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One of the first decisions taken by the new Prime Minister, Liz Truss, has been to halt Dominic Raab’s Bill of Rights plan. The bill would have given legal supremacy to the UK Supreme Court, explicitly entitling it to disregard rulings of the European Court of Human Rights (ECtHR). The bill is now ‘unlikely to progress in its current form’, a Whitehall source of the BBC has expressed, leaving doubt over whether Raab’s attempts to repeal the Human Rights Act 1998 will materialise. Vice President of the Law Society, Lubna Shuja, said that ‘the only smart way to proceed would be to go back to the advice of the independent review it [the Government] commissioned.’
The legal challenge against the Rwanda asylum plan is being heard before the High Court. While the trial is ongoing, and no judgment will be handed down for some time, the Government’s legal arguments defending the plan are now known. Part of the defence advanced by Lord Pannick KC, counsel for the Government, relies on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which confers on ministers the power to send asylum seekers to safe countries. If they are of the opinion the asylum seekers will be safe and not put in danger, the Home Secretary can transfer them to other states. The main hurdle for the Government in this defence will be the UN Refugee Agency’s declaration that Rwanda is an unsafe place for migrants. The Court has asked for a detailed response to this critical point.
Liz Truss has been confirmed as the new prime minister. She is expected to freeze energy bills at approximately £2,500 a year and to provide a £400 universal handout. She has reportedly ruled out the idea of a windfall tax on oil companies, which was proposed by Labour. She is apparently considering reviewing workers’ rights, as part of her plan to scrap remaining EU regulations by the end of next year.
The chair of the Criminal Bar Association has called on Dominic Raab to hold talks to resolve their industrial action, which began in April. On Monday, criminal barristers began an indefinite all-out strike, calling for legal aid fees to increase by 25% immediately.
In other news
Ministers plan to introduce legislation to encourage nurses and dentists trained elsewhere to begin working for the NHS. The health secretary, Steve Barclay, is hoping to boost overseas recruitment in health and social care. This move comes after the number of unfilled NHS posts reached a record high of 132,139 earlier this year. Link 5 – ministers to make it easier
Two councils are planning to seek permission to appeal to the Supreme Court following two successful appeals which involved the striking out of negligence claims that had been brought against them. The appeals considered when children being cared for by local authorities under the Children Act 1989 are owed a duty of care by those local authorities and the social workers for whom they are vicariously liable.
The conservation charity WildFish has asked the Government to withdraw its Storm Overflow Discharge Reduction Plan, on the grounds that it is ‘unlawful on many counts’ by encouraging breaches of environmental laws to continue. The Plan allows the continuation of environmental damage caused by up to 100% of storm overflows discharging into high priority sites. It has been labelled a ‘smoke and mirror’ approach which does not deal robustly with water companies’ sewage pollution of UK rivers.
Members of the Criminal Bar Association have voted in favour of an indefinite strike, escalating the industrial action that the courts have witnessed since June. The decision follows failed negotiations with the Ministry of Justice, with Dominic Raab still having not met with the CBA and the government standing firm in its position. The MoJ have expressed their disapproval of the decision, labelling it ‘irresponsible’. The CBA, alternatively, have accused the government of overseeing a ‘recklessly underfunded’ criminal justice system. In response to the decision, Raab has proposed granting more solicitors rights of audience, allowing more to advocate in the Crown court. The strike is due to commence on 5 September, coinciding with the announcement of the new Conservative party leader.
Liz Truss has expressed that she will consider triggering Article 16 of the Northern Ireland Protocol if she were to be successful in her leadership campaign. Article 16 provides ‘safeguarding measures’ that entitle the UK or the EU to suspend any part of the agreement. It does not, however, dismantle the Protocol in its entirety. Rather, triggering the article would provide an alternative to other suggestions which propose primary legislation to deem it necessary that the Government not comply with its existing obligations under the agreement. Triggering the article would exhaust the legal options the UK has before following through on this threat to discard the agreement altogether. The news comes after the EU launched a series of legal challenges against the UK’s commitment to the Protocol.
This decision, handed down by Swift J in the High Court, concerns the requirements for fairness in local authority age assessments for asylum seekers and the correct approach to be adopted.
