lives, health, wellbeing, and quality of life’. The Court also found unanimously that there had been a breach of Article 6 § 1 (access to court) as domestic courts in Switzerland had not taken the complaints of the KlimaSeniorinnen sufficiently seriously. Though the Court also dismissed two other cases making similar arguments for issues of admissibility, six other climate cases previously adjourned can now be fully considered by the Court in light of this historic decision. The case was discussed in more detail earlier this week on the latest episode of Law Pod UK, available here.
The Supreme Court of Arizona ruled last Tuesday that a near-total ban on abortion can come back into force following the repeal of Roe v Wade. The law in question was originally established in 1864 and bans all abortions with no exceptions but to save a woman’s life. It was stated in judgment that the case is only one of ‘statutory interpretation – it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the law’s] constitutionality, which is not before us’. The judges ruled that, in the absence of any legislation restricting the law or authorising abortion, and in light of the repeal of Roe v Wade, the law was enforceable. Despite this, the Supreme Court did delay enforcement for two weeks to allow the plaintiffs to commence further challenges against the law – in particular with regard to its constitutionality – in the lower courts. Katie Hobbs, Governor of Arizona, has come out against the judgment. In an official statement released after the ruling, she stated: ‘I will not let overzealous county attorneys take this as an opportunity to target any individual. As long as I am Governor, no Arizonan will be prosecuted by extremist county attorneys for seeking abortion care’. She has reiterated that an Executive Order she passed last year will continue to stand, which centralises all abortion-related prosecutions to Democrat Attorney General, Kris Mayes, and prohibits Arizona state agencies from assisting in abortion-related investigations.
In a judgment handed down by the Upper Tribunal (Immigration and Asylum Chamber) last week, the Court held that Home Office decisions to refuse to grant family reunion visas to refugees feeling Gaza without biometric checks were ‘irrational and unreasonable’. The applicants had requested their applications be substantively decided in advance of the submission of biometric data, since, as a result of the ongoing conflict, the visa centre in Gaza is not functioning. The nearest centre conducting biometric checks is in Cairo, Egypt. The Home Office policy required that for visas to be approved without biometric data, applicants must prove they face a ‘personal risk of harm, which is separate to the level of risk faced by the wider population’. Jackson J stated that he does ‘not consider that in the context of the conflict in Gaza […] that it is necessary for a person to show that they are specifically targeted to be able to establish that they are at risk due to their personal circumstances.’ The Court thus held that the Home Office policy was a disproportionate infringement on the Palestinian families’ right to private and family life, and thus in breach of Article 8 ECHR.
Yesterday (Tuesday 9th of April) the European Court of Human Rights in Strasbourg handed down three judgments from the Grand Chamber. Two of the applications were rejected on admissibility grounds. The third, a representative action by an NGO against the Swiss government, succeeded. It has caused something of a stir, to say the least.
The Strasbourg Court has broken new ground in finding that Switzerland has breached Article 8 of the ECHR, a provision which was drafted to protect the right to private and family life. In the case of Verein Klimaseniorinnen Schweiz and others v Switzerland, 16 of the 17 member panel concluded that Article 8 encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
The case of Duarte Agostinho and five others v Portugal and 32 other states was one of the applications considered by the Grand Chamber. Emma Louise Fenelon advised Save the Children in its third party intervention in this case.
The new and wide-ranging Serious Disruption Prevention Orders (SDPOs) introduced by the Public Order Act 2023 came into force on Friday. As part of the Government’s attempt to ‘crack down’ on protesters ‘dedicated to wreaking havoc’, the police will now be able to apply to courts for an order to place restrictions on protesters’ locations, associations with others, online activity, and more. Breaching an order will be a criminal offence carrying up to six months’ imprisonment and an order can be made against anyone who has previously committed ‘protest-related offences’, including the many newly criminalised by the Public Order Act itself. Liberty have previously criticised SDPOs as an ‘unprecedented and highly draconian measure, which could amount to a ban on named individuals’ fundamental right to protest’.
