The Weekly Round-up: The Troubles legacy act, French migration, and Colorado and Maine disqualifications 

6 January 2024 by

In the News

The Irish government has announced it will challenge the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 in the European Court of Human Rights. The Act, which came into force in September 2023, was created to address the ‘legacy of the Northern Ireland Troubles’. The legislation has been controversial because it allows individuals accused of Troubles-related offences to be granted immunity in return for cooperation with the newly-formed Independent Commission for Reconciliation and Information Recovery (ICRIR). The Act is already facing a number of legal challenges in the Belfast High Court. In this latest challenge, the Irish government will ask Strasbourg whether the Act is compatible with the UK’s obligations under the European Convention on Human Rights. 

Meanwhile, in France, new legislation has been passed which significantly toughens French immigration rules. The bill went through several iterations, with the final version including much harsher provisions than originally proposed. It includes measures for reducing access to social security benefits for immigrants, migrant quotas, and toughened rules for family members of migrants. The bill has been criticised by Human Rights Watch for putting ‘the rights of foreigners at risk.’ 

In the US, Donald Trump has been disqualified from running as a presidential candidate in Colorado and Maine. The Colorado Supreme Court was the first state to rule that Donald Trump should not be allowed to run for president because of Section 3 of the 14th Amendment, which disqualifies people who engage in ‘insurrection or rebellion’ from holding any office. The Colorado ruling has been appealed, and the Supreme Court is expected to decide whether to intervene on the issue early this year. 

In other news 

Before the Christmas break, the Court of Appeal ruled that the government’s approval of the planned Sizewell C nuclear plant in Suffolk was lawful. The legal challenge was brought by Together Against Sizewell C (TASC), who argued the government had failed to consider the need for a water supply when it approved the nuclear plant in Suffolk. The Court of Appeal disagreed, holding it was logical for the government to consider the issue of water supply separately from the plant itself. The protest group has said it would continue to fight against the development. 


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The mirror crack’d from side to side: Dalton’s application for judicial review [2023] UKSC 36

5 January 2024 by

In Lord Tennyson’s Arthurian ballad ‘The Lady of Shalott’, the eponymous heroine is stranded in her island castle. Continually weaving a web in her loom of the reflections of the outside world she sees in her mirror, she knows she will be cursed if she stops and looks out to nearby Camelot. But one day, Sir Lancelot rides by her castle and she abandons her loom and looks outside. Her mirror cracks “from side to side” and she is cursed. She leaves her castle and floats down to Camelot in a boat, dying before she reaches it.

Victorian poetry scholar Erik Gray analyses the Lady of Shalott as Tennyson’s exploration of the role of an artist: knowing what is better (staying inside and looking at reflections of the real world) and choosing to do what is worse (going outside into the real world). Just as the Lady of Shalott’s mirror cracked, the Supreme Court in Dalton’s application for judicial review marked possibly one of the largest cracks yet in the mirror principle: that the rights provided under the Human Rights Act 1998 (HRA) should mirror those under the ECHR. But this analogy with the Lady of Shalott raises two important questions: was the jurisprudence flowing from the mirror principle better and is the turn away from it worse?

At the outset, I acknowledge my involvement in the Dalton litigation. This post is not an exploration of that litigation. Instead, I look at the possible impact of the Supreme Court’s judgment on the mirror principle and what it may tell us more broadly about the HRA.


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Law Pod UK latest episode: The Most Significant Cases of 2023

5 January 2024 by

In Episode 191 Jon Metzer and Lucy McCann join Rosalind English to review the judgements and decisions of the past year that we at Law Pod UK consider to have the most important implications for the law. The cases we discuss are the following:

R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) and others [2023] UKSC 42

R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20

Joy Dove (Appellant) v (1) HM Assistant Coroner for Teesside and Hartlepool, (2) Dr Shareen Rahman (Respondents) and Secretary of State for Work and Pensions

Pickering Fishery Association by Martin Smith, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2918 (Admin)

Adil v General Medical Council [2023] EWHC 797 (Admin)

McCulloch v Forth Valley Health Board [2023] UKSC 26

Thaler (Appellant) v Comptroller-General of Patents, Designs and Trademarks (Respondent)

Should there be a statutory public inquiry into the murders and attempted murders by Lucy Letby?

