The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
The Government has launched legal action to recover £122m from PPE Medpro, the supplier recommended by Conservative peer Michelle Mone. The claim is grounded in a contract for the supply of 25m sterile surgical gowns awarded via the ‘VIP lane’ used during the pandemic to prioritise companies with political connections. None of the gowns purchased were ever used in the NHS as they were allegedly not fit for purpose, although Medpro insist that the gowns passed inspection and will defend the claim. The case will be of significant public interest following the revelation that £29m originating from profits from this contract was paid to an offshore trust whose beneficiaries were Mone and her children. Mone’s husband also profited at least £65m from these government contracts. Mone remains insistent that she had no involvement in Medpro and has not gained financially from the contracts.
The Scottish Parliament have passed the Gender Recognition Bill, allowing people to legally change their gender through a system of self-identification. The Bill seeks to make it easier for individuals to legally change their gender, removing the need for a psychiatric diagnosis of gender dysphoria to gain a gender recognition certificate, and extending the new system to 16 year olds. It also reduces the time someone has to have been permanently living in their acquired gender before they can apply (to 3 months down from 2 years). The Bill has been the centre of a much heated debate, with potent beliefs on either side. While the parliamentary debate itself was disrupted within minutes by protesters shouting ‘shame on you… this is the darkest day’, many have come out in support of the Bill for the protections it provides for trans people.
In our final episode of the year, Rosalind English, Lucy McCann and Jonathan Metzer discuss some of the most important judgments that have been handed down in the last twelve months. The recording of this episode took place a day before judgment was handed down in the “Rwanda case” ( R ((AAA) Syria and Ors) v Secretary of State for the Home Department  EWHC 3230 (Admin).
Below are the citations for all the cases discussed in this episode.
The Divisional Court has dismissed the claim for judicial review challenging decisions made by the Home Secretary that asylum claims made in the United Kingdom should not be determined here and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there. Removal from the United Kingdom in these circumstances involves two decisions: first, a decision that the asylum claim is inadmissible – i.e., that the asylum claim should not be decided on its merits in the United Kingdom; and second a decision to remove the asylum claimant to a safe third country which in these cases is Rwanda. Lewis LJ and Swift J found that the Home Secretary was entitled to rely on assurances provided by the Rwandan government in a specific and detailed memorandum of understanding that Rwanda was a safe third country. They also rejected the argument that the policy was in breach of retained EU law, specifically, Directive 2005/85 art.27(2). Regardless of whether art.27(2) had been breached, there was no breach of retained EU law, by reason of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1 Pt 3 para.6, the Directive was not retained EU law. The judgment is also interesting on the question of standing. The claimants included individual asylum seekers, charities and a home office officials’ trade union. The Court concluded that neither the trade union nor the charities had standing. The union’s members were not directly affected by the policy in any sense relevant for the purposes of seeking judicial review, and it could not be said that any person working for a public authority had sufficient interest to challenge any decision taken by that authority. The charities claimed that they had surrogate standing in that they represented the interests of those who were not well-placed to bring an action themselves. However, that submission was undermined by the presence of the asylum-seeker claimants, who were better placed to bring the claim.
A&E wards dealt with 2.2. million patients last month, while ambulance services attended 81,655 of the most serious incidents: the highest demand on record for November. Strikes are set for December 15 and 21, as Royal College of Nursing members at hospitals across England will strike over below-inflation pay increases. Paramedics and other ambulance staff in most parts of the country will strike a day later on December 21. Labour have indicated they are “willing to talk” about higher pay rises for NHS staff, and would revisit the pay deal handed to NHS staff.
A Manchester High Court order was made on Friday 16 December by Fordham J, ruling that the Home Secretary acted unlawfully in failing to ensure an adequate rate of support for more than 50,000 asylum seekers. The case, brought by an asylum seeker “CB”, challenged the amount of financial support given to asylum seekers during the cost-of-living crisis. An estimated 58,148 asylum seekers in self-catering accommodation receive cash support for basic needs such as food and travel. The level of support is calculated to be the minimum required for day-to-day survival.
Yesterday, the Divisional Court (Lewis LJ and Swift J) held that, in principle, the relocation of asylum seekers to Rwanda was consistent with the Refugee Convention and other legal obligations on the government, including those imposed by the Human Rights Act 1998. However, the Court also held that Home Secretary had failed to properly consider the circumstances of eight individual claimants to decide whether there was anything which meant that their asylum claim should be determined in the UK or they should not be relocated to Rwanda. Therefore, the decisions in those cases were set aside and referred back to the Home Secretary for her to consider afresh.
The Court’s judgment is detailed and addresses a number of issues. In this post, the focus will be on the general challenge made to removal to Rwanda in principle and what can be expected in the (likely) event that this aspect of the case is appealed further.