Scotland’s new laws on hate crime came into force last Monday. The Hate Crime and Public Order (Scotland) Act both consolidates existing hate crime offences and creates a new offence of ‘threatening or abusive behaviour intended to stir up hatred’ on the basis of ‘age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics’. A working group headed by Baroness Helena Kennedy KC has recommended that a separate offence be created to tackle misogynist abuse. Despite concerns about freedom of expression being raised by a variety of high profile online commentators, the Scottish Government have insisted the threshold for prosecution is very high with the act having multiple built in protections, including a ‘reasonableness’ defence. Some reports have suggested Police Scotland have already received up to 6000 complaints under the new law since Monday.
In Other News
Last Monday, drone strikes by the Israeli Defence Force killed seven World Central Kitchen (WCK) aid workers in the Gaza strip. Over a five minute period, three missiles struck three WCK vans delivering food to Northern Gaza despite previous coordination of the route with Israeli forces. Israel has admitted responsibility for the strikes and launched an investigation, reporting on Thursday that IDF forces had mistakenly believed the cars had been hijacked by Hamas militants and that drone operators were unable to see the WCK logo on the vans in the darkness. WCK has criticised the lack of accountability demonstrated by Israel’s response and has called for an independent inquiry. In related news, an open letter signed by UK judges and lawyers – including multiple former Supreme Court Justices – has called for the UK Government to end its supply of arms to Israel. The 17-page letter explains that the Government’s current position ‘falls significantly short’ of fulfilling its obligations under international law. The majority of British voters also believe the UK should cease their exports of arms to Israel, as revealed by a YouGov survey conducted last week.
The UN Human Rights Council passed a landmark resolution on Thursday to recognise and enhance the rights of intersex people. In a resolution proposed by Chile, Australia, Finland, and South Africa, the Council voted to call on Member States to ramp up protections offered towards intersex people against ‘discrimination, violence and harmful practices’. The resolution includes a provision requesting a report from the Office of the UN High Commissioner for Human Rights ‘examining in detail discriminatory laws and policies, acts of violence and harmful practices against persons with innate variations in sex characteristics, in all regions of the world.’ Intersex people do not currently enjoy specific protection in the UK under the Equality Act 2010.
In the Courts
Uganda’s Constitutional Court declined last Wednesday to nullify the country’s Anti-Homosexuality Act. Enacted last May, the law – which permits the death penalty for ‘aggravated homosexuality’ – has received international criticism for violating rights protected both by Uganda’s own constitution and by international treaties to which Uganda is a signatory. The Court did strike down particular provisions which it held to be ‘inconsistent with right to health, privacy and freedom of religion’; one such provision placed an obligation on all citizens to report anyone they suspected of engaging in homosexual activity, which was held to violate individual rights. Despite this, the judgment has been criticised by the UN High Commissioner for Human Rights Volker Türk, who revealed that ‘close to 600 people are reported to have been subjected to human rights violations and abuses based on their actual or imputed sexual orientation or gender identity since the Anti-Homosexuality Act was enacted in May last year’. He stated that the Act ‘must be repealed in its entirety, or unfortunately this number will only rise’. The LGBT+ activists behind the court case told Reuters that they intend to appeal to the Ugandan Supreme Court to seek a full annulment of the Act.
The European Court of Human Rights handed down a judgment last week finding that the lack of access to asylum to those arriving on Poland’s eastern borders meant that Poland was in breach of the ECHR. The case concerned a group of Tajik asylum seekers repeatedly turned away at the Ukrainian border crossing. During interviews with Polish border guards, the claimants stated they were seeking international protection from political persecution in Tajikistan, and that they were at danger of deportation in Ukraine. Their denial of access to the Polish asylum system and lack of an effective appeal process for the rejection at the border crossing violated Articles 3 (freedom from torture) and 13 (right to an effective remedy). A violation of Article 4 of Protocol 4 (prevention of collective expulsion of aliens) was also found, as the claimants successfully contended that the refusal of entry was on the basis of a wider policy to not accept asylum seekers at Polish border crossings.
