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In Delve and Anor v SSfWP [2020] EWCA Civ 1199, the Court of Appeal dismissed the challenge brought against the series of Pensions Acts between 1995 and 2014 which equalised the state pension age for women with that of men by raising the state pension age for women from 60 to 65 and then raising the age at which both men and women can claim their state pension.
The Appellants were two women born in the 1950s, whose pension age has been raised to 66. They contended that although one of the aims of the Pensions Act 1995 was to end the discrimination based on gender, “this equalisation has run ahead of actual improvements in the economic position of women in their age group.” [2]
It was their contention that this gives rise to:
1. direct age discrimination contrary to Article 14 ECHR in conjunction with Article 1 of the First Protocol (A1P1); and
2. indirect sex discrimination contrary to EU law and indirect discrimination contrary to Article 14 on grounds of sex or of sex and age combined.
It was also argued that the Secretary of State failed in her duty to notify them far enough in advance of the fact that they would not, as they expected, start receiving their pension at age 60.
ELF are acting for acting for local residents in the Forest of Dean on a translocation of pine martens from Scotland. They discuss bats, other protected species and relative success of the introduction of beavers to the British Isles with Rosalind English.
On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year. He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.
The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.
Through a collaboration with the Environmental Law Foundation we bring you Episode 126, a panel discussion with environmental experts Mark Avery and Nikki Gammans in discussion with Carol Day, consultant solicitor with Leigh Day. This is the first instalment of two of these panel discussions.
A plethora of reintroductions of various species have been making the news recently, with such charismatic species as White Sea Eagles and Red Kites. Dr Mark Avery from Wild Justice discusses with Carol Day how well these projects are working. They also strike a note of caution about the proposal to reintroduce Hen Harriers in the south. Dr Nikki Gammans of the Bumble Bee Conservation Trust talks about the reintroduction of the Short Tailed Bumble Bee. This species as taken to New Zealand in colonial times, and the population remained there after it went extinct in the UK. The Bumble Bee Trust is running a project to bring them back to this country.
Harriet Harman MP, chair of the Joint Committee on Human Rights. Photo: Chris McAndrew
In the news
This week, 6 months after it was passed, the Coronavirus Act 2020 is due for a review in Parliament. In advance of that review, the Parliamentary Joint Committee on Human Rights has published a report on the human rights implications of the government’s response to COVID-19. In the report, the committee highlights a wide range of failings, including in particular: widespread confusion over what is law and what is guidance; police failing to fully understand their powers under coronavirus legislation; privacy, data protection and discrimination concerns about test & trace; reduced access to justice; disproportionate harm to school children with special educational needs and disabilities; and harms inflicted by blanket bans on visits to people in care homes, prisons, and mental health facilities. The report can be viewed here; the JCHR’s proposed amendments to the coronavirus legislation to be discussed this week are here.
The JCHR is also due on Monday to scrutinise the government’s Overseas Operations (Service Personnel and Veterans) Bill, which proposes a presumption against prosecution for service personnel and veterans. Concerns have been raised about the risks of the UK contravening its international legal obligations, and creating impunity for serious war crimes and torture.
Concerns about surveillance in the UK continue, as it was revealed this week that surveillance cameras manufactured by Chinese company Hikvision are being used across the UK; their use has expanded in the wake of the COVID-19 pandemic. Hikvision was blacklisted by the US government for human rights violations in connection with the Uighur concentration camps in Xinjiang. Hikvision says it has been engaging with the UK and US governments to “clarify misunderstandings”, and claims it is “committed to cybersecurity standards which are compliant with the most rigorous certifications and best practices.”
In a career defined as much by powerful dissenting judgments as by winning oral arguments, Ruth Bader Ginsburg blazed a trail particularly for women, but also minorities and the LGBTQI+ community, to receive equal treatment under the law. This article will follow that trail, from her early women’s rights arguments in the 1970s to her powerful dissenting judgments, which earned her the affectionate title of ‘the Notorious RBG’ in later life.
To commemorate her death last Friday at 87 years of age, this extended article will look at her extraordinary professional life.
The Prime Minister announces the lockdown on 23rd March. Image: The Guardian
Emmet Coldrick is a barrister at Quadrant Chambers, London. The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.
The first article in this two-part analysis examined whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.It can be found here.
This second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.
This is the second part of a blog post on this topic. The first part concluded part-way through a discussion of whether the Regulations fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.
Proper approach to interpretation where fundamental rights are in issue
A troubling feature of the section of the judgment in Dolan that deals with the ultra vires issue is that it makes no reference to the gravity of the restrictions on liberty imposed by the Regulations or of the fact that, on the Secretary of State’s case, the Act confers powers to impose still graver restrictions on fundamental rights. Instead, the judgment refers blandly at paragraph 43 to “the adoption of a range of measures”.
It is also regrettable that, while glossing over of the seriousness of the interference with fundamental rights that would be permitted if his interpretation of the Act were correct, the Secretary of State stressed the “threat”, submitting that “… it would be absurd if the provisions were to be read otherwise given the nature of the public health threat …” (judgment para. 36). That approach to the question of the scope of the Secretary of State’s powers is redolent of the kind reasoning that characterises justifications of rule by diktat and is the antithesis of the rule of law. A decree that no one may leave her home without reasonable excuse, or gather with more than one other person in a public place, is the sort of restriction that might be imposed by a totalitarian regime or an invading foreign power.