Abortion in Northern Ireland has had a fraught and frequently distressing history. Until 2019 when the UK Parliament reformed the law, the jurisdiction had the most restrictive approach to abortion in the UK. But even this reform has not reformed the reality, either for those seeking abortion services or information and counselling on such services or for those who work at providers of such services lawfully. I have previously written about the situation as it stood in March 2021, and the reality has changed little since then, with two notable exceptions. In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill (Northern Ireland) (‘SAZ Bill’) to create buffer zones around lawful abortion providers, in an attempt to criminalise the harassment and intimidation of people who seek or work in such places. On 2 December 2022, tired of the glacial pace and political controversy in commissioning abortion services, the Secretary of State for Northern Ireland moved to commission such services himself. In the interim, the Attorney General for Northern Ireland (‘AGNI’) referred the SAZ Bill to the UK Supreme Court to determine whether it was lawful.
But the SAZ Reference also drew another ECHR issue to the Court’s attention: the assessment of proportionality and reasonable excuse defences in criminal trials involving protests. The main points here were the consideration of the Court’s previous judgment in Ziegler and the judgment of the Divisional Court (England and Wales) in Cuciurean. Unusually for a devolution reference, therefore, the Supreme Court sat as a panel of seven Justices. The SAZ Reference judgment was unanimous and authored by Lord Reed.
The Online Safety Bill returned to parliament on 5 December after a five-month delay. The bill had been postponed until after the summer recess in July in light of the confidence vote called by Boris Johnson. The bill has changed significantly since originally proposed by Theresa May in the online harms white paper, including the recent adjustments to requirements relating to “legal but harmful” content, as noted in last week’s round-up.
A Freedom of Information request by Big Brother Watch has revealed that the Metropolitan police were rebuked by the information commissioner’s office in 2020 for video surveillance of children as young as 10 at a March 2019 climate protest. According to the ICO, the data-gathering was unlawful because the force had failed to consider the privacy rights of the children at the protest, and had not considered their entitlement to added data protections in light of their age.
In Episode 174 Emma-Louise Fenelon speaks to Sir Jonathan Jones about recent developments in public law and the Constitution, including recent political turbulence, the Union, the Northern Ireland Protocol, Judicial Review reforms, Human Rights Act reforms and Standards and Ethics in public life.
Sir Jonathan Guy Jones KCB KC is a British lawyer, appointed in March 2014 and serving until his resignation on 8 September 2020 as HM Procurator General, Treasury Solicitor and Head of the Government Legal Service, and so the Permanent Secretary of the Government Legal Department. He is now a Senior Consultant, Public and Constitutional Law, at Linklaters. He tweets at @SirJJKC
This Episode mentions:
HM & Ors  EWHC 2729 (14 October 2022), judgment here, covered by Marina Wheeler KC on the Blog here
The Good Law Project v SSHSC  EWHC 298 (15 February 2022) judgment here
Reference by the Lord Advocate (Rev1)  UKSC 31 (23 November 2022) judgment here
These lawsuits started in the United States in the late eighties, but they’ve certainly been on the rise in the UK and in the EU. So much so that the EU has brought out a draft directive to attempt to deal with the problem. In July this year, the then Deputy Prime Minister, Dominic Raab, launched an urgent call for evidence in response to the challenges presented by SLAPPs.
SLAPPs are often framed as legal cases. But they represent an abuse of law and procedure as their principal objective is stifling public debate rather than pursuit of a legal remedy. In Episode 173 of Law Pod UK Rosalind English discusses this phenomenon with Greg Callus, defamation specialist from Five Raymond Buildings.
A full transcript of the interview is available here.
We are pleased to welcome this guest post from Prof Brice Dickson, Emeritus Professor of International and Comparative Law at Queen’s University Belfast, in which he sets out the international human rights monitoring mechanisms applicable to the UK and considers the UK’s engagement with the relevant monitoring processes (Eds).
On 10 November 2022 the UN Human Rights Council conducted its fourth Universal Periodic Review of the UK’s compliance with international human rights standards. The Council’s report was adopted just six days later and contained no fewer than 302 recommendations from other States on how the UK could improve its human rights record. That figure is up from 227 in 2017. For early accounts of the review meeting see the pieces by Marcial Boo and Robert Booth.
The UPR, of course, is just one of many international mechanisms for monitoring human rights in the UK. In a book published this month, International Human Rights Monitoring Mechanisms: A Study of their Impact in the UK, I examine the full range of monitoring mechanisms to which the UK is subject and attempt to evaluate how they have operated to date, especially since 2000. In particular, I try to determine what difference they have made to the protection of human rights in practice. The analysis extends to monitoring conducted by a committee of the International Labour Organisation and by the Council of Europe’s Group of States against Corruption (GRECO), two bodies which do not usually attract the attention of human rights lawyers.
The proposed requirement for social media platforms to delete ‘legal but harmful’ content has been partly removed from the Online Safety Bill. While the change affects adult users, the requirement to prevent children being exposed to harmful content remains in the Bill. Culture Secretary, Michelle Donelan, denied that this change was ‘weakening’ the laws protecting social media users because there will be more control about what people see on specific sites. The kinds of material people will have control over include content promoting eating disorders or inciting hate on the basis of race, gender, or religion. The removal of the ‘legal but harmful’ element of the Bill has been welcomed by many who criticised it for ‘posing a threat to free speech’. Lucy Powell MP, however, states that the removal of the section gives a ‘free pass to abusers and takes the public for a ride’.