This week multiple UN institutions responded to the deteriorating humanitarian conditions in Gaza. The UN Security Council passed a resolution, with the USA abstaining, demanding “an immediate ceasefire for the month of Ramadan…leading to a lasting sustainable ceasefire” and the release of all Israeli hostages taken by Hamas during the 07 October attack. The UN Special Rapporteur on the situation of human rights in the occupied Palestinian Territory has released a report critical of Israel’s military operation in Gaza, which argues that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met”.
Meanwhile, South Africa’s case against Israel at the International Court of Justice (ICJ) continues. The ICJ has imposed further provisional measures in response to the “famine setting in”. The ICJ’s order requires Israel to cooperate with the UN to ensure “the unhindered provision at scale” of humanitarian assistance including food, water, medical supplies etc. Micheál Martin TD, the Minister for Foreign Affairs and Minister for Defence for the Republic of Ireland, has announced that Ireland will intervene in South Africa’s case at the ICJ.
This week the US Supreme Court heard what may be the most significant case regarding reproductive rights since Dobbs v Jackson Women’s Health Organisation, which overturned Roe v Wade. The case is about whether the abortion medication Mifepristone was correctly approved by the Food and Drug Administration. It was brought by several individual doctors and doctors’ groups opposed to abortion. The arguments this week focused on whether these individuals and groups had standing to sue, i.e. that they have a close enough connection to the issue to bring the case.
Michael John Smith (appellant) v Fronterra Co-operative group Ltd and others [2024] NZSC 5
This appeal to the New Zealand Supreme Court concerned strike out of a claim in tort (comprised of three causes of action) relating to damage caused by climate change. The question was whether the plaintiff’s claim should be allowed to proceed to trial, or whether, regardless of what might be proved at trial, it is bound to fail and should be struck out now.
The implications of this ruling could be enormous, particularly if the English courts decide to follow the New Zealand model. In its conclusion to this lengthy judgment, the New Zealand Court observed that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity. The common law, where it is not clearly excluded, responds to challenge and change in a considered way, through trials involving the testing of evidence.”
The plaintiff was an elder of a Maori tribe and climate change spokesman for a national forum of tribal leaders. The defendants were all New Zealand companies involved in an industry that either emitted greenhouse gases or which released GHG when burned.
On Tuesday the government published its response to the public inquiry into Brook House Immigration Removal Centre. The inquiry was a response to a 2017 investigative documentary, which included footage of staff abusing detained people. The inquiry’s report was published on 19 September 2023. In its response the government described the documentary footage as “utterly shocking”, but emphasised the fact that “[d]etention is and will remain a fundamental element of the immigration system”. The government rejected the report’s key recommendation that it should set a time limit on detention. The response sought to highlight changes that have been made across the immigration detention estate since the events of 2017, such as the improved ratio of custodial staff to detained persons and the introduction of accredited training and a code of conduct for staff. The government stated that a “comprehensive review” into complaints and whistle blowing processes is being undertaken.
In other news, a memorandum disclosed to the Afghanistan Inquiry shows that in 2011 a UK Special Forces commander raised concerns that “there is in effect an unofficial policy… to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained… and the subsequent fabrication of evidence to suggest a lawful killing in self-defence”. The inquiry is investigating alleged unlawful conduct by UK Special Forces in Afghanistan between 2010 and 2013 and the adequacy of the Ministry of Defence’s response to concerns that were raised at the time. Johnny Mercer MP, the Minister for Defence People and Veterans, has stated in his witness statement that he was shown a copy of the memorandum but not allowed to keep it. Mercer been ordered to disclose the names of those who told him about alleged war crimes to the inquiry.
