The Weekly Round-up: industrial action laws, prioritising menopause, and Crown Court cameras

3 August 2022 by

In the news

  • On Monday 25 July, the Court of Appeal refused permission to appeal against a decision to end 12-year old Archie Battersbee’s life support treatment. The decision was stayed for 48 hours – until 2pm on Wednesday – to allow Archie’s parents to apply to the European Court of Human Rights for interim relief. On Tuesday 2 August, the family’s fresh appeal to the Supreme Court, based on ‘new evidence’ of Archie attempting to independently take breaths, was also refused.
  • Also on Monday, the London Central Employment Tribunal ruled in favour of Allison Bailey, awarding her £22,000 in her discrimination case. The Tribunal found that the barrister at Garden Court Chambers (GCC) had been victimised and discriminated against by her employer for expressing gender critical beliefs.  The claim against Stonewall Equality Ltd was dismissed; the LGBT charity worked with GCC, which had joined its ‘diversity champions’ scheme. Ms Bailey accused Stonewall of ‘trans-extremism’.
  • Thursday 28 July marked a historic moment for the UK’s legal system; for the first time, filming and public broadcasting was allowed in the Crown Court. Cameras recorded Sarah Munro QC sentencing Ben Oliver, who killed his grand-father in January 2021. Her judgement, handing down a life sentence with a minimum term of ten years and eight months, was accompanied by an informative explanation. 

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Discrimination and Freedom of Belief in the Sex and Gender Debate

3 August 2022 by

We do not usually cover first-instance employment tribunal judgments on this blog, but two cases handed down in the last three weeks – Forstater v. CGD Europe and Bailey v. Stonewall Equality Ltd and Garden Court Chambers – have attracted so much attention that we feel an exception must be made. Both cases involved women with ‘gender critical’ beliefs who faced hostility in their workplaces after expressing them. Both succeeded in their claims of direct discrimination and victimisation on grounds of belief under the Equality Act 2010. Although neither of the cases sets a binding precedent for other courts or tribunals, they contain interesting legal analysis and comment about the importance of freedom of expression and freedom of belief in the context of work which is of wider significance. 


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Vardy 0 – 1 Rooney: Wagatha Christie solved at last

1 August 2022 by

The judgment in Vardy v Rooney [2022] EWHC 2017 can be found HERE.

The case was a game of two other halves – Coleen Rooney, wife of Wayne, and Rebekah Vardy, wife of Jamie. Steyn J’s judgment left Rooney and her legal team punching the air and dousing themselves in champagne whilst Vardy cradled herself at the side of the pitch, reflecting on the moment she stepped up to take the stand, a moment that will give her nightmares for years. To be clear – I am speaking metaphorically, that didn’t actually happen. If there is one thing reading this judgment has taught me, it is not to make assumptions about whether you are going to be sued for libel, as some people have a really surprising take on the wisdom of doing that.


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The Weekly Round-up: Northern Ireland Protocol, public Parole Board hearings, and SLAPPs

25 July 2022 by

Photograph: Charles Bronson

In the news

Last week, the EU launched new legal action against the UK over the Northern Ireland protocol. The four new claims, which concern a failure to apply the customs and tax rules as agreed in 2019, are prompted by the Northern Ireland Protocol Bill passing through parliament that plans to discard the arrangements. Under the bill, companies in Great Britain who wish to export to Northern Ireland could choose between meeting either the UK or the EU regulatory standards. The EU’s Brexit commissioner described such terms as “illegal”, and justified the action as a response to the UK’s “unwillingness to engage in meaningful discussion since February”. The four new challenges come on top of three other cases already underway, all of which will come before the European Court of Justice.