Lord of the Rings Copyright Case

Griffiths v. TUI UK Limited: Evidence, Challenge and Fairness

3 January 2024 by

Overview

The central question facing the Supreme Court in Griffiths v TUI UK Limited [2023] UKSC 48 concerned the extent to which a party must put criticisms of a witness’ evidence to him in cross-examination. The Supreme Court made clear that the general rule in civil cases is that a party is required to challenge by cross-examination the evidence of any witness (whether factual or expert) if he wishes to submit that the evidence should not be accepted by the court. Importantly, this rule is not confined to allegations that the witness is dishonest. The rule is, however, a flexible one; it will not always be necessary for every point of challenge to be put to a witness, and in some cases (such as where evidence is “manifestly incredible”) it may not apply at all. Although the Supreme Court gave a conceptually clear answer to the question before it, difficult practical issues are likely to continue to arise for trial advocates who wish to challenge factual or expert witness evidence.


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A newcomer to the world of injunctions

19 December 2023 by

Factual background

The appeal in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 concerned injunctions obtained by over 38 different local authorities between 2015 and 2020 to prevent unauthorised encampments by Gypsies and Travellers. These “newcomer injunctions” as they are known, are a wholly new form of injunction, granted without prior notice, against persons unidentified at time of the grant of the injunction and who have not yet performed, or even threatened to perform the acts which the injunction prohibits. They therefore apply “to potentially anyone in the world” [143(i)].

Local authorities sought to use such injunctions, due to the inefficacy of obtaining an injunction against named Gypsies or Travellers who, by the time proceedings have commenced, have left, and been replaced by another group, against whom the injunction has no effect.


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Defra’s generic plan for river clean up unlawful – local focus on water bodies needed

15 December 2023 by

Pickering Fishery Association by Martin Smith, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2918 (Admin)

Now upheld on appeal, Wednesday 2 April 2025: see the Office of Environmental Protection summary here

Brief Overview

This interesting case concerns a problem endemic to the manner of regulating water bodies under the Water Framework Directive and the regulations passed under it. This is what happened.

The anglers’ group Pickering Fishery Association raised concerns with the Environment Agency regarding the deterioration in the water quality of the Upper Costa Beck (“UCB), a ground water fed stream in North Yorkshire. It is described by the water campaigning group that acted for them in this litigation as “one of the best trout and grayling rivers in Yorkshire”.  They owned the leasehold and freehold fishing rights for most of the UCB. The UCB provides water to two fish farms and downstream is the Yorkshire Water’s water treatment works, which discharges back into the UCB. 

The claimant’s concerns included the impact of the recorded sewage overflows from Pickering Waste-Water Treatment Works; the level of sediment deposits resulting from the fish farm ‘suspended solids’ emissions; and the adequacy of the Environment Agency’s environmental permit conditions and other controls. Sewerage overflows from the water treatment works occurred over 250 times in 2020 and over 400 times the year before. 


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Law Pod UK latest: Toxic Torts

11 December 2023 by

Episode 190: join environmental law expert David Hart KC of 1 Crown Office Row and Roy Harrison, professor of public health and expert in airborne emissions of Birmingham University, for a fascinating and disturbing discussion of two cases concerning the contamination of the environment in countries where enforcement standards are not as strong as they are in the West. You will hear both the scientific details of how these contaminants behave when they get into the environment, and the practicalities of getting class actions going in the courts to bring the polluters to book.

One of the main cases discussed in this episode is still ongoing so no citation is available. Details of the Trafigura case can be derived from the Court of Appeal’s cost assessment following the settlement of the case Yao Essaie Motto and others v (1)Trafigura Limited and (2) Trafigura Beheer BV.