Facts
The claimant, a Sudanese national, arrived in the UK on 21 May 2021 and made an application for asylum, claiming to be 17 years old. The local authority did not believe the claimant to be a child and assessed him to be 23 years old. The claimant was provided with initial accommodation in the area of the local authority. Social workers employed by the local council also assessed the claimant as being 23 years old. The claimant’s legal representatives on two occasions complained about the local authority’s decision, firstly levelling several criticisms of the way the age assessment process had been conducted and then enclosing additional evidence in respect of the claimant’s age and requesting a reconsideration, which the local authority rejected.
A former Afghan judge, who is fleeing from the Taliban with her son, has appealed against the Home Office rejected her application to enter the UK. Lawyers representing the woman state that she and her son have been left in a “gravely vulnerable position” following the withdrawal of western troops from the country. They had been chasing the Home Office for a decision on their application, but stated that the decision-makers were “dragging their feet”. They were told the delays were due to resources being redirected to Ukraine. After nine months the applications were refused, and an appeal is expected to take more months still. The family are currently in hiding in Pakistan after their home in Kabul was raided. Their residency is dependent on the goodwill of a landlord putting himself at risk of criminal punishment. Their refused entry is believed to be a result of administrative error.
The UK government has submitted its argument in the case which may settle whether Members of Scottish Parliament could legislate for a vote on Scottish independence without Westminster’s backing. The submission from the Advocate General precedes a full hearing on 11 and 12 October when oral arguments will be heard. The Supreme Court will rule on whether Holyrood alone has the power to hold an independence vote, which First Minister Nicola Sturgeon wants to hold on 19 October 2023. Last month, the Scottish government published its own case, arguing the referendum is ‘advisory’ and would have no legal effect on the union.
The House of Commons Women and Equalities Committee published a report on 4 August recommending the government should improve legal protections for unmarried couples by introducing an opt-out cohabitation scheme proposed by the Law Commission in 2007. The scheme aims to protect eligible cohabitants who are economically vulnerable, preserve individual autonomy, maintain a distinction with marriage and civil partnership, and provide certainty about who qualifies as a cohabitant. The committee said the government should commit to publishing draft legislation for scrutiny in the 2023-24 parliamentary session.
On 10 August, Suella Braverman delivered a speech for the Policy Exchange’s Judicial Power Project stressing the need for the government to better clarify the scope of fundamental rights. She called to curb the influence of the European Court of Human Rights, citing the ‘intensive standard of proportionality under the Human Rights Act’. The speech dealt with issues including the Equality Act, Single Sex Spaces- specifically in schools- convention rights and illegal migration.
Conservative frontrunner Liz Truss is promising to cut taxes this winter to support families amidst rising energy bills, through an emergency budget that would be enacted this September. Sunak, her rival, has pledged to provide a £15bn overall package of assistance with energy bills. Criticisms have been raised of Truss’ plans, however, with suggestions that they could cost £30bn, £40bn or even £50bn per year. Both candidates’ plans have been criticised for not being accompanied by plans for lower spending that would make them sustainable. Labour’s Rachel Reeves has argued that amidst ‘fantasy economics and unfunded announcements from the Tories’, Labour alone can offer Britain the fresh start that it needs.
A survey by the British Dental Association and the BBC has shown that 91% of NHS practices in England are not accepting new adult patients. Louise Ansari, national director of Healthwatch England, has called the results of the survey ‘dire’. Stories have emerged of people pulling out their own teeth and making their own teeth out of resin to stick back on with superglue. The health secretary has noted the ‘urgency’ of preparing the NHS for winter, amidst the pressures of coronavirus, the rising cost of living and seasonal flu. Whether the Department of Health and Social Care’s recent comment regarding the ‘government priority’ of NHS dental care will translate into satisfactory results remains to be seen.
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.
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.
The judgment in Vardy v Rooney [2022] EWHC 2017 can be foundHERE.
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.
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.
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”.
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.
The landmark decision handed down on 6 July 2022 by a majority of 3 to 2 in the Supreme Court held that a serving diplomat does not enjoy immunity in an employment tribunal claim grounded in allegations of modern slavery.
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