Charles Bronson, “Britain’s most notorious prisoner”, is the first person to formally ask for a public Parole Board hearing following rule changes that came into force on Thursday. In deciding whether to grant a public hearing, the board’s chairman will take into account the victims’ wishes, the risk of trauma, the vulnerability of the prisoner, and whether any witness evidence would be affected. The reform followed a case in 2020 in which Bronson successfully argued that Ministry of Justice regulations preventing public hearings breached his right to a fair trial. While the normal position remains that hearings will be private, the new rules allow for prisoners to request publicity, and Bronson’s hearing is expected to be held publicly late this year or early 2023.


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The Weekly Round-up: Supreme Court to rule on indyref2, pandemic WhatsApps, and protection for pupils

22 July 2022 by

In the news

The UK Government has urged Supreme Court justices not to hear the Scottish government’s request for a ruling as to whether it has the power to hold ‘indyref2’ (a proposed second Scottish independence referendum). The request was referred to the UKSC by Lord Advocate Bain, who was not prepared to sign off on the independence referendum bill without a ruling which acknowledges the necessary power to do so. The UK Government has been expressive in its “clear view” that the bill would be beyond the competence of the Scottish Parliament, and that the matter is too “premature” for justices to rule on it. The case is currently in the hands of Lord Reed. If the Scottish Government wins the case, Nicola Sturgeon has indicated that the bill would be introduced promptly so as to allow the vote to take place before October 2023.

The Information Commissioner’s Office has reprimanded the Department of Health for the use of WhatsApp and private emails during the pandemic. The use of these cryptic platforms has meant that information regarding the handling of the pandemic has been lost. The issue was brought before the courts in April, where the claim was dismissed and the practice held to be lawful. This was because the use of such channels of communication did not in themselves breach the Freedom of Information or data protection rules, because sufficient controls were in place to allow the information to be retrieved upon request. The ICO investigation has discovered, however, that “such controls were lacking”. As a result, the Department of Health has been formally required to improve its communications operations so that “public authorities remain accountable to the people they serve”.


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Human Fertilisation and Embryology Act can be “read down” to accord with Convention family rights

19 July 2022 by

Jennings v Human Fertilisation and Embryology Authority [2022] EWHC (Fam) (22 June 2022)

This poignant case tells a sad story, but an instructive one in terms of human rights and the ability of courts to interpret statutes in accordance with these rights under Section 3 of the Human Rights Act 1998.

The judge’s role in these difficult private cases is subject to the “stern test” laid down by Sir James Munby in Samantha Jeffries v BMI Healthcare Limited and others  [2016] EWHC 2493 (Fam) . Respect for a statute’s obvious does not entail

that the judge must approach a case such as this bereft of humanity, empathy, compassion and sympathy. What it does mean is that the judge cannot allow his judgment to be swayed, or his decision to be distorted, by those very human emotions.

Background facts and law

The statute in question in that case and this was the Human Fertilisation and Embryology Act 1990, as amended by secondary legislation and the Human Fertilisation and Embryology Act 2008. More on that later. Here, the applicant sought a declaration that it was lawful for him to use an embryo created using his sperm and the eggs of his late wife in treatment with a surrogate. The embryo was created in 2018 when the applicant and his wife (C) were undergoing fertility treatment to fulfil their wish to have children of their own. The embryo is currently stored at the Centre for Reproductive and Genetic Health.

The applicant and his wife had undergone several unsuccessful cycles of IVF, the latter being private. They had remortgaged their house to pay for the treatment. A positive pregnancy with twin girls was confirmed in November 2018. C developed complications in her pregnancy at 18 weeks, which resulted in a uterine rupture, and she died on 25 February 2019. There was one remaining embryo which the applicant wished to use with a surrogate, to fulfil their joint wish for this to take place in such circumstances. He accepted there was no written consent by C for that to take place but said that they had not been given sufficient information or opportunity to give that written consent. It was that remaining embryo that was the subject of this application.