We have the Royal Society of Chemists to thank for this interesting discussion, in particularly the Society’s Toxicology Group which held a seminar in November to bring scientists and lawyers together to explore current perspectives on environmental toxic tort claims and review recent cases.

Let’s talk about sex: case note on For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37

5 December 2023 by

In For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 (“For Women Scotland 2”), the Inner House of the Court of Session has confirmed (for Scotland, at least) the relationship between the Gender Recognition Act 2004(“GRA”) and Equality Act 2010 (“EqA”). In summary, it was held that the meaning of sex in s.11 EqA incorporated the GRA framework. The upshot is that, for transgender people, sex under the EqA is determined by possession of a GRC. Thus, for EqA purposes, the sex of a transgender person without a GRC is their natal sex. On the other hand, the sex of a transgender person with a GRC is their “acquired” (to use the language of the GRA) gender.

This case note briefly sets out some of the relevant law, explores the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.


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The Weekly Round-up: Gaza reprieve, Covid-19 Inquiry continues, and oil-spill litigation in the Niger Delta

27 November 2023 by

In the news 

Fighting in Gaza paused this weekend, as Hamas and Israel agreed to a temporary, four-day reprieve. Twenty-six hostages have been released by Hamas and 39 Palestinian detainees held in pre-trial detention have been allowed to return to the West Bank. Under the terms of the agreement negotiated by Qatar, a total of 50 Israeli hostages and 150 Palestinian detainees are meant to be exchanged between the parties. The temporary pause in fighting has also allowed much-needed humanitarian assistance and fuel to reach the Gaza strip. 

The Covid-19 Inquiry heard evidence this week from Sir Patrick Vallance (former Government Chief Scientific Adviser), Professor Sir Chris Whitty (Chief Medical Officer for England) and Professor Sir Jonathan Van-Tam (former Deputy Chief Medical Officer for England). In his statement, Sir Patrick Vallance said the Government’s scientific advisers were not consulted on Rishi Sunak’s Eat Out to Help Out scheme and ‘didn’t see it before it was announced.’ This undermines written comments made by Rishi Sunak to the Inquiry, where he said that no one raised concerns with him about the policy. Meanwhile, Sir Chris Whitty said in March 2020, ministers mistakenly understood ‘herd immunity’ to be a government policy objective, and he tried to stop the idea from being discussed publicly because herd immunity would have been ‘inconceivable.’ The inquiry will hear further evidence this coming week. 

Meanwhile, Ian Fry, the UN’s Special Rapporteur on the promotion and protection of human rights in the context of climate change, has recently condemned the jail sentences for two Just Stop Oil protesters who scaled a bridge on the Dartford Crossing last October. The activists were given two and three year prison sentences for causing a public nuisance, and were refused permission to appeal to the Supreme Court on the basis that their sentences met the ‘legitimate aim’ of deterring others from similar offending. Ian Fry raised concerns about the length of the activist’s sentences, and the political flow-on effect the sentences could have on activists expressing concerns about the environmental crisis ‘and the impacts of climate change on human rights and on future generations’. Fry said the new Public Order Act was a ‘direct attack on the right to the freedom of peaceful assembly.’ There has not been any response from the Government. 

In other news 

The Information Commissioner’s Office (ICO) said this week that some companies are not giving users ‘fair choice’ about the use of cookies. Cookies are small files that store on your computer and collect analytical data about website usage. They are often used to personalise ads based on a user’s browsing history. The law regulating the use of cookies (the Privacy and Electronic Communications Regulations) will be altered by the proposed Data Protection and Digital Information Bill, which is due its third reading in the House of Commons on 29 November 2023. Under the proposed reforms, some information – for improving website service or security – will be collected without consent, resulting in fewer ‘pop-ups’ requesting the user consent to cookies. The ICO has not yet named the companies it thinks are falling short of current guidance, but will provide an update in January.

Meanwhile, the National Women’s Prisons Health and Social Care Review was published this week. Established in 2021, the Review is intended to improve health and social care outcomes for women in prison and upon their release. Conducting a review of the 12 women’s prisons in England, the Review found healthcare across women’s prisons to be ‘inconsistent’ and not always ‘gender specific’ or sensitive to women with protected characteristics. It suggests ‘fabric improvements’ across the women’s estate should be made. 

