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The Law Commission has proposed to ban discrimination in the appointment of arbitrators. At present, women are still ‘around three times less likely to be appointed as arbitrators than men’. The proposed reform would amend the Arbitration Act 1996 so that any agreement in relation to proposed arbitrator’s protected characteristics should be unenforceable. At present, many arbitration agreements require a ‘commercial man’ or similar. This situation received judicial treatment in 2011 in the case of Hashwani v Jivraj, where it was decided in the UKSC that since an arbitrator was not appointed under a contract of employment, employment law rules against discrimination did not apply.
Barristers on strike have had the first talk with the Justice Secretary, the newly appointed Brandon Lewis. The chairman of the Criminal Bar Association, Kirsty Brimelow KC, said the group was willing to negotiate, having taken the decision to strike following repeated requests to meet with Lewis’ predecessor, Dominic Raab, to no avail. The Justice Secretary described the talks as a ‘constructive initial meeting’ and urged the CBA to stop the strike while negotiations were underway. The CBA is still asking for a 25% rise in pay for legal aid in defence cases.
This year Law Pod UK celebrates its fifth birthday. In 2017 we were amongst the very first to roll out a specialised series of podcasts about the law in the United Kingdom. And after a brief hiatus we’re back with a bang, with two new presenters and a number of exciting upcoming guests.
Jim has extensive experience across clinical negligence, inquests and inquiries, personal injury, human rights, tax and employment and discrimination.
He is a member of the Attorney General’s Panel of Counsel (‘B’ Panel) and has particular experience of prison law and employment claims, acting on both sides.
In this episode he talks to Clare Ciborowska and Richard Ager at the Brighton Annexe of 1 Crown Office Row about how the family court deals with allegations of ‘alienating behaviour’ by one parent against another. They examine in particular the part psychologists play in that process.
Waiting in the wings is our second new presenter, Lucy McCann. You will be meeting her shortly. Lucy has recently joined Chambers after a stellar pre-pupillage career, including editing the OUP’s practitioner text, Judicial Review: Principles and Procedure and lecturing in public law at City Law School.
Back to Law Pod UK: we now have a strong following amongst lawyers, law students and those interested in legal issues. We recently surpassed 645,000 listens and have hosted guests including Nazir Afzal OBE, Bill Browder, Gráinne de Búrca, Lord Anderson of Ipswich KC, Harriet Wistrich and Joshua Rozenberg, and panels involving Lord Justice Singh and Sir Steven Sedley.
On Thursday 8 September, Queen Elizabeth II, the UK’s longest-serving monarch, died peacefully at Balmoral aged 96. She is succeeded by her son, King Charles III. He described the death of his mother as a ‘moment of great sadness’ for him and his family, and that her loss would be ‘deeply felt’ around the world. Her state funeral this Monday was watched by around 4 billion people worldwide, and more than a million people lined the streets of London to pay tribute.
On Friday 17 September, the measure known as section 28 was extended to five more crown courts, taking the total number to 63. The policy allows complainants of offences including modern slavery to be cross-examined before trial in front of a limited number of people. Although many barristers support the principle of the policy, some have stated there are insufficient resources for the scheme, particularly in the light of the indefinite walkout over legal aid fees. Many advocates refused to do section 28 cases pre-strike given the amount of extra unpaid work required.
The quarter-of-a-billion-pound IT project rolled out by the Ministry of Justice to increase the efficiency of sharing information between courts, lawyers and police has come under criticism. The Common Platform software system has been accused of putting the justice system ‘at risk’. It is reported the system has been resulting in difficulties for lawyers, unlawful detentions, and wrongful arrests. Whistle-blowers have called the system ‘faulty, unsafe and unfinished’.
On 8 September 2022, the European Court of Human Rights (ECtHR) handed down its decision in Drelon v France (application nos. 3153/16 and 27758/18).[1] The Court unanimously found a violation of Article 8 of the European Convention on Human Rights in relation to the collection by the French Blood Donation Service, the Établissement Français du Sang (EFS), of personal data relating to a potential blood donor’s presumed sexual orientation and the excessive length of time the data was kept in a public institution.
In recent years, digital assets including cryptocurrencies and non-fungible tokens (NFTs) have commanded considerable media attention. Speaking extra-judicially in the foreward to the UKJT Statement on Crypto-assets and Smart Contracts in November 2019, the Master of the Rolls, Sir Geoffrey Vos, has stated that: “In legal terms, cryptoassets and smart contracts undoubtedly represent the future”. To what extent should the law of the future grant property rights in respect of crypto assets? Will the inalienable right to peaceful enjoyment of possessions apply to tokens existing only on the blockchain? Or to NFTs residing only in the ‘metaverse’?
These are the questions addressed in depth by the Law Commission’s recently published consultation paper on Digital Assets (July 2022). In this article, the author offers a number of predictions about the future direction of English law based upon the Law Commission’s paper.