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The Weekly Round-up: PM resigns, Criminal Bar strikes, and no diplomatic immunity for modern slavery

11 July 2022 by

Source of photograph: https://www.bbc.co.uk/news/uk-61866343

In the news

The biggest story filling the headlines this week was that Boris Johnson has resigned as leader of the Conservative Party following over 50 resignations from government ministers. Though predominantly a political development, there are potential legal implications to the decision. This is because, until the leadership campaign announces his successor, current policies are stagnated under the ‘lame-duck government’. There is, therefore, doubt over the future of three particularly controversial policies: the Northern Ireland Protocol Bill; the Bill of Rights Bill; and the Rwanda scheme.


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Law Pod UK latest: The 2022 Bill of Rights

9 July 2022 by

With the current turmoil in Westminster, attention to the government’s proposed Bill of Rights Bill has temporarily fallen away. But whatever the leadership contest throws up, the debate still rages: do we repeal and replace the Human Rights Act 1998? Leave it in place, or update it? Dominic Raab’s Bill will probably have to wait a while for its second reading in the Commons; in the mean time, Rosalind English combs through its provisions with Andrew Warnock QC, whose practice at 1 Chancery Chambers involves many cases involving claims based on the European Convention of Human Rights and the 1998 Act. Listen to Episode 167 for an in-depth survey of the new Bill’s proposals.

Here are the citations for the cases referred to in the interview:

R (On the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56

Robinson v Chief Constable of West Yorkshire Police [2018]  UKSC 4

Ghadian v Godin-Mendoza [2004] UKHL 30

R (on the application of Al-Skeini) v Secretary of State for Defence [2007] UKHL 26

Secretary of State for the Home Department v F [2009] UKHL 28

Al-Skeini v United Kingdom  (2011) 53 E.H.R.R. 18

Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406

Osman v United Kingdom (2000) 29 E.H.R.R. 245

DPP v Ziegler [2021] UKSC 23

On Tuesday 19th July 1 Crown office Row will be holding a webinar on A New Bill of Rights? The Bill of Rights Bill Explained. The speakers will be familiar to Law Pod UK listeners:  Alasdair HendersonJim Duffy and  Darragh Coffey  Rajkiran Barhey will chair the discussion. We will be following the webinar with a podcast episode on the subject.

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.

What the Princess of Pop teaches us about Capacity – Belinda Cheney

7 July 2022 by

I was gripped by the Britney Spears saga. This phenomenally successful pop star was deemed to lack capacity in relation to most aspects of her life and finances for more than 13 years allowing her father full control over her considerable fortune and her person and critically, she was unable to object until the “Free Britney” movement highlighted the rampant injustice of the situation. Only then was she was permitted to appoint her own lawyer and “freed”. In this we consider briefly the  similarities and differences between the US conservatorship and the UK deputyship. 

Britney’s situation has thrown a glaring light on conservatorships and the potential for abuse. A number of famous people have had conservatorships – often temporary and some of their own volition. Randy Meisner (The Eagles) requested a conservatorship after the sudden death of his wife. Mickey Rooney (actor) had one imposed on account of being the subject of horrible physical and financial abuse from his 8th wife and her son.  Joni Mitchell (singer songwriter) had a temporary conservatorship after a severe brain aneurysm until she recovered. As stated in the NY Times on 22 June 2021,

Experts say conservatorships should prioritize the wishes of the conservatee and help them regain their independence. The arrangements are supposed to be a last resort for people who cannot take care of their basic needs, such as those with significant disabilities or older people with dementia, yet Ms. Spears has been able to perform and profit for more than a decade.

Basics of US Conservatorships

Conservatorships, known in many states as guardianship, are put in place for people who are significantly disabled by mental illness, elderly individuals who lack mental capacity due to medical conditions such as dementia, or individuals with developmental disabilities who lack the capacity to manage their own affairs. They are often temporary. In typical conservatorship proceedings, an allegedly mentally incapacitated person is evaluated by a qualified physician or psychiatrist who prepares a report documenting the person’s mental capacity that is provided to the court and may be used as evidence. The court must be satisfied that the individual must be unable to make decisions regarding food, clothing, shelter or medical decisions and/or they must be unable to manage financial affairs or resist undue influence. For conservatorships of the person (managing all aspects of daily life and medical care as opposed to finance) the bar is apparently a high one with these being reserved for those most seriously ill. There is also a power to grant limited conservatorships by which the person subject to it can still make some decisions for themselves e.g., where to live. Britney Spears was subject to both types and for a period of 13 years.