In international news
The Hong Kong government passed new national security legislation known as ‘Article 23’. The new law increases prison sentences for national security related offences, including a maximum jail sentence of 10 years for sedition where an ‘external force’ is involved. Any speech which is critical of the government could potentially come under the scope of sedition, and Hong Kong’s justice minister has since stated that a person might commit an offence if they share criticism of the legislation online. The legislation gives the police the power to detain someone for 16 days without charge and to prohibit the person from consulting with a lawyer for 48 hours. UK Foreign Secretary David Cameron previously stated that the legislative proposals would “have a negative impact on the people of Hong Kong in the exercise of their rights and freedoms”. The EU has expressed concerns over the legislation’s ‘sweeping provisions and broad defintions’ and described the increased penalties, which have extraterritorial reach, as “deeply worrying”.
In the courts
The Court of Appeal ruled that an individual’s views on climate change do not form part of the ‘circumstances’ of criminal damage which is committed as part of a protest. Previously, climate protesters had successfully relied on the defence that they honestly believed the owner of the property would have consented to the damage if they had known of the damage “and its circumstances”. The Court emphasised that the “circumstances must belong to the damage, not to the defendant”, and that there “must be a sufficient connection between the damage and its circumstances”. The case under consideration involved a climate protester (“C”) who had caused damage to the offices of various charities and political parties. The court held that “what C had to say about the facts of or effects of climate change could not amount to the circumstances of the damage” and that such evidence would be inadmissible in relation to the consent defence.
Science tells us that animals are social and sentient creatures, that they experience the world much like we do. But the law treats them very differently. Despite some progress, animals remain inadequately protected, and they can suffer in entertainment, research, farming, and conflicts.
The interconnectedness of humans, animals and the environment is recognised by the World Health Organisation, and the body of scientific work into intelligence in the animal kingdom continues to grow: the songs of Humpback whales are passed down through generations; crows and ravens are renowned for their exceptional problem-solving skills; elephants display empathy and emotional sensitivity; chimpanzees and orangutans exhibit complex tool use; dolphins engage in sophisticated vocalisations and coordinated behaviours.
The Government has announced a new definition of extremism. Michael Gove, communities secretary, told ministers on Thursday that they should not interact with any groups labelled as extremist or that do not maintain ‘public confidence in government’. While the former definition encompassed ‘vocal or active opposition’, the new definition refers to the ‘promotion or advancement of ideology’. This move away from physical acts into ideas has been criticised as having the potential to infringe on the right to freedom of thought when there is no harmful consequence – Miriam Cates MP warned of its potential to ‘chill speech of people who have perfectly legitimate, harmless views’. Any organisations judged to fall within the remit of the new definition will be excluded from receiving funding or having an audience with any minister. If a group feels that their labelling as extremist is incorrect, they can challenge the ministerial decision before the courts – but there is no process for internal appeal. The chief executive of MEND, one of the organisations mentioned by Mr Gove, told the BBC he would pursue legal action if the organisation was labelled extremist. Brendan Cox, widower of Jo Cox MP, told The Guardian in the wake of the change that ‘extremism deserves to be treated seriously and soberly, not used tactically to seek party political advantage’.
On Wednesday, the House of Commons passed the Post Office (Horizon System) Offences Bill, which automatically quashes the convictions of hundreds of sub-postmasters wrongly convicted as a result of the Horizon IT scandal. This is the first time a piece of legislation has been used in order to vacate convictions en masse. On top of the £179m already paid to those wrongly convicted, a £600,000 lump sum has been made available to sub-postmasters wrongly convicted, and a £75,000 payment was approved for any who, though not convicted, suffered mistreatment. Though the subject of the Bill is uncontroversial, some lawyers have been left feeling uneasy about its methods; legal experts have warned that legislating to overturn convictions threatens to override the judicial process and could set a dangerous precedent.
