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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New commissioning editors

27 June 2022 by

After almost five really enjoyable years as commissioning editor of the UK Human Rights Blog, I will be stepping back from that role and joining the Blog’s editorial board. I am delighted to announce that replacing me as joint commissioning editors will be Darragh Coffey and Jasper Gold.

The last few years have been very good ones for the Blog and it has been a great privilege to be the commissioning editor. I am hugely grateful to all the contributors, the round-up writers and, of course, the editorial board, for all of their hard work, help and support. I know that Darragh and Jasper will be excellent set of hands for this role. If you are interested in writing for the Blog, please contact them at darragh.coffey@1cor.com or jasper.gold@1cor.com.

See you on these pages soon!

Jonathan Metzer

27th June 2022

The Weekly Round-up: Rwanda flight, Julian Assange, and asylum tagging

20 June 2022 by

Source of photograph: https://www.bbc.co.uk/news/uk-61806383

In the news

The first flight attempting to deport asylum seekers to Rwanda has been cancelled at the last minute following a ECtHR ruling that granted an ‘urgent interim measure’ to stop the deportation. This is in contradiction to the UK High Court and Court of Appeal, which found that, while there should be a full review of the policy, the Home Secretary would not be acting unlawfully by deporting asylum seekers in the meantime. The UK Supreme Court refused permission to appeal. The ECtHR stated that the decision was influenced by the UN’s refugee agency, who raised concerns that those being deported may not receive a fair hearing and could be left in unsafe conditions.

The Home Secretary has approved the extradition of Julian Assange to the US. Assange has been charged under the US Espionage Act for publishing leaked documents about the Afghanistan and Iraq wars on his whistle-blowing platform ‘WikiLeaks’ and faces up to 175 years in jail if found guilty. Assange has been in prison since he was removed from the Ecuadorian embassy in London in 2019 after his asylum status was removed. His extradition had previously been blocked for concerns regarding his mental health, but the current decision marks the most important stage in his legal battle. Assange has 14 days to appeal the decision, but his brother expressed that if this is not successful the case will be brought before the ECtHR.


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Article 2 inquest determination concerning Community Mental Health Services quashed

15 June 2022 by

In R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin), Mrs Justice Hill quashed a ruling that the Article 2 general (or systemic) duty has not been potentially engaged by the death of Kianna Patton.

Kianna had been found hanging aged 16 at a time when she was under the care of Specialist Child and Adolescent Mental Health Services with a history of self harm. She was living with a friend, whose mother had let her use cannabis. This caused her mother (the Claimant) significant anxiety, given Kianna’s mental health issues. Her mother sought assistance in relation to Kianna from social workers and Police officers before her death. She believes there were serious failings in the way they responded and in the care S-CAMHS provided to Kianna. Following the Coroner’s ruling that Article 2 was not engaged, a Health Board’s report that was disclosed identified several issues with care delivery and the way that Kianna’s risk had been assessed, in particular, noting that safeguarding screening had not been completed once it was identified that she was no longer living at home.


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The Weekly Round-up: social care spending, Stafford statements and Ukraine’s legal battle

10 June 2022 by

In the news:

  • The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.
  • In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.
  • An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.

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Law Pod UK Latest Episode: Wendy Joseph QC

8 June 2022 by

“Every day in the UK lives are suddenly, brutally, wickedly taken away. Victims are shot or stabbed. Less often they are strangled or suffocated or beaten to death. Rarely they are poisoned, pushed off high buildings, drowned or set alight. Then there are the many who are killed by dangerous drivers, or corporate gross negligence. There are a lot of ways you can kill someone. I know because I’ve seen some of them at close quarters”

These are the words of Her Honour Wendy Joseph QC in the preface to her book Unlawful Killings: Life, Love and Murder: Trials at the Old Bailey”. Until recently Wendy was a judge at the Old Bailey, trying mainly allegations of murder and other homicides. She practised as a barrister for thirty two years, then sat as a full-time judge until she retired earlier this year. Because she no longer sits as a judge she was able to publish this fascinating book which has been described in reviews as describes the book as a “novel”. And indeed it is, a series of interlinked dramatic human stories leading to a close. She writes with great clarity about the technical processes of the law, and the implications of these for the people before her in Court.

In Episode 166 Rosalind English talks to Wendy Joseph about the human stories that are played out in the Old Bailey.

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.

New LawPod UK Episode: A Duty To Offer Alternatives? With John Whitting QC 

6 June 2022 by

In Episode 165 John Whitting QC speaks to Emma-Louise Fenelon about informed consent.  

The episode discusses the following cases:  

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 Northern Ireland Legacy Bill: Reconciliation or restriction?

31 May 2022 by

CAIN: Events: Peace: The Agreement - Agreement reached in the multi-party  negotiations (10 April 1998)
The Belfast (Good Friday) Agreement (cover)

In 1998, people across the island of Ireland overwhelmingly endorsed the Good Friday Agreement, in a historic decision which signalled hope for a post-sectarian, post-conflict future. The UK Parliament responded to this popular mandate by returning devolution to Northern Ireland. On 24 May 2022, the reverse happened: in the face of vehement opposition from Northern Ireland, the UK Parliament voted to clear the second stage of a Bill that would drastically impact efforts to deal with the Northern Ireland conflict.

The Bill: an overview

There are 4 main parts to the Northern Ireland Troubles (Legacy and Reconciliation) Bill. Part 1 defines ‘the Troubles’, traditionally a phrase used to euphemistically describe the violent political and sectarian conflict which lasted for a little over 3 decades in Northern Ireland. Part 2 establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR), charged with (among other things) reviewing deaths and certain other ‘harmful conduct’ and granting immunity from prosecution to individuals in exchange for information about those individuals’ potentially criminal conduct during the Northern Ireland conflict. Part 3 largely ends criminal investigations, prosecutions, civil actions, inquests and inquiries (except in specific circumstances). Part 4 provides for the compilation of histories of the Northern Ireland conflict.

Though the Bill’s provisions are complex, this post is not concerned primarily with those provisions. Instead, in addition to the Secretary of State’s statement (under section 19(1)(a) of the Human Rights Act 1998) of compliance with Convention rights, the Bill is accompanied by (somewhat unusually) a 36-page ‘European Convention on Human Rights Memorandum‘, written by the Northern Ireland Office. This Memorandum provides the views of the UK Government on why the Bill is Convention-compliant and this is what will be explored here.


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Commissioning Editors: Darragh Coffey
Jasper Gold
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Angus McCullough KC
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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 appeal 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 candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement 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 legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring 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 public law 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 united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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