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Breaxit: Cereals, food standards and child obesity

6 July 2022 by

Kellogg Marketing and Sales Company (UK) Ltd & Anor, R(On the application Of) v Secretary of State for Health and Social Care EWHC 1710, 4 July 2022

UKHRB followers of a certain age may remember this advertisement for breakfast cereal, which went “viral” in the days before the internet:

Those were innocent times, when we believed that the combination of wheat, fat and sugar in a breakfast cereal was a good start to a child’s day. Now we know that foods high in sugar are major contributors to the child obesity epidemic in this country. Hence the government’s regulations on nutritional foodstuffs, introduced last year.  

Background law and facts

The Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368 – “the 2021 Regulations”) are part of the Government’s strategy to tackle childhood obesity. They introduce restrictions on the promotion, in supermarkets or other large outlets and online, of food which is classified as high in fat, sugar or salt.

Under these Regulations breakfast cereals are included in the categories of food which may be “specified food” and therefore subject to the relevant restrictions. Whether a given product within one of these categories is in fact classified as “less healthy” depends on the score which it is given under the Food Standards Agency’s Nutrient Profiling Model (“NPM”). The NPM requires that the nutrient content of a given product is analysed per 100g of the food or drink itself, rather than taking account of what the food or drink may be consumed with.

Kellogg’s – one of the main players in the breakfast market – relies on agreements with retailers to place its products in parts of stores (e.g. near the checkout, in a queuing area, at the end of an aisle) which maximise sales and to promote its products on the retailers’ websites.

Arguments before the Court

Kellogg’s pleaded claims were based on a number of grounds, the main one being that the Defendant failed to have regard to a relevant consideration, namely the fact that breakfast cereals are typically consumed with milk. This, they maintained was part of the nutrient profile of breakfast cereals.

Kellogg’s fundamental complaint about the 2021 Regulations was that, under the NPM, the fact that a portion of, for example, Kellogg’s “Frosties” would typically be consumed with milk, was not taken into account in assessing whether this product was food which is classified as high in fat, sugar or salt (“HFSS”). If the consumption of milk with breakfast cereal were taken into account, fewer Kellogg products would be classified as HFSS because the nutrient values of the added milk would contribute to the scoring. Kellogg argued that an approach which measured the relative levels of fat, sugar or salt in the product itself, rather than the health impact of the product as typically consumed, was disproportionate and irrational.


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The Weekly Round up: planned new Bill of Rights; fall in the success rate of JR claimants; Afghan judge applies for relocation to UK

4 July 2022 by

Criticism of the planned British bill of rights has been gathering momentum. Free speech campaigners have argued that it will undermine freedom of expression rather than support it.  Labour’s shadow justice minister called it ‘a very dark day for victims of crime, for women, for people in care, for everyone in this country who rely on the state to protect them from harm’ . A cross-party amendment that would include the right to abortion has been proposed. While Dominic Raab stated that abortion is already ‘settled in UK law’, Labour MPs have argued that there should be a free vote for MPs on enshrining abortion in the bill as a fundamental right.

Nicola Sturgeon has announced that the Scottish government intends to hold an independence referendum on 19th October 2023. Her government has requested that the Supreme Court give a ruling on whether they can legally call such a referendum without authorisation from Westminster. Sturgeon commented that if the court’s response is negative, the next general election could provide a ‘de facto referendum’ on independence.   