Finally, the independent review into Lancashire Police’s handling of Nicola Bulley’s death was also released this week. Bulley went missing in January, and was found three weeks after her disappearance in the River Wyre. Amongst other findings, the report says Lancashire Police should have been better prepared to communicate sensitive medical information about Bulley in a more ‘carefully constructed manner’. 

In the Courts 

The “Bille and Ogale Group Litigation”. Mrs Justice May handed down the latest judgement in the ongoing litigation between communities and individuals of the Niger Delta, and the oil giant, Shell. The case concerns oil contamination affecting two regions of the Niger Delta – the Bille and Ogale regions. In her judgement, Mrs Justice May held the claimants could bring new causes of action under the African Charter and Nigerian Constitution, which recognise ‘as a fundamental right the right to a clean and healthy environment’. There is no limitation period for human rights claims brought under the Nigerian Constitutional framework.  Mrs Justice May also refused the Defendant’s application to strike out the claims. The case continues. 

In Independent Workers Union of Great Britain (“IWGB”) v Central Arbitration Committee (“CAC”) and another [2023] UKSC 43 the Supreme Court held that Deliveroo drivers are not in an employed relationship for the purposes of Article 11 ECHR (freedom of assembly and association). The case concerned Deliveroo riders in London who became members of the IWGB and sought formal recognition of the Union by Deliveroo for collective bargaining on behalf of Deliveroo drivers in Camden and Kentish Town. The Supreme Court stated that the right to form a trade union arises in the context of an employment relationship. Applying this to the facts of the case, the CAC rightly found there was no employment relationship between Deliveroo and its riders, as the riders can appoint a substitute to take their job, can work or not as convenient to them, and are not prevented from working for Deliveroo’s competitors. Thus, in this case, the riders are unable to rely on the trade union rights conferred by Article 11. The appeal was dismissed. 

Doctor’s suspension after questioning the severity of Covid 19 did not breach his Article 10 rights

20 November 2023 by

This was an appeal by a doctor against a decision of the medical practitioners’ tribunal that he was guilty of misconduct. He also appealed against the tribunal’s decision to suspend his registration for six months.

Factual and legal background

The appellant (“A”) is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. He had been working as a locum consultant surgeon at the North Manchester Hospital NHS Trust between April and October 2020. This was during the Covid-19 Pandemic and included the early stages of lockdown imposed by the Government. A appeared on a number of YouTube videos voicing his doubts about the severity of the COVID-19 pandemic. The gravamen of the allegations agains him was that he had used his position as a doctor to promote his opinions and that his actions were “contrary to widely accepted medical opinion” and had undermined public confidence in the medical profession.

This is what he is said to have alleged on the You Tube platform:

a. the Sars-CoV-2 virus and/or Covid-19 disease do not exist or words to that effect;
b. the Covid 19 pandemic was a conspiracy brought by the United Kingdom, Israel and America or words to that effect;
c. the Covid-19 pandemic was a multibillion scam which was being manipulated for the benefit of:
i. Bill Gates;
ii. pharmaceutical companies;
iii. the John Hopkins Medical Institute of Massachusetts;
iv. the World Health Organisation,
or words to that effect;
d. the Covid-19 pandemic was being used to impose a new world order or words to that effect;
e. the Sars-CoV-2 virus was made as part of a wider global conspiracy or words to that effect.

a. undermined public health, and/or;
b. were contrary to widely accepted medical opinion, and/or;
c. undermined public confidence in the medical profession.

When criticised about these activities, A undertook to remove the videos, but failed to do so.

Importantly, the GMC and the Tribunal considered that A’s opinions on mask wearing and the discharge of elderly patients from hospital might have been controversial, but that they remained within the domain of freedom of expression for doctors as well as the wider public. (My italics. The jury is still out on mask wearing, and the doctor in this case was rightly free to opine on their efficacy).