In wider news
Voting in Russia’s presidential election began on Friday with ballots continuing to be cast over the weekend. Vladimir Putin is standing for his fifth term as president after amendments to the constitution were made in 2020 to allow a candidate to stand for fifth and sixth terms; another term will see him having served 30 years in power. Although a handful of candidates are running against him, others have been disqualified and many consider that those remaining pose no credible threat. Nations have been called upon by the Parliamentary Assembly of the Council of Europe to refuse to recognise and legitimate the results of this weekend’s election, which has been referred to as a ‘carefully staged legitimisation ritual’.
Five years after the proposal for regulation was first tabled, the EU voted in a plenary session on Wednesday to adopt the Artificial Intelligence (AI) Act, now expected to receive final approval within weeks. The Act categorises the risk level of various programs and imposes stepped restrictions accordingly, including banning any system of AI deemed to pose an ‘unacceptable risk’ (with exemptions for military and national security use). The response to the Bill has been mixed – while many are praising the EU for being the first to create a set of binding regulations on AI, the Act has been criticised both for being too burdensome and stifling competition in the tech sector and for its silence on crucial human rights matters such as biometric mass surveillance and predictive policing. Amnesty International has suggested that the failure of EU lawmakers to ban the export of AI incompatible with the new legislation will allow companies to profit from technologies the Union itself has deemed excessively dangerous and harmful, establishing ‘a dangerous double standard’.
An open letter signed this week by twelve Israeli human rights organisations has accused Israel of ignoring the provisional ruling delivered by the ICJ over the military campaign in Gaza. 25 NGOs have also sent a letter this week to President Joe Biden calling for the United States to end their ‘support for the ongoing catastrophic humanitarian situation’ by terminating the provision of weapons and security assistance. This comes as the President announced a floating pier would be built for aid to access Gaza while President of the EU Commission Ursula von der Leyen announced that a sea corridor would be opened into Gaza to supply food amid fears of an impending famine.
In the courts
On Tuesday, the ECHR published a judgment confirming that the right to conscientiously object to military service is protected by the right to freedom of conscience and religion under Article 9 of the European Convention on Human Rights and Freedoms. The applicant, Murat Kanatlı, was convicted for refusing to perform compulsory Turkish military service on the grounds that he conscientiously objected. The statutory provisions did not allow him to undertake any other kind of civilian service in substitution, and therefore there was no possibility a fair balance between his interests and the interests of society had been struck. Accordingly, the Court found a breach his rights under Article 9.
Two courts in Japan ruled last week that the country’s ban on same sex marriage was unconstitutional. In separate rulings, the Sapporo High Court ruled that the lack of recognition of same sex marriage in the Civil Code violated the constitution while the Tokyo District Court declared that the ban violated the dignity of the individual and was therefore unconstitutional. These are the latest in a slew of Japanese judgments over the last five years suggesting the that the legislature should recognise same sex marriage in order to honour the rights of citizens. Though polls suggest same sex marriage enjoys support from up to 70% of the population, the government have shown no indication that this is likely to occur in the near future.
Thirty-three Metropolitan police officers are suing the Met for trauma stemming from the Grenfell Tower fire. Civil claims are being pursued for psychiatric injury suffered during the tragic event in 2017 which killed 72 people. Mediation is ongoing and it is hoped an out of court settlement will be reached. The proceedings have commenced against the Met Police after it was announced last month by the Fire Brigades Union that the claims of firefighters responding to the tower fire had been settled for over £20m. It is expected that the second and final report of the Grenfell Tower Inquiry will be published this spring or summer and will inform the Met Police’s decision as to whether to bring criminal charges against any parties, including corporate and gross negligence manslaughter.
In Dillon [2024] NIKB 11, the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was challenged head on. The Court disapplied a number of provisions of the Act as being in breach of relevant aspects of EU law which continue to apply to Northern Ireland via the Windsor Framework. We have covered the precise EU law aspects of Dillonelsewhere and will only cover the ECHR elements of the judgment in this post. As will become clear, however, there is a critical link between these two main aspects of the judgment.