One of the first decisions taken by the new Prime Minister, Liz Truss, has been to halt Dominic Raab’s Bill of Rights plan. The bill would have given legal supremacy to the UK Supreme Court, explicitly entitling it to disregard rulings of the European Court of Human Rights (ECtHR). The bill is now ‘unlikely to progress in its current form’, a Whitehall source of the BBC has expressed, leaving doubt over whether Raab’s attempts to repeal the Human Rights Act 1998 will materialise. Vice President of the Law Society, Lubna Shuja, said that ‘the only smart way to proceed would be to go back to the advice of the independent review it [the Government] commissioned.’
The legal challenge against the Rwanda asylum plan is being heard before the High Court. While the trial is ongoing, and no judgment will be handed down for some time, the Government’s legal arguments defending the plan are now known. Part of the defence advanced by Lord Pannick KC, counsel for the Government, relies on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which confers on ministers the power to send asylum seekers to safe countries. If they are of the opinion the asylum seekers will be safe and not put in danger, the Home Secretary can transfer them to other states. The main hurdle for the Government in this defence will be the UN Refugee Agency’s declaration that Rwanda is an unsafe place for migrants. The Court has asked for a detailed response to this critical point.
Liz Truss has been confirmed as the new prime minister. She is expected to freeze energy bills at approximately £2,500 a year and to provide a £400 universal handout. She has reportedly ruled out the idea of a windfall tax on oil companies, which was proposed by Labour. She is apparently considering reviewing workers’ rights, as part of her plan to scrap remaining EU regulations by the end of next year.
The chair of the Criminal Bar Association has called on Dominic Raab to hold talks to resolve their industrial action, which began in April. On Monday, criminal barristers began an indefinite all-out strike, calling for legal aid fees to increase by 25% immediately.
In other news
Ministers plan to introduce legislation to encourage nurses and dentists trained elsewhere to begin working for the NHS. The health secretary, Steve Barclay, is hoping to boost overseas recruitment in health and social care. This move comes after the number of unfilled NHS posts reached a record high of 132,139 earlier this year. Link 5 – ministers to make it easier
Two councils are planning to seek permission to appeal to the Supreme Court following two successful appeals which involved the striking out of negligence claims that had been brought against them. The appeals considered when children being cared for by local authorities under the Children Act 1989 are owed a duty of care by those local authorities and the social workers for whom they are vicariously liable.
The conservation charity WildFish has asked the Government to withdraw its Storm Overflow Discharge Reduction Plan, on the grounds that it is ‘unlawful on many counts’ by encouraging breaches of environmental laws to continue. The Plan allows the continuation of environmental damage caused by up to 100% of storm overflows discharging into high priority sites. It has been labelled a ‘smoke and mirror’ approach which does not deal robustly with water companies’ sewage pollution of UK rivers.
Members of the Criminal Bar Association have voted in favour of an indefinite strike, escalating the industrial action that the courts have witnessed since June. The decision follows failed negotiations with the Ministry of Justice, with Dominic Raab still having not met with the CBA and the government standing firm in its position. The MoJ have expressed their disapproval of the decision, labelling it ‘irresponsible’. The CBA, alternatively, have accused the government of overseeing a ‘recklessly underfunded’ criminal justice system. In response to the decision, Raab has proposed granting more solicitors rights of audience, allowing more to advocate in the Crown court. The strike is due to commence on 5 September, coinciding with the announcement of the new Conservative party leader.
Liz Truss has expressed that she will consider triggering Article 16 of the Northern Ireland Protocol if she were to be successful in her leadership campaign. Article 16 provides ‘safeguarding measures’ that entitle the UK or the EU to suspend any part of the agreement. It does not, however, dismantle the Protocol in its entirety. Rather, triggering the article would provide an alternative to other suggestions which propose primary legislation to deem it necessary that the Government not comply with its existing obligations under the agreement. Triggering the article would exhaust the legal options the UK has before following through on this threat to discard the agreement altogether. The news comes after the EU launched a series of legal challenges against the UK’s commitment to the Protocol.
This decision, handed down by Swift J in the High Court, concerns the requirements for fairness in local authority age assessments for asylum seekers and the correct approach to be adopted.
Facts
The claimant, a Sudanese national, arrived in the UK on 21 May 2021 and made an application for asylum, claiming to be 17 years old. The local authority did not believe the claimant to be a child and assessed him to be 23 years old. The claimant was provided with initial accommodation in the area of the local authority. Social workers employed by the local council also assessed the claimant as being 23 years old. The claimant’s legal representatives on two occasions complained about the local authority’s decision, firstly levelling several criticisms of the way the age assessment process had been conducted and then enclosing additional evidence in respect of the claimant’s age and requesting a reconsideration, which the local authority rejected.
