Universal Credit childcare payment system indirectly discriminates against women

8 February 2021 by

R (Salvato) v Secretary of State for Work and Pensions [2021] EWHC 102 (Admin)

As any working parent will tell you, childcare is expensive.  Unlike in some other European countries, there is no universal provision of free or affordable childcare for school age children in the UK.  This can create a barrier for parents, especially lone parents, returning to work.

There is some support in the system of universal credit, a means-tested benefits for families on low income.  This provides for a childcare costs element (CCE), which allows eligible claiming parents to be re-imbursed up to 85% of the costs of childcare. 

However, the system has a flaw.  Unlike other parts of universal credit, such as the housing costs element (HCE), a claimant is entitled to be paid the CCE only if she has already paid the charges, rather than merely incurred them (the ‘Proof of Payment rule’).  This means that a parent claiming the CCE (who is disproportionately more likely to be a woman) must first pay her childcare provider and then re-claim the costs several weeks afterwards.  Some may not be able to afford to do so.

Ms Salvato is one such lone mother, who brought judicial review proceedings claiming that the differential method for reimbursing childcare costs constituted indirect discrimination against women contrary to Article 14 (read with Article 8 and/or Article 1 Protocol 1) ECHR and was irrational at common law.  The Administrative Court agreed on both grounds.


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Atmospheric pollution relevant to asylum claim, holds French court

2 February 2021 by

Air pollution is particularly high in Bangladesh, the asylum seeker’s country of origin

On 18 December of last year, a judgment was handed down by the cour administrative d’appel à Bordeaux (the appeals court of the administrative court of Bordeaux) which, until quite recently, went under the international radar. In a landmark judgment, the Court ruled that the respondent, an asylum seeker from Bangladesh (‘Mr A’), could not be returned to his country of origin owing to two medical conditions: allergic asthma and sleep apnea. What was remarkable about this judgment was that it was the first time that a French court has taken pollution into account in a decision of this kind. The Court stated:

[Mr A] would be confronted upon arrival in his country of origin […] with a worsening of his respiratory disease because of the atmospheric pollution.

An article published by the Guardian brought the case to the attention of the British media, and the story has since been picked up by a number of national papers. This article will seek to shed light on the judgment, which is only available in French, and the legal circumstances leading to this groundbreaking decision.


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General Warrants to Hack Computers Unlawful: Privacy International v IPT

1 February 2021 by

Supreme court grants FBI massive expansion of powers to hack computers |  Data and computer security | The Guardian
Credit: The Guardian

In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.

The Issues

There were three issues:

1.     Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).

2.     Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?

3.     If permission is given to amend the claim, should the new ground succeed?


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The Weekly Round-up: Employment Rights, ‘Spy Cops’, and Abandoned Rape Prosecutions

1 February 2021 by

In the news:

The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage.  This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law.  Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’.  During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work. 


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What is a continuing nuisance?

30 January 2021 by

Harrison Jalla and others v. (1) Shell International Trading and Shipping Company (2) Shell Nigeria Exploration and Production Company Limited [2021[ EWCA Civ 63read judgment

A traditional phrase in the common law, such as “continuing nuisance”, may mean a number of things in different contexts, as we will see clearly from this oil spill case. The claimants argued, unsuccessfully, that the presence of oil from the spill which had come onto their land was a continuing nuisance for as long as it remained there – which, they said, should get them around the limitation problems in their claims.


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“No case to answer” — Stansted 15 convictions quashed by Court of Appeal

29 January 2021 by

Inside Stansted Airport, where this incident took place

Thacker & Ors v R. [2021] EWCA Crim 97 (29 January 2021), judgment here

The Court of Appeal held today that a group of activists who broke into Stansted Airport in an act of protest should “not have been prosecuted” for an “extremely serious” terror-related offence under s.1(2)(b) of the Aviation and Maritime Security Act 1990 (“AMSA”).

BACKGROUND

The defendants/appellants in this case were a group of activists who have become known as the “Stansted 15”.

On 27 March 2017, the appellants surrounded a Boeing 767 at Stansted Airport which had been chartered by the Home Office for the purpose of deporting 60 individuals to Ghana, Nigeria, and Sierra Leone.

Equipped with makeshift tripods made from scaffolding pipes and some builder’s foam, the appellants cut through the perimeter fence of the airport and used the tripods a to lock themselves together, surrounding a plane and using the foam to secure the locking mechanisms. By ‘locking on’ to each other, the group prevented the use of the plane.