The problem was his pronouncements on social media that the virus was a hoax and did not exist, and his promotion of conspiracy theories suggesting that vaccines were in development for the deliberate harm or manipulation of the public

The GMC considered that A was guilty of misconduct and demonstrated impairment of his fitness to practise. It referred to the GMC’s “Good Medical Practice” and its guidance on “Doctors’ use of social media” and concluded that immediate suspension of D’s registration was appropriate.

Before the Tribunal, the GMC argued that A had used his position as a doctor in the UK to promote his opinions.

The gravity of the impact of the coronavirus and Covid-19 on public health was being explained on a daily basis to the public and disseminated to medical professionals. The general public was required to comply with the restrictions and the messages were provided to set out the rationale for the restrictions and the reasons compliance was required. …In the Tribunal’s view they ran counter to the public health messages being disseminated at the time.”

…”In the Tribunal’s view, and in the context of the status of the pandemic at the time, hearing such opinions expressed by an NHS consultant surgeon would, on the balance of probabilities, have the effect of undermining public health. One of the key government messages at the time was that compliance with restrictions [were] required to ‘Protect the NHS’.

The Tribunal considered that an NHS consultant asserting as fact such statements of the kind as set out above undermined important public health messages.

A submitted that (1) the tribunal’s decisions did not meet the Article 10 tests of necessity or proportionality; (2) the GMC’s guidance did not meet the Article 10(2) “prescribed by law” condition; (3) suspension was disproportionate and inappropriate, particularly given the 18-month period of successive interim suspension orders.

Appeal to the High Court

The grounds of appeal focussed primarily on whether the Tribunal’s decisions were consistent with A’s article 10 rights. Ground 1 was that the conclusions on misconduct and impairment were contrary to article 10(1) because they give rise to an interference with article 10 rights that was not “prescribed by law” that, for that reason alone, did not meet the requirements laid down within article 10(2) and is unlawful.

Ground 2 was that, in any event, the conclusions on misconduct and impairment were a disproportionate interference with A’s rights under article 10(1). Grounds 3 and 4 were aspects of Ground 2. The former was that the Tribunal was wrong to conclude that expressing views “outside widely accepted medical opinion” either amounted to misconduct or was capable of providing justification for interference with A’s right to freedom of expression. The latter was that there was no evidence to support a conclusion that what A said damaged the reputation of the medical profession. This too, it was submitted, goes to whether the conclusions of misconduct, impairment, and the penalty imposed could be proportionate interferences with A’s Convention rights. Ground 5 was that the decisions to impose a final order for suspension and to make an immediate order suspending Mr Adil pending any appeal were disproportionate in that each failed to give sufficient weight to mitigating or compensating circumstances.


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Unanimous Supreme Court: Rwanda removals are unlawful

15 November 2023 by

R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2023] UKSC 42

The Government’s flagship policy of removing individual asylum seekers to Rwanda for their claims to be decided under the Rwandan asylum system that was announced on 14th April 2022 has been found to be unlawful by a unanimous Supreme Court.

The Claimants were 10 individual asylum-seekers who entered the UK irregularly in small boats, together with one charity, Asylum Aid. There were also several interveners to the case, including the UN High Commissioner for Refugees (UNHCR) (whose counsel team was led by Angus McCullough KC of 1 Crown Office Row). The Home Secretary (whose counsel included Neil Sheldon KC and Natasha Barnes of 1 Crown Office Row) was the Defendant.

In December 2022, the Divisional Court (Lewis LJ and Swift J) dismissed the general challenge to the policy, as discussed here. But in June, the Court of Appeal, by a 2-1 majority (Sir Geoffrey Vos MR and Underhill LJ) found that the policy was unlawful, as discussed here.

The Supreme Court (Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lord Briggs and Lord Sales), in a judgment jointly authored by Lord Reed and Lord Lloyd-Jones, has now held unanimously that the policy is unlawful on the basis that there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (forcible return) to their country of origin if they are removed to Rwanda.