A former Afghan judge, who is fleeing from the Taliban with her son, has appealed against the Home Office rejected her application to enter the UK. Lawyers representing the woman state that she and her son have been left in a “gravely vulnerable position” following the withdrawal of western troops from the country. They had been chasing the Home Office for a decision on their application, but stated that the decision-makers were “dragging their feet”. They were told the delays were due to resources being redirected to Ukraine. After nine months the applications were refused, and an appeal is expected to take more months still. The family are currently in hiding in Pakistan after their home in Kabul was raided. Their residency is dependent on the goodwill of a landlord putting himself at risk of criminal punishment. Their refused entry is believed to be a result of administrative error.
The UK government has submitted its argument in the case which may settle whether Members of Scottish Parliament could legislate for a vote on Scottish independence without Westminster’s backing. The submission from the Advocate General precedes a full hearing on 11 and 12 October when oral arguments will be heard. The Supreme Court will rule on whether Holyrood alone has the power to hold an independence vote, which First Minister Nicola Sturgeon wants to hold on 19 October 2023. Last month, the Scottish government published its own case, arguing the referendum is ‘advisory’ and would have no legal effect on the union.
The House of Commons Women and Equalities Committee published a report on 4 August recommending the government should improve legal protections for unmarried couples by introducing an opt-out cohabitation scheme proposed by the Law Commission in 2007. The scheme aims to protect eligible cohabitants who are economically vulnerable, preserve individual autonomy, maintain a distinction with marriage and civil partnership, and provide certainty about who qualifies as a cohabitant. The committee said the government should commit to publishing draft legislation for scrutiny in the 2023-24 parliamentary session.
On 10 August, Suella Braverman delivered a speech for the Policy Exchange’s Judicial Power Project stressing the need for the government to better clarify the scope of fundamental rights. She called to curb the influence of the European Court of Human Rights, citing the ‘intensive standard of proportionality under the Human Rights Act’. The speech dealt with issues including the Equality Act, Single Sex Spaces- specifically in schools- convention rights and illegal migration.
Conservative frontrunner Liz Truss is promising to cut taxes this winter to support families amidst rising energy bills, through an emergency budget that would be enacted this September. Sunak, her rival, has pledged to provide a £15bn overall package of assistance with energy bills. Criticisms have been raised of Truss’ plans, however, with suggestions that they could cost £30bn, £40bn or even £50bn per year. Both candidates’ plans have been criticised for not being accompanied by plans for lower spending that would make them sustainable. Labour’s Rachel Reeves has argued that amidst ‘fantasy economics and unfunded announcements from the Tories’, Labour alone can offer Britain the fresh start that it needs.
A survey by the British Dental Association and the BBC has shown that 91% of NHS practices in England are not accepting new adult patients. Louise Ansari, national director of Healthwatch England, has called the results of the survey ‘dire’. Stories have emerged of people pulling out their own teeth and making their own teeth out of resin to stick back on with superglue. The health secretary has noted the ‘urgency’ of preparing the NHS for winter, amidst the pressures of coronavirus, the rising cost of living and seasonal flu. Whether the Department of Health and Social Care’s recent comment regarding the ‘government priority’ of NHS dental care will translate into satisfactory results remains to be seen.
On Monday 25 July, the Court of Appeal refused permission to appeal against a decision to end 12-year old Archie Battersbee’s life support treatment. The decision was stayed for 48 hours – until 2pm on Wednesday – to allow Archie’s parents to apply to the European Court of Human Rights for interim relief. On Tuesday 2 August, the family’s fresh appeal to the Supreme Court, based on ‘new evidence’ of Archie attempting to independently take breaths, was also refused.
Also on Monday, the London Central Employment Tribunal ruled in favour of Allison Bailey, awarding her £22,000 in her discrimination case. The Tribunal found that the barrister at Garden Court Chambers (GCC) had been victimised and discriminated against by her employer for expressing gender critical beliefs. The claim against Stonewall Equality Ltd was dismissed; the LGBT charity worked with GCC, which had joined its ‘diversity champions’ scheme. Ms Bailey accused Stonewall of ‘trans-extremism’.
Thursday 28 July marked a historic moment for the UK’s legal system; for the first time, filming and public broadcasting was allowed in the Crown Court. Cameras recorded Sarah Munro QC sentencing Ben Oliver, who killed his grand-father in January 2021. Her judgement, handing down a life sentence with a minimum term of ten years and eight months, was accompanied by an informative explanation.
We do not usually cover first-instance employment tribunal judgments on this blog, but two cases handed down in the last three weeks – Forstater v. CGD Europe and Bailey v. Stonewall Equality Ltd and Garden Court Chambers – have attracted so much attention that we feel an exception must be made. Both cases involved women with ‘gender critical’ beliefs who faced hostility in their workplaces after expressing them. Both succeeded in their claims of direct discrimination and victimisation on grounds of belief under the Equality Act 2010. Although neither of the cases sets a binding precedent for other courts or tribunals, they contain interesting legal analysis and comment about the importance of freedom of expression and freedom of belief in the context of work which is of wider significance.
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