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On 21/10/2020, the Court of Appeal ruled that the Home Office’s removal window policy (‘the Policy’) was unlawful. The Policy incorporated an unacceptable risk of interference with the right of access to court by exposing a category of irregular migrants — including those who have claims in respect of their right to life and/or freedom from torture and inhuman or degrading treatment — to the risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal.
In Episode 128 Emma-Louise Fenelon talks to Marina Wheeler QC about the Independent Medicines and Medical Devices Safety Review, better known as the Cumberlege Review, which investigated the response of England’s healthcare system to patients’ reports of harm from drugs and medical devices.
Since the report was published in July (available here), the National Institute for Health and Care Excellence has indicated it will be taking a number of steps in response to the review (more information here). In recent weeks a number of questions were tabled asking what the government plans to do next in response.
The episode includes a discussion about consent, and reference to Montgomery v Lanarkshire Health Board[2015] UKSC 11
Find an article written by Marina Wheeler QC and Amelia Walker on the Cumberlege Review on page 5 of Issue 6 of the 1COR Quarterly Medical Law Review (QMLR).
Marcus Rashford has campaigned prominently on this issue. Image: Wikipedia
This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.
Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).
This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.
In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).
When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)
It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.
The secretary of state had granted a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone, one of the two drugs required for a termination of pregnancy during the first 10 weeks. The appellants challenged this decision by way of judicial review, arguing, inter alia, that it was unlawful as being without the powers conferred by the Abortion Act 1967 (as amended).
Legal background
The 1967 Act sets out the legal framework under which abortions can be performed in England and Wales. Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence to administer drugs or use instruments to procure an abortion. Section 59 of the same Act makes the supply of drugs, knowing that they are intended to be unlawfully used to procure the miscarriage of any woman, a criminal offence.
The Act excludes from criminal liability the termination of a pregnancy by a medical practitioner under certain circumstances including maximum term of twenty four weeks and risk to the woman. The Act also stipulates that treatment must be carried out in an approved place.
The Scottish Bill improves greatly on some problems that have beset Irish redress schemes by proposing a non-adversarial approach, provision of legal and other assistance throughout a survivor’s engagement with the scheme, freedom of expression for survivors, and a prohibition on the review body reducing the payment proposed at first instance.
However, the Bill’s shortcomings include the waiver requirement, the five-year time limit for applications, the anticipated obligation on survivors to provide documentary evidence ‘in all but exceptional cases’, and the exclusion of corporal punishment from the scheme’s scope. My recent correspondence to the Scottish Parliament’s Education and Skills Committee discusses all of these issues.
Here, I focus on the waiver. This requires that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000.
Scotland has the opportunity to use this redress scheme to support survivors who wish to pursue litigation against the State and/or other entities, by contributing to these individuals’ psychological and financial security in the short term. Instead of the current waiver proposal, the Bill could direct the courts to reduce any future damages award by the amount already paid by the relevant Defendant under the scheme. This approach would recognise the absolute and inalienable human right of survivors of torture or other cruel, inhuman or degrading treatment to accountability for such abuse, and to compensation commensurate with the gravity of the harm suffered. Such recognition would strengthen current and future protections against torture and ill-treatment while redressing past failings.
On 12 October 2020, the Prime Minister made a statement in Parliament and addressed the nation to announce a new three tier lockdown system would be introduced across the country. The Secretary of State for Health introduced three statutory instruments before Parliament which came into force two days later.
In oversimplified terms, the restrictions in place in each tier are as follows:
There has, in recent years, been a proliferation of case law on appeals against deportation by foreign national criminals on grounds of private and family life. The statutory scheme is complex enough, but the various tests (“unduly harsh”, “very compelling circumstances”) have also been subject to extensive judicial gloss, leaving practitioners and judges to wade through a confusing sea of alphabet-country soup case names.
It will come as welcome news, then, that the Court of Appeal has greatly simplified things by encouraging tribunals to focus on just a handful of key authorities. In doing so, it has also somewhat softened the approach to determining whether separating a foreign national criminal from his settled child or partner is “unduly harsh.”