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The Weekly Round-up: Israel-Palestine war crimes, Assisted-dying, and SLAPPs

6 November 2023 by

In the news

As Israel’s ground invasion of Gaza begins, commentators and key global organisations are assessing whether international law is being broken by either side in the conflict. The UN said as early as 10th October that both Hamas and the Israeli military may have committed war crimes and that it is gathering evidence for potential prosecutions. Hamas’ terrorist attack of 7th October, which killed hundreds of noncombatants and abducted others for use as human shields and hostages, has already been labelled a crime under international humanitarian law. Meanwhile, Israel’s siege of Gaza, which includes shutting down food, water and electricity supplies and preventing humanitarian relief, may constitute the crime of collective punishment, according to the UN and the International Committee of the Red Cross. Karim Khan, the British barrister who currently acts as the ICC prosecutor, has said the ICC will pursue investigations into the 7th October attack as well as Israel’s activities in Gaza and the West Bank.

Donald Trump’s sons have taken the stand in their father’s fraud trial in New York. This case concerns the Trump family’s property business, and the prosecution hold that members of the family including Eric and Donald Trump Jr falsely inflated its finances and falsified records. Both sons of the property magnate denied wrongdoing and instead suggested an accountancy firm were to blame, with Trump Jr remarking in testimony that ‘I leave it to my accountants.’ Eric Trump was confronted with email evidence that, despite his assertions, he was in fact closely involved with the construction of the company’s financial statements. The prosecution are seeking a fine of $250m and a ban on Donald Trump and his adult sons doing business in the state.

The Isle of Man Parliament has progressed an assisted-dying legalisation bill. The private members bill was brought by Alex Allinson MHK (Member of the House of Keys), who labelled the proposal a move towards “compassion, choice, and autonomy,” while other MHKs spoke against the bill on the grounds that safeguards against coercion would be difficult to put in place. The bill has it that those eligible would have to conform to several criteria: terminally-ill, over the age of 18, resident on the Isle of Man for at least 12 months, and to have the legal capacity of make the decision and a “clear and settled intention to end their life.” Rob Callister MHK raised the concern that the island become a “death tourism” hotspot, should the bill be passed with its current residency minimum. The campaign group Dignity in Dying has called for the central government in Westminster to follow suit, the Royal College of Surgeons having recently withdrawn its opposition to the proposal.

In other news

The chair of the Bar Council has proposed a solution to the over-use of Strategic Litigation Against Public Participation (SLAPP). SLAPPs typically involve a powerful individual or organisation targeting financially-weaker journalists or publishers with the threat of bringing onerous legal actions. They have been the subject of much public criticism lately, and are described as undermining the democratic principles of free speech and the rule of law. Nick Vineall KC has suggested that those who cynically pursue claims in order to shut down legitimate criticism and public debate should be liable in damages for acting contrary to the public interest. “The public interest is damaged by not having access to information which should never have been restrained, while the reputation of the claimant is unjustifiably protected for a period because something which ought to have been said about them is not said for a period of time, and sometimes of course forever.” Speaking at the IBA conference in Paris, Vineall made a comparison to the practice of applicants for injunctions accepting an undertaking to pay damages in case their claim turns out to be unjustified and the injunction causes harm to the defendant. Listen to our interview with Greg Callus on the subject of SLAPPs on Law Pod UK here.

A leading thinktank has warned that Britain’s public services are stuck in a “doom loop” of recurrent crises as a result of government’s short-term planning. The Institute for Government said that, due to prioritising short-term goals over long-term solutions, underfunding public services, and reversing policy decisions within short periods of time, the British state is underperforming across a range of public services and organisations. “The result is crumbling schools, NHS computers that don’t turn on, and not enough prison cells to house prisoners.” The report cites the crown court backlog, standing in June at a record high of 64,709 cases, and concludes the prison system is “at bursting point” due to over-crowding and under-staffing.

The Scottish government has released a legislative proposal that would give ministers the power to assess and ‘remediate’ (repair or remove) buildings with unsafe cladding without owners’ consent and to evacuate the occupants of unsafe buildings. The Housing (Cladding Remediation) Bill creates a new offence for obstructing or failing to assist with assessment, and introduces the concept of a Scottish ‘responsible developers’ scheme, which would encourage developers to fund remediation work.