The disapplication of any part of an Act of the UK Parliament is infrequent enough to be notable. Given that Dillon marks not only some of the most extensive disapplication in history but also is the first such event after Brexit, the decision is significant. But, as we will demonstrate, the decision is not radical. Far from it, much of Mr Justice Colton’s 738-paragraph judgment is an orthodox application of the relevant law.
Requiring the bill to maintain full compliance with domestic and international law
Ensuring that Rwanda is only considered a safe county “when and as long as” arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice (for example ensuring that asylum seekers are not sent back to the countries from which they fled).
Allowing decision-makers, such as immigration officers, courts and tribunals to consider whether or not Rwanda is a safe country and to grant interim relief.
Protecting victims of modern slavery from being removed to Rwanda without their consent.
Parliamentarians in France have voted to amend the country’s constitution to include a “guaranteed freedom” of abortion. The measure passed in an overwhelming 780-72 vote. The change was prompted by Dobbs v Jackson’s Women’s Health Organisation, a case in which the US Supreme Court overturned Roe v Wade and so ended the right to abortion for millions of women in the USA.
The people of the Republic of Ireland have rejected proposals to “modernise” the country’s constitution. The country held a referendum to amend Article 41 of the Constitution. Article 41 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” and that the state shall “guard with special care the institution of Marriage, on which the Family is founded”. The proposed changes would have substituted marriage with “durable relationships” and would have replaced the clause relating to mothers’ duties in the home with a clause recognising care provided by family members by “reason of the bonds that exist among them”.
An UN report by the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has found that there are reasonable grounds to believe that conflict-related sexual violence occurred during the 07 October attacks in Israel including rape and gang rape. A separate internal UN report has described widespread abuse of Palestinian detainees including physical and sexual violence. As the humanitarian conditions in Gaza rapidly deteriorate, countries that previously withdrew UNRWA funding, due to allegations that employees of the agency participated in the 07 October attacks, have announced that they are resuming funding. This includes the EU Commission, Sweden and Canada. In his State of the Union address President Biden has put forward a plan to build a “temporary pier” on Gaza’s coastline to distribute aid.
In the courts
The US Supreme Court has unanimously held that Colorado cannot remove Donald Trump from the ballot of the presidential elections. The Colorado Supreme Court had held that Trump was ineligible to appear on the ballot, under Section 3 of the 14th Amendment to the Constitution which disqualifies anyone “engaged in insurrection or rebellion” against the federal government. Section 3 was originally enacted after the US Civil War to prevent supporters of the Confederacy from taking public office. The US Supreme Court held that only Congress, rather than individual states, can enforce Section 3. A particular consideration was the potential for “chaos” if different candidates were eligible in various states.
Legal news abounds these days with stories of fabricated decisions and authorities generated by ChatGPT and similar AI mechanisms. But there’s nothing like a bit of old-fashioned human plagiarism to tickle the palates, and the full force of a judge’s fury was unleashed on such an attempt recently in the High Court.
The facts appeared to be dry. The Claimant (an oil and gas company) commenced an arbitration claim against the Defendants, three companies in a banking group. It sought to enforce, under s. 66 of the 1996 Arbitration Act, what was said to be a Kuwaiti arbitration award dated 28 November 2022. This, in turn, was said to have been rendered in pursuance of an arbitration agreement between the claimants, Contax BVI, and the Defendants.
The Court was told that for a number of years Contax BVI had been attempting to liquidate an investment account held by the defendant banking company – to the tune of some €53 million. The Claimants then stated that this had been the subject of an arbitration under the auspices of the Kuwait Chamber of Commerce and Industry Commercial Arbitration Centre which had resulted in an award in its favour.
A number of documents were exhibited to the claimant’s witness statement, including the arbitration award, a decision by the Kuwaiti Commercial Court of Appeal and a document, said to be a statement by one of the claimant’s legal advisors, saying that attempts to enforce the award and Court of Appeal ruling in Kuwait had been unsuccessful. As Butcher J describes it,
“This application was put before me, in the ordinary way, on a without notice basis, for consideration on the papers, in early August 2023. Judges of this court have to consider very many paper applications of this type and others. I recall considering this one with some care, in that I did not find it all very easy to understand. I gave, I would say in retrospect, undue allowance for difficulties apparently arising from documents being prepared by people who were not native English speakers and/or whose grasp of English procedure was not perfect. It did not, however, occur to me that any of the documents might be fabrications. I was not on the lookout for fraud, and did not suspect it.”