The United Kingdom Internal Market Bill is due for second reading in the House of Lords on 19 October 2020. It is not an understatement to say that the Bill contains provisions which represent one of the most egregious assaults on the Rule of Law in recent times, nor is it an understatement to say that there is a remarkable hostility to it from across the political spectrum, and across the Brexit divide.. It has also united the UK’s legal profession against it. In Reports for the Bingham Centre for the Rule of Law here and here we pointed out how this violation of international law breaches the Rule of Law. I have also previously argued that the Bill contains an unacceptable breach of domestic law. The former Attorney General Dominic Grieve argued that the Bill contained an unacceptable ouster clause. I wish now to hone that argument by characterising what is now clause 47 of the Bill as containing not just a simple ouster clause, but the mother of all ouster clauses.
Brief explanation / history of ouster clauses
An ouster clause is a provision in primary legislation which ousts the jurisdiction of the courts. It deems that provision (or decisions made under or in accordance with that provision) as not susceptible to judicial challenge. An ouster clause makes the subject matter of the clause non-justiciable, putting it outside or beyond the reach of the courts.
Parliament and the courts have played a game of cat and mouse over ouster clauses for at least the last 70 years.
The Court of Appeal has delivered a judgment in PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213 regarding unlawful detention under the Detained Fast Track system, which indicates that a fact sensitive approach must be adopted to each case. This judgment is likely to be particularly relevant in giving guidance to practitioners whose client has previously lost an appeal under the Detained Fast Track Rules who are considering or working on claims for damages for unlawful detention.
Legal Background
In July 2015 the Court of Appeal declared that the Detained Fast Track system, which provided strict time limits for preparing appeals alongside mandatory detention, was unlawful. This was primarily because “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases” ([45], per Lord Dyson). It did not, however, say what would happen to appeals that had been decided under this system, where wrong results may have been reached owing to this unfair procedure.
In R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838(‘TN (Vietnam)’), the Court of Appeal answered this question. Lord Justice Singh emphasised that whether a First-tier Tribunal decision must be quashed owing to unfairness will be a matter of fact based on how far the Detained Fast Track Rules touched on the decision. The Court of Appeal in PN (Uganda) summarised the principles established in TN (Vietnam) as follows:
35. … (1) a high degree of fairness was required in the proceedings; (2) the 2005 DFT Rules created an unacceptable risk of unfairness in a significant number of cases; (3) there was no presumption that the procedure was fair or unfair; (4) finality in litigation was important; and (5) a long delay in locating what was said to be critical evidence might suggest that the unfairness in the 2005 DFT Rules did not make the proceedings in the FTT unfair. The Court noted at paragraph 90 that whether the proceedings were in fact unfair and liable to be set aside would “depend on a careful assessment of the individual facts”.
The decision in PN (Uganda) provides a helpful application of these principles.
The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.
Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.
The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.
This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.
The CJEU ruled on Tuesday that Directive 2002/58/EC (‘the Directive’) precludes national legislation from ordering telecommunication companies to transfer data in a “general and indiscriminate” manner to security agencies, even for purposes of national security. This is following a challenge by Privacy International to UK security agencies over their practices of collecting bulk communications data (BCD).
The ruling could throw up roadblocks to a post-Brexit “adequacy” agreement over the UKs data protection regime. Adequacy is granted to data protection regimes to confirm that they conform to the data protection standards of GDPR, and thus that companies may move data about EU data subjects outside of the EU to those regimes. Recently, the adequacy rating of the US “Privacy Shield” was invalidated by the Schrems II judgment. This ruling could prove to be an analogous issue for the UK’s adequacy rating at the end of the transition period.
In Delve and Anor v SSfWP [2020] EWCA Civ 1199, the Court of Appeal dismissed the challenge brought against the series of Pensions Acts between 1995 and 2014 which equalised the state pension age for women with that of men by raising the state pension age for women from 60 to 65 and then raising the age at which both men and women can claim their state pension.
The Appellants were two women born in the 1950s, whose pension age has been raised to 66. They contended that although one of the aims of the Pensions Act 1995 was to end the discrimination based on gender, “this equalisation has run ahead of actual improvements in the economic position of women in their age group.” [2]
It was their contention that this gives rise to:
1. direct age discrimination contrary to Article 14 ECHR in conjunction with Article 1 of the First Protocol (A1P1); and
2. indirect sex discrimination contrary to EU law and indirect discrimination contrary to Article 14 on grounds of sex or of sex and age combined.
It was also argued that the Secretary of State failed in her duty to notify them far enough in advance of the fact that they would not, as they expected, start receiving their pension at age 60.
ELF are acting for acting for local residents in the Forest of Dean on a translocation of pine martens from Scotland. They discuss bats, other protected species and relative success of the introduction of beavers to the British Isles with Rosalind English.
On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year. He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.
The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.
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