In the courts

In Scottish Association of Landlords v Lord Advocate [2023] CSOH 76, the Scottish Court of Session determined that the Cost of Living (Tenant Protection) (Scotland) Act 2022 did not disproportionately interfere with article 1 of the ECHR protocol 1, which states that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The court held that the Scottish government’s assessment of proportionality, in bringing a bill that caps rent and places a moratorium on evictions in private residential tenancies, did not proceed manifestly without reasonable foundation.

The Special Advocate – Not Waving but Drowning

30 October 2023 by

The unfairness of secret hearings is being aggravated by sustained neglect of the special advocate system.  In this piece I explain why I have regretfully concluded that I cannot accept any new appointments as a special advocate until the Government provides proper support for that system.

25 June 2023 was the tenth anniversary of section 6 of the Justice and Security Act 2013 (the JSA) coming into force.  It was an anniversary that, as far as I know, passed unremarked.  Nevertheless it was a remarkable anniversary – though not a cause for celebration.  This is because it marked 5 years since the date that Parliament had required a review of the controversial procedures under the Act, involving secret closed hearings – and yet the Government’s response to the recommendations from that review was still awaited.  Even now, no Government response has been forthcoming, nearly a year after the long-delayed report was published, despite the urgency attached to some of the recommendations.

What are these secret procedures?


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Hamas-supporting organisation loses rights claim in Strasbourg

26 October 2023 by

Internationale Humanitäre Hilfsorganisation v Germany (Application no. 11214/19), 10 October 2023

A German group that raises funds for the terrorist organisation Hamas has lost its claim under Article 11 (right to free association) in the European Court of Human Rights. Joshua Rozenberg’s report on the decision is here. The summary below is based on the Court’s judgment.

Background Facts


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Israel-Palestine Conflict, Surveillance of Teachers, and Pollution in Italy: the Weekly Round-Up

25 October 2023 by

In the news

The conflict between Israel and Hamas has continued to escalate, with some 1,400 Israelis and over 5,000 Palestinians dead, over 15,000 people injured, and over 600,000 people displaced. No end to the conflict, nor a ceasefire, is in sight. Aid entering Gaza remains far below the level required for the population size, and one-third of Gazan hospitals and nearly two-thirds of primary health care clinics have had to shut due to damage or lack of fuel. International law is being disregarded, both in the atrocious attacks by Hamas on October 7 and the subsequent retaliation by Israel, leading a group of prominent Jewish lawyers to pen an open letter in the FT (paywall) calling for restraint and an adherence to the rule of law. However, “proportionality” as a rule of international law in warfare has to be closely scrutinised when it comes to self defence. See Joshua Rozenberg’s extract from the speech given in the House of Lords by  Guglielmo Verdirame, a professor of international law at the King’s College London department of war studies. The law of armed conflict is a detailed and difficult area, and has not been properly attended to by media reports following the Hamas/Israel situation. Veridrame said, regarding proportionality,

“Israel has described its war aims as the destruction of Hamas’s capability. From a legal perspective, these war aims are consistent with proportionality in the law of self-defence, given what Hamas says and does and what Hamas has done and continues to do.”

The Home Secretary has met with the Met Commissioner after the Met chose not to intervene when protestors at a pro-Palestine rally chanted “jihad”.  The Met said “jihad” had numerous meanings and it believed, after consultation with the Crown Prosecution Service (CPS), that no offence had been committed. No. 10 has pushed back at suggestions that more police powers are needed, citing existing powers as adequate. The Immigration Minister, however, told ITV that “Chanting ‘Jihad’ on the streets of London is completely reprehensible … It is inciting terrorist violence”. The Merriam-Webster definition of “jihad” can be found here.