Unsuspecting as he was, the judge made the order and gave the claimants leave to enforce it. But the defendants came back with a statement that there had never been any arbitration at all. As they put it in their skeleton argument supporting their application to have the order set aside:
“that the award is an out-and-out fabrication might seem at first blush unlikely – but substantial parts of it have been taken from Picken J’s judgment in Manoukian v Société Générale de Banque au Liban SAL [2022] EWHC 669 (QB)”
Butcher J described this case as “unique” in his experience, and “of the utmost seriousness”, and held that “there was no arbitration agreement or arbitration, and that the award and the Kuwaiti judgment are fabrications. I do not consider that there is a triable issue in relation to this.”
Documents before the Court
AI is definitely better at the business of fakery; due to the “black box” nature of its processing, it is almost impossible to identify the sources of its data. For a human processor it is much more difficult to conceal the true author of the material he or she has copied. So it was that the judge was able to establish the “arbitration award” , supposedly translated from Arabic, had substantial passages which are taken, with some modifications, from the judgment of Picken J in Manoukian, concerning completely different parties. It is best to see [40]-[44] of Butcher J’s judgment to get the full flavour of the claimant’s efforts to mislead the court but here is an example:
Extract from so-called Arbitration Award
” [5] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Contax Partners Inc BVI an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Contax Partners Inc BVI issued the proceedings on 1 December 2021; pleadings closed on 4 April 2022, and expedition was ordered at a hearing which took place on 21 June 2022. [6] In further consequence of the need for expedition, I indicated at a hearing which took place on 7th December 2021 that Contax Partners Inc BVI claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers to where he wish. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects at all or, at least, in any particular detail.”
Extract from Picken J’s decision in Manoukian:
” [3] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Mr Manoukian an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Mr Manoukian issued the proceedings on 19 December 2020; pleadings were closed on 6 April 2021, and expedition was ordered at a CMC which took place on 8 June 2021. [4] In further consequence of the need for expedition, I indicated at a short hearing which took place on 25 February 2022 that Mr Manoukian’s claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects either at all or, at least, in any particular detail.”
As Butcher J points out, these examples, which could be multiplied, largely speak for themselves. He considered the following features to be important:
“(1) The text of the Award, in significant measure, derives from the text of Picken J’s judgment. This is obvious inter alia from: (i) the use of exactly the same, far from standard, defined terms (eg ‘General Transfer Right Issue’); (ii) the use of English legal terms (eg ‘claim in debt’, ‘exclusion clause’, ‘specific performance’); (iii) exactly the same phraseology being used, including the argot of English judgments (‘be that as it may’, ‘the submission is not entirely without merit’, ‘that said’, ‘fall to be considered’); (iv) the use of the same punctuation, even when it was not obvious, and arguably incorrect (eg in paragraph 129 of Picken J’s judgment, ‘…in debt, in the event, that the Court…’, both commas also appearing in the Award).”
Given his conclusion that both the award and the Kuwaiti judgment were fabrications, Butcher J set aside the order entering judgment against the Defendants in the terms of the purported “award”. He concluded (at para 52) that
“The result of this decision is that there are a considerable number of unanswered, but serious, questions, and in particular as to who was responsible for the fabrications which I have found to have been made, and whether there is culpability (and if any whose) as to the way in which the application for permission to enforce the purported Award was presented to the court. Those are matters which are likely to require investigation hereafter.”
In this first episode, Lucy and Kiran ask ‘what’s the problem?’ and cover a number of issues including gendered assumptions and stereotypes, pressure at the Bar, equal pay, and the fair allocation of work.
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