The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.
On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.
The Court of Appeal has revisited the tension between the wish of a transgender person to have their legal gender recognised on their child’s birth certificate and the right of the child to discover the identity of their biological mother.The Court has ruled that as the person who gave birth to the child, the appellant (a transgender male) must be registered as the “mother” on the child’s birth certificate.
Uddin v The Secretary of State for the Home Department  EWCA Civ 338 – read judgment
On 12 March 2020 a unanimous Court of Appeal led by Sir Ernest Ryder (Senior President of the Tribunals), together with Lord Justice Bean and Lady Justice King, allowed the Appellant’s appeal against the First tier Tribunal (“FtT”) and Upper Tribunal (“UT”)’s decisions upholding the refusal of his application for leave to remain.
The case concerns the correct approach to the interpretation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in circumstances arising out of a foster care relationship where the person who had received or continued to receive that care is now an adult.
In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
In Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
The circumstances in which a court should prevent the press from reporting information about famous people has long provoked debate. The decision of the Court of Appeal in ABC & Ors v Telegraph Media Group Ltd  EWCA Civ 2329 is no exception, attracting extensive press coverage and comment from the #MeToo movement.
In a unanimous judgment, the Court of Appeal overturned the decision of Mr Justice Haddon-Cave in the High Court and granted an interim injunction to the Appellants/Claimants.
The decision had the effect of temporarily restraining publication of certain information which was alleged by the Claimants to be confidential and disclosed in breach of non-disclosure agreements – namely allegations of sexual and racial harassment made against a well-known (and at the time unidentified) leading businessman – pending a full trial.
However, Lord Hain then went on to disclose under Parliamentary privilege that the accused businessman was Sir Philip Green. He said that given the “serious and repeated” nature of the allegations he felt under a “duty” to name him, and publication of this information was “clearly in the public interest”. Continue reading →
In the first phase of Liberty’s landmark challenge to the Investigatory Powers Act 2016 (“IPA”), Singh LJ and Holgate J sitting as a Divisional Court have granted a declaration that in the area of criminal justice, Part 4 of the Investigatory Powers Act 2016 is, in part, incompatible with EU law. Other parts of Liberty’s challenge to the IPA will be considered at a later date.
Part 4 was declared incompatible in so far as it (a) authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”, and (b) provides for access to retained data that is not subject to prior review by a court or an independent administrative body.
By way of remedy, the court has allowed the Government and Parliament a “reasonable amount of time” to correct the defects which exist and which are incompatible with EU law. This period will expire on 1 November 2018. However, the court decided not to disapply the legislation.
Recent years have seen a significant increase in the number of people sleeping on the streets in Greater London — the figure has more than doubled since 2017. This includes people of all nationalities, and a significant number of EEA nationals.
The High Court has quashed policy guidance which set out the circumstances in which “rough sleeping” would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal if this would be proportionate .
The Claimants were two Polish nationals and one Latvian national against whom removal notices had been served. They challenged the legality of the policy on the basis that it was contrary to EU law.
R (on the application of Holborn Studios Ltd) v Hackney LBC; R. (on the application of Del Brenner) v Hackney LBC  EWHC 2823 (Admin) – John Howell QC sitting as a High Court Judge read judgment
Update: Listen to the Law Pod UK podcast episode 19, available for free download from iTunes or from Audioboom here
The High Court has just ruled that the public should be reconsulted on a planning application which has been amended. Failure to do so may be procedurally unfair and therefore unlawful.
This important case will signal to public authorities the need to consider carefully their procedural obligations when determining the outcome of planning applications. They will now need to be alive to the risk that a court will substitute its own view of whether “fairness” requires that the public be re-consulted where a planning application has been amended.
In two judicial review applications the claimants challenged the process by which Hackney London Borough Council gave planning permission to a proposed development.
The development would have replaced a number of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney. It is a listed area of local architectural and historic interest and lies within the Regent’s Canal Conservation Area. Continue reading →
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