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Law Pod UK New Episode: “Historical” Crimes: Ireland’s unmarried mothers and their children

26 January 2021 by

In episode 135 of Law Pod UK, Emma-Louise Fenelon speaks to Máiréad Enright about Ireland’s recent Mother and Baby Homes Commission of Investigation Report which prompted an official State apology from the Taoiseach (Irish Prime Minister) Micheál Martin. 

Máiréad Enright is a Leverhulme Research Fellow and Reader in Feminist Legal Studies at Birmingham Law School. Her current work is on reproductive rights, activist legal consciousness and historical reproductive injustice. She tweets @maireadenright

See a blog post she authored on the Oxford Human Rights Hub on the Mother and Baby Homes Commission report here.

The episode also mentions:

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

The Weekly Round-Up: Human Rights vs Unfettered Trade: a Party divided?

25 January 2021 by

The UK government steals billions from the poor to fund illegal wars in the  Middle East – Middle East Monitor

In the news:

Last week’s round-up detailed China’s ongoing oppression of Uyghur Muslims in Xinjiang province. This week, the government narrowly defeated a backbench rebellion in the form of an all-party amendment, strongly endorsed in the Lords, which would have given victims of genocide the ability to obtain a determination in the High Court confirming the existence of genocide in their country. Such a determination would have required Parliament to reconsider all trade deals with the country in question. The amendment aimed to deal with a current impasse whereby international courts cannot make a ruling on genocide because the involved nations, for example, China, veto such matters from consideration, or do not recognise the relevant courts. The Trade Secretary, Greg Hands, had strongly opposed the amendment, suggesting that it fundamentally undermined Parliamentary sovereignty in giving the courts too much power to determine UK trade deals. The government’s failure to act in seeking to prevent serious violations of human rights has been widely criticised. Tobias Ellwood, the chair of the defence select committee, suggested that ‘the UK was suffering from an absence of clarity about what we believe in’. In response to the motion’s defeat, the independent peer Lord Alton, who co-sponsored the motion in the Lords, has stated that the amendment will be re-drafted to make explicit the requirement that Parliament would vote on the revocation of all trade deals with a country where a determination of genocide had been made. The revised amendment will be re-submitted in the Lords as quickly as possible. The US State Department’s declaration that the treatment of Uyghur Muslims in China represents genocide and crimes against humanity on Tuesday, is likely to embolden rebels to maintain their pressure on the UK government for further action.


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Enforced wearing of masks declared unconstitutional

25 January 2021 by

Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.

The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.


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German District Court declares Corona Ordinance Unconstitutional

25 January 2021 by

In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)

Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)

In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.

This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentary quoted below).


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“Wrongful Life” Revisited

21 January 2021 by

In Evie Toombes v. Dr. Philip Mitchell [2020] EWHC 3506 the High Court has given renewed consideration to claims for, so called, “wrongful life”. Can a disabled person ever claim damages on the basis that they would not have been born but for the defendant’s negligence? The Court answered that question with a resounding “yes”.

The Issue

Where a disabled child would not have been born but for the Defendant’s negligence, it is well established that their parent has a claim for the reasonable costs associated with the child’s disability . That is a “wrongful birth” claim: see Parkinson [2001] EWCA Civ 530. However, the child cannot bring a claim for personal injury on the basis that, with competent advice, their mother would have chosen a termination. In McKay v. Essex Area Health Authority [1982] 2 All ER 771 the Court of Appeal affirmed the principle that a disabled claimant cannot sue for “wrongful life”. In Toombes the Court reconsidered the scope of that prohibition. Did it apply only to termination cases? Or did it extend to claims that, absent the negligence, a disabled person would never have been conceived?


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Assange cannot be extradited, but free speech arguments dismissed — an extended look

21 January 2021 by

In The Government of the United States v Julian Assange (2021), the District Judge sitting at Westminster Magistrates’ Court discharged the American extradition request against the founder of WikiLeaks because there is a substantial risk that he would commit suicide. Given Julian Assange’s political notoriety as an avowed whistle-blower, however, the judgment is significant for its dismissal of the defence’s free speech arguments. This article analyses why these human rights submissions were unsuccessful.

The Criminal Charges against Assange

In December 2017, Assange was charged with a conspiracy to commit unlawful computer intrusion contrary to Title 18 of the US Code. Assange is alleged to have conspired with Chelsea Manning to steal classified material. Manning was previously convicted by court martial in July 2013 for violations of the Espionage Act 1917 and other related offences.