Greta Thunberg has been charged with a public order offence after she was arrested while taking part in a protest against a conference in London described as “the Oscars of oil”. According to the Met, she was charged with “failing to comply with a condition imposed under section 14 of the Public Order Act”. Police had demanded protesters move from the road on to the pavement. She was one of 29 arrested during a protest trying to stop delegates entering the Energy Intelligence Forum at the InterContinental London Park Lane in Mayfair.


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A2P1 Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Arrest Article 1 Article 1 Protocol 1 Article 2 article 3 article 3 protocol 1 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos Assisted Dying assisted suicide asylum Attorney General Australia autism benefits Best Interest Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Business care orders Caster Semenya Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Closed Material Proceedings Closed proceedings Coercion common law confidentiality consent conservation constitution contempt contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Arbitration for Sport Court of Protection covid crime Criminal Law Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability discipline disclosure Discrimination disease divorce DNA domestic violence DPA DSD Regulations duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment environmental rights Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice euthanasia evidence extradition extraordinary rendition Extraterritoriality Fair Trials Family family law Fertility FGM Finance findings of fact football foreign criminals foreign office Foster France freedom of assembly Freedom of Expression freedom of information freedom of speech Free Speech Gambling Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Hate Speech Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration immunity India Indonesia information injunction injunctions inquest Inquests international law internet interview Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Journalism Judaism judicial review jury jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice Mirror Principle modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland NRPF nuclear challenges nuisance Obituary open justice ouster clauses PACE parental rights Parliament parliamentary expenses scandal Parole patents Pensions Personal Data Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Procedural Fairness procedural safeguards Professional Discipline Property proportionality Protection of Freedoms Bill Protest Protocols Public/Private public access public authorities public inquiries public law reasons regulatory Regulatory Proceedings rehabilitation Reith Lectures Religion Religious Freedom RightsInfo Right to assembly right to die Right to Education right to family life Right to life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia sanctions Saudi Arabia school Schools Scotland secrecy secret justice Section 55 separation of powers Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Sports Law Standing statelessness Statutory Interpretation stop and search Strasbourg Strategic litigation Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel travellers treaty TTIP Turkey UK UK Constitutional Law Blog Ukraine UK Supreme Court Ullah unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability voting Wales war War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw World Athletics YearInReview Zimbabwe

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A2P1 Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Arrest Article 1 Article 1 Protocol 1 Article 2 article 3 article 3 protocol 1 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos Assisted Dying assisted suicide asylum Attorney General Australia autism benefits Best Interest Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Business care orders Caster Semenya Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Closed Material Proceedings Closed proceedings Coercion common law confidentiality consent conservation constitution contempt contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Arbitration for Sport Court of Protection covid crime Criminal Law Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability discipline disclosure Discrimination disease divorce DNA domestic violence DPA DSD Regulations duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment environmental rights Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice euthanasia evidence extradition extraordinary rendition Extraterritoriality Fair Trials Family family law Fertility FGM Finance findings of fact football foreign criminals foreign office Foster France freedom of assembly Freedom of Expression freedom of information freedom of speech Free Speech Gambling Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Hate Speech Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration immunity India Indonesia information injunction injunctions inquest Inquests international law internet interview Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Journalism Judaism judicial review jury jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice Mirror Principle modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland NRPF nuclear challenges nuisance Obituary open justice ouster clauses PACE parental rights Parliament parliamentary expenses scandal Parole patents Pensions Personal Data Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Procedural Fairness procedural safeguards Professional Discipline Property proportionality Protection of Freedoms Bill Protest Protocols Public/Private public access public authorities public inquiries public law reasons regulatory Regulatory Proceedings rehabilitation Reith Lectures Religion Religious Freedom RightsInfo Right to assembly right to die Right to Education right to family life Right to life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia sanctions Saudi Arabia school Schools Scotland secrecy secret justice Section 55 separation of powers Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Sports Law Standing statelessness Statutory Interpretation stop and search Strasbourg Strategic litigation Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel travellers treaty TTIP Turkey UK UK Constitutional Law Blog Ukraine UK Supreme Court Ullah unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability voting Wales war War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw World Athletics YearInReview Zimbabwe