In other news

According to a recent analysis, the proportion of judicial reviews in England and Wales in which claimants have won has fallen by 50% since 2020. Last year, 31 judicial reviews (excluding immigration) found for the claimant in the High Court, the lowest number since 2001, when records began. Jolyon Maugham QC, director of the Good Law Project, responded with a warning that the rule of law ‘could easily become a relic for the history books’

The Ministry of Justice and the Attorney General’s Office have called on the Law Commission of England and Wales to review the law regarding contempt of court. This comes amidst concerns that the current system is ‘disordered and unclear’. The review will aim at simplification, clarification, consistency and greater effectiveness within the law regarding civil and criminal contempt of court. It will address, among other things, Article 10 ECHR in relation to publishing information about court proceedings, potential procedural issues, responsibility for adjudication, investigation and prosecution, and the appropriateness of current penalties. 

The UK Information Commissioner has announced that public authorities will only be fined for data breaches in ‘the most egregious cases’. The effectiveness of fines as a deterrent was doubted by the Commissioner. Public reprimands will be used more frequently, alongside enforcement notices, as part of ‘a more proactive and targeted approach’. 


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Non-Binary Passports: R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56

4 July 2022 by

Background

The Appellant in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56 was assigned female at birth, however during and after puberty they felt revulsion at their body and underwent surgery in 1989 and 1990 to alleviate those feelings. The Appellant who identifies as non-gendered, is a campaigner for the legal and social recognition of this category. The provision of “X passports” are a focal point of the Appellant’s campaign.


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High Court gives guidance on scope of article 2 inquests

28 June 2022 by

In R (Gorani) v HM Assistant Coroner for Inner West London [2022] EWHC1593 (QB), a Divisional Court comprising Macur LJ and Garnham J rejected on all grounds a wide-ranging challenge to the conduct of in inquest into a suicide. Of particular interest were the Court’s observations on the effect of a finding that the investigative duty under article 2, ECHR was engaged, and their clarification that a coroner does not need to hear submissions before refusing to make a ‘preventing future deaths’ report. That said, it is a broad and interesting judgment and deserves reading in full by those with an interest in coronial law.


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The Weekly Round-up: the Bill of Rights, Roe v Wade and the Investigatory Powers Act 2016

27 June 2022 by

In the news: 

On Wednesday, a new Bill of Rights was introduced to Parliament. While the Government claims that the Bill ‘will strengthen traditional UK rights’ which are ‘under attack’ from ‘stifling political correctness’, critics say the Bill dilutes domestic human rights protection and seeks to diminish the powers of domestic courts. Key aspects of the Bill are as follows: 

  • it gets rid of the interpretive obligation under s3 of the Human Rights Act 1998, with no analogous replacement; 
  • it prevents UK courts from adopting new interpretations of ECHR rights that would require a public authority to comply with a positive obligation and limits their ability to enforce existing positive obligations;
  • it introduces a permission stage requiring people to show they have suffered a significant disadvantage before their claim can go ahead;
  • it prevents domestic courts from finding legislative provisions concerning deportation to be incompatible with the Article 8 right to respect for private and family life unless the provision would require the relevant person to be treated in a way that would occasion ‘harm’ so ‘extreme’ that it would ‘override the otherwise paramount public interest’ in removal from the UK; and 
  • it requires courts, when deciding ‘incompatibility questions’, to treat Parliament as having ‘decided’ that the Act strikes an appropriate balance between the relevant competing factors.

The Bill’s detractors have suggested that, despite its stated aim to ‘bring rights home’, the Bill will in fact result in the UK being in breach of its obligations under the ECHR more often, making it more vulnerable to adverse rulings by the ECtHR. 

On Friday, the US Supreme Court overturned Roe v Wade, holding that there is no longer a federal constitutional right to an abortion. Going forward, abortion rights will be determined by states, unless Congress acts. President Biden commented: “The Court has done what it has never done before: expressly take away a constitutional right that is so fundamental to so many Americans that had already been recognized.”


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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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