The Domestic Abuse Commissioner has warned that a ‘deeply unjust’ postcode lottery puts victims of domestic abuse at greater risk depending on where they live in the country. The statistics demonstrate that regional inequalities exist in terms of accessing support for domestic abuse, with a 21% difference between the highest performing area (the North-East) and the lowest performing area (Wales). The report also found that black and minority ethnic victims of domestic violence struggle to access necessary support. Consequently, the Commissioner has urged that the Victims Bill place a duty on local authorities to conduct needs assessments along with a new central obligation to provide greater funding to meet those needs.
New data has revealed that 40 potential breaches of the ministerial code have never been referred for investigation by the ethics adviser. In discovering this, the report stated that it would be concerning if Rishi Sunak’s new adviser was not allowed to examine historical cases, which a parliamentary committee warned would be the case previously. One of the recommendations of the report is to make former ministers and civil servants who break the rules regulating the relation between government and the private sector face legal action.
The High Court has been asked to decide whether a teenager who is on life-support following an apparent suicide attempt can be allowed to die. Hospital bosses have prospectively asked whether it would be lawful to remove life-support treatment, but the trial has been adjourned until the new year so that the family could have ‘as normal and as peaceful’ a Christmas as possible.
In the courts
In The Good Law Project v The Prime Minister  EWCA Civ 1580, the Court of Appeal dismissed an appeal and a claim for judicial review regarding duties owed in relation to public records under section 3(1) of the Public Records Act 1958. S3(1) establishes a duty on ‘every person responsible for the public records… to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping.’ The substantive issues on appeal were (i) whether this duty extended to the preservation of records before they are selected; and (ii) whether there was a duty to comply with 8 published policies. In respect of the first issue, the Court held that Parliament did not impose a general duty to retain public records and did not specify that records were to be retained pending their selection. The Court was not willing to find that the duty was implied either, as to do so would mean the duty applied to all records which would overwhelm the Departments and the National Archives . In respect of the second issue, the Court found that there was no duty to comply with the policies. Importantly, they were directed to ministers and civil servants, not to the public. the Appellant could not, therefore, enforce it against the Respondent. The policies were internal and could not be framed as absolute duties not to use certain methods of communication.
In Kays v Secretary of State for Work and Pensions  EWCA 1593, the Court of Appeal dismissed an appeal against the refusal of a claim for universal credit. The Appellant was a student with severe disabilities. He applied for universal credit under the understanding that students in receipt of disability living allowances are entitled. His claim was refused because he had not been assessed as having limited capability for work before the claim was made (as per the 2020 Regulations), which he claimed was unlawful. The grounds for appeal were that the Respondent acted irrationally in deciding not to consult before making the 2020 Regulations, and that it resulted in arbitrary results. It was held that no duty exists to consult on the making of regulations; the Respondent was not obliged to consult and did not see anything necessitating her to do so. It was held that there was nothing irrational in that approach . It was also held that the 2020 Regulations did not lead to arbitrary results because the issues complained of were not caused by the Regulations themselves. The opportunity to obtain an assessment of work capability was contained in the relevant regulations before the 2020 Regulations were made .
In Ware v French  EWHC 3030 (KB), the High Court found in favour of the Claimant in a defamation trial regarding the Panorama documentary ‘Is Labour Anti-Semitic?’ that aired in July 2019. An article was published in Coldtype magazine by the Defendant entitled ‘Is the BBC Anti-Labour? Panorama’s biased AntiSemitism Reporting – A Case to Answer, an investigation by Paddy French’. The Claimant, the programme’s reporter, claimed that the article was defamatory because it caused him serious harm by describing him as a rogue and biased journalist. This position was described as ‘overwhelming’. The wide dissemination of the article, the large interest in antisemitism within the Labour Party, and the Claimant’s high profile as a journalist all contributed to a situation where the allegations directly impacted the Claimant’s ability to earn a living.
The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.
Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.
Elon Musk’s takeover of Twitter has made headline news over the past few months. Attention firstly focused on whether it would happen at all. Once the acquisition was completed, public opinion turned to Musk’s plans for the platform: to make Twitter a bastion of free speech in opposition to an age of censorship. As these reforms have begun to unfold, news outlets have looked at the treatment of staff during this period of ‘transition’.
What is interesting, however, is that these episodes are not taking place in a contextual vacuum. At the same time that Musk brags that “the bird is freed”, the Online Safety Bill passes through Parliament with an aim to control information on social media platforms. The Bill sets out to regulate what Musk’s Twitter sets out to deregulate.
Does the Bill salt the bird’s tail, caging what has only just been freed? Where should the balance be struck between social media freedom and social media protection?
The deceased had died in her own flat in July 2018 whilst under long-standing psychiatric care for schizophrenia. At the time she was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust who had failed to return to the unit when expected She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. She had failed to return to the unit when expected. As noted by the Lord Chief Justice (delivering the judgment of all the court) at  there was no basis for suggesting that she had taken her own life.
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