Subsequently, in May 2019, a federal grand jury returned a superseding indictment containing eighteen counts alleging further offences related to the obtaining, receiving and disclosure of “National Defense Information” (contrary to Title 18).

The information Assange is alleged to have unlawfully acquired and published relates to the illegal actions of the United States’ military and intelligence agencies during the wars in Afghanistan and Iraq, as well as the abusive treatment of detainees at Guantanamo Bay. An extradition request was submitted to the British government in June 2019.


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Overseas Operations Bill: Getting Away With Murder – Dr Ronan Cormacain

20 January 2021 by

Pardons versus failure to prosecute

One of the many outrages perpetrated by Donald Trump in the waning of his Presidency was granting a pardon to four private military contractors for their role in the Nisour Square massacre.  Those military contractors had opened fire indiscriminately, killing 14 Iraqi civilians, including two children.  

As with many of Trump’s assaults on the Rule of Law, the thought was that this kind of abuse could not happen in the UK. But certainty over our moral high ground will be short-lived if Parliament passes the Overseas Operations (Service Personnel and Veterans) Bill – a Bill whose precise aim is to make it much harder to prosecute British military personnel for abuses (including murder) carried out overseas.  The Bill reaches Second Reading this week in the House of Lords.

Hurdles to prosecution under the Bill

The Bill introduces three substantial hurdles to the prosecution of British soldiers if the incident took place overseas more than five years ago.  The first is that prosecutions must only be “exceptional circumstances”.  The second is that the consent of the Attorney General is required.  The third is that, in contemplating prosecutions, prosecutors must place particular weight on a list of exculpatory factors, but with the absence of a list of factors tending in favour of prosecution.


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The Weekly Round-up: A British response to Uyghur forced labour

19 January 2021 by

In the news

For several years, China has been enacting a policy of repression and brainwashing against over a million Uyghur Muslims in its northwest Xinjiang province. Reports include instances of forced sterilisation. Its hundreds of ‘re-education’ camps have been revealed as places where contact with relatives, the ability to pray and even when to use the toilet are tightly controlled. A leaked document reveals the state’s use of algorithms to score inmates on a ‘behaviour-modification’ points system, which tells guards when to mete out rewards and punishments. Absent from their homes, Uyghur places of worship are secretly bulldozed en masse.

On Tuesday, the UK government announced new rules that seek to prevent UK companies profiting from forced Uyghur labour. Companies will have to demonstrate that their supply chains are free from slavery. Public procurement rules will also attempt to exclude suppliers with links to human rights violations. This new policy appears to implement Key Proposal no. 5 of the newly created China Research Group, a think tank set up by Tory MPs to ‘counter violations of international universal human rights’. The ERG-style group was formed after China’s coronavirus cover-up operation became clear.


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The environmental implications of the Brexit deal

18 January 2021 by

Most UK people’s 2020 Christmas eves were cheered by the news that we had some sort of Brexit deal – here, in all its majesty. Given the deadline for no deal, some deal, however thin, was a good deal better than nothing, with the ill-tempered chaos between the UK and a major trading partner which would have followed from the latter.

News in the last few weeks has concentrated on some of the immediate supply chain issues (notably fishing) which affect businesses, and whether those issues are long-term and intrinsic in any non-single-market Brexit (my view), or can be ironed out in time (as Leavers say).

But there are other long term issues such as environmental protection which are potentially affected by the deal. These have not really picked up in the media. One exception is the very helpful briefing by Greener UK (a group of the major UK environmental NGOs) – here.

The prism for any analysis of the deal is that it is a Trade and Cooperation deal, and the environmental commitments, such as they are, are tied into trade implications – to retain a level playing field for that trade.

The other thing to remember is that it is a public international law agreement, full of the terminology of such agreements, well trodden by the EU in terms of external agreements, and more generally. Put the other way, don’t read it like an EU directive, let alone a UK statute.

To a seasoned follower of environmental policy in Europe, its terms are like winding the clock back 40-odd years. The initial environmental directives (notably on water and waste in the mid-1970s) had no express Treaty hook on which to be hung. The hook only arrived with effect from the end of 1992, when the Treaty was amended. So environmental policy measures in those early days were couched essentially in trade terms.

So what does the deal (a.k.a the Trade and Cooperation Agreement or TCA) tell us? Here are my first thoughts.


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