It is welcome that in his Reasons for granting permission to appeal, Hickinbottom LJ noted that “… not only did/do the challenged Regulations impose possibly the most restrictive regime on the public life of persons and businesses ever – certainly outside times of war – but they potentially raise fundamental issues concerning the proper spheres of democratically-accountable Ministers of the Government and judges”.
How the lockdown was reportedby the newspapersin March. Image: The Guardian
Emmet Coldrick is a barrister at Quadrant Chambers, London. The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.
This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England. They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).
These extraordinary new laws were made without prior debate in Parliament. The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.
On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one. The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”). That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.
Mr Dolan’s challenge is pending in the Court of Appeal. It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health[2020] EWHC 1786 (Admin) (6th July 2020). But the Act presents difficulties in interpretation that were not grappled with in the judgment. I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.
With Baroness Hale’s recent criticism of the emergency measures taken by the government ringing in our ears, the following information from across the Atlantic might be of interest. The New England firm Pierce Atwood LLP has compiled a list of class actions related to COVID-19 in the United States, including all filed and anticipated cases up to 9 September 2020. Although their survey only covers litigation in the US, a similar trend may be predicted in this country, albeit on a smaller scale, even as the pandemic continues to unfold: indeed Alethea Redfern has made reference to such a likelihood in this week’s Round-Up. The authors of the US report observe that, despite “unprecedented court closures and changing procedural rules”,
class actions have steadily increased and are expected to expand across industries, jurisdictions, and areas of law. The impact of COVID-19 on business operations, consumer activity, and economic forecasts has made clear that the filings to date are only an early indication of what is to come.
The report provides a categorised summary of coronavirus-related class action litigation filed to date, highlighting the core allegations of each complaint. You will find the individual case citations in their post on Lexology.
The Joint Committee on Human Rights has published a report which proposes that the Government must urgently consider the human rights implications of its Covid-19 measures.
The report drew attention to eight problem areas, claiming:
Last week, the Inner House of the Court of Session refused a reclaiming motion in relation to the use of racist, antisemitic and sexist WhatsApp messages in misconduct proceedings against ten police officers. The judgment discusses several interesting issues, such as the police officers’ reasonable expectation of privacy when exchanging such messages, which can be found here.
However, the focus of this article shall be on an aspect of the case which was not cross appealed: the existence of a common law right to privacy in Scotland. Despite not being an issue of contention, the Lord Justice Clerk, Lady Dorrian, took the opportunity to express her views on the matter. These now cast doubt over the existence of such a right – one which Lord Bannatyne, from the Outer House, believed was nascently recognised in case law.
In her latest episode Professor Catherine Barnard of Cambridge University comments on the transition period towards Brexit since the Withdrawal Act was implemented by the government in January this year when we formally left the EU. It was this act that the Internal Market Bill was set up to amend, and it’s the Internal Market Bill that’s been debated in Parliament. Listen to Catherine Barnard on the difficult border problems and other issues in our repost of 2903 CB.
The CJEU has ruled, in a first for that regulation, that the use of “Zero Tariff” contracts are inconsistent with its “Open Internet” regulation (Regulation 2015/2120). The regulation “aims to establish common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and end users’ rights”. Its intention is to legally establish the principle of ‘Net Neutrality’, whereby internet access providers are prohibited from giving preferential treatment (for example, limiting access or increasing traffic speeds) to specific websites and users.
The issue in this case was whether zero tariff contracts offered by Telenor, an Hungarian internet access provider, contravened net neutrality regulation. Zero tariff contracts provide data allowances to their users, (1 GB, for instance), which the consumer is allowed to use as they please. On running out of data, typically internet access would be stopped. However, in its two zero tariff contracts, called MyChat and MyMusic, certain websites and applications did not run down the data allowance. Furthermore, even once the data allowance had been used up, the same websites and applications could still be accessed, although otherwise no internet access was provided.
For a while, 6 Portuguese citizens, between the ages of 8 and 21, have been on the brink of starting proceedings in the European Court of Human Rights. Now it has happened. On 3 September 2020, they sent their claim to the ECtHR. They have been helped in its preparation by the Global Legal Network, which has helpfully put up here a summary as well as the salient parts of the documents sent to the Court.
The claim is against 33 Council of Europe countries (all the EU 27, plus the UK, Switzerland, Norway, Russia, Turkey and Ukraine) for failing to take sufficient steps to address climate change. The failures alleged include permitting emissions domestically, permitting the export of fossil fuels extracted from their territories, permitting the import of goods containing embedded carbon, and allowing entities domiciled in those countries to contribute to emissions abroad (via fossil fuel extraction elsewhere or its financing).
A major argument offered in defence is the one focused on the supremacy of domestic law over its international counterpart (see HMG Legal Position: UKIM Bill And Northern Ireland Protocol). The argument goes something like this: where domestic law appears to conflict with international law, Parliament reigns supreme and the domestic legislation is to have effect.
Strictly speaking, this is true. In contexts like the UK, with a dualist system requiring international treaties to be incorporated by an Act of Parliament, any international agreement that is not incorporated into domestic law, but which conflicts with an Act of Parliament, must give way.
But when the dust settles and the reality sets in that UK, as a country, must operate alongside other countries, there is likely to be a host of adverse implications to flow from this decision. Primary among these is, of course, that international law is law and the rule of law necessitates that the UK complies with its international obligations. This is obvious and it is a remarkable state of affairs that the point even needs to be made. Nevertheless, beyond the obvious, there are a multitude of other reasons not to flout international law, only a few of which are touched upon below.
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