From 26 December new Covid rules came into effect in Scotland, Northern Ireland and Wales. All three nations have limited the size of public events and face coverings are compulsory in most indoor public spaces. Covid passports or proof of a negative test result is required at many venues. Nightclubs will close in Wales and Scotland from 27 December and in Northern Ireland from 26 December. People in Scotland are also advised to limit social contact to two other households and in Wales social distancing of 2 metres is required in all public and work spaces.
The only change to the current Covid guidance for England is the reduction of Covid self-isolation time from 10 to seven days, provided people have two negative test results. Face masks remain compulsory in most indoor public venues and a Covid passport or negative test result is required for nightclubs and some other venues.
And so we come to the end of another year. The Covid-19 pandemic has continued to dominate the news, particularly with the very concerning surge of the Omicron variant this month. Many reading this will be separated from loved ones over Christmas. The year has also seen the return to power of the Taliban in Afghanistan after the US withdrawal at the end of August, the resumption of military rule in Myanmar and the ongoing persecution of the Uyghurs by the Chinese government, this year recognised by the House of Commons and the US government (as well as many other bodies and organisations) as constituting a genocide. So, one could say that this year has rivalled last year for infamy.
But what, I hear you ask, about the law? As always, this year has been packed with fascinating and important legal developments — many of which you may have caught, but some of which may have passed under the radar. And so, please refresh your glass (or mug) and join me on another adventure as we review the 10 cases that defined 2021.
On Tuesday, the Ministry of Justice published its full consultation (the ‘Consultation’) on Human Rights Act (the ‘Act’) reform. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights. The 123-page Consultation follows the Independent Human Rights Act Review (‘IHRAR’), which reported to the government in late October, and was published on the government website on the same day as the Consultation.
The Consultation runs through the government’s now familiar issues with the Act, putting significant weight on cherry picked human rights cases which it is eager to summarise in its own words. For instance, R (Ellis) v Chief Constable of the Essex Police 7  EWHC 1321 (Admin),  2 FLR 566 is cited in the Consultation as an example of the application of the Act going ‘too far’. The Consultation presents the issue in the case, of Essex police publicising photographs of convicted offenders in train stations, as one that should clearly be beyond the remit of the Act. It makes no mention of the children and relatives of the offenders whose interests were balanced with the interests of the public in naming and shaming offenders in the hopes of deterring further crime (in the end, the scheme was permitted to continue).
The Grand Chamber of the European Court of Human Rights (“ECtHR”) has held that the risks to the applicant’s psychiatric health posed by his expulsion to Turkey did not reach the threshold for the application of Article 3.
The decision demonstrates the extremely high evidential threshold which applicants bringing such complaints will have to meet in order to establish that there are “substantial grounds” for believing that there is a real risk of a violation of Article 3, i.e., to pass the first stage of the Article 3 analysis articulated in the ECtHR’s case law.
In this week’s episode of Law Pod UK Rosalind English reports from the UK Bar Council’s 19th Annual Law Reform Lecture, exploring the role of law reform in the context of climate change. You will hear excerpts from the speeches given by Inger Andersen, Under-Secretary-General of the UN and Executive Director of the UN Environment Programme, and Lord Carnwath of Notting Hill, a former UK Supreme Court judge.
Milieudefensie et al. v. Royal Dutch Shell plc (26 May 20212. This ongoing claim is based on the Urgenda decision, which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens).
The Special Advocates have responded to the Government’s submission to the statutory Review of closed proceedings being conducted by Sir Duncan Ouseley — but HMG’s submission remains unpublished.
The delayed statutory review into closed proceedings under the Justice and Security Act 2013 (JSA) is reaching its conclusion. According to the Government’s website, it is estimated that the report “should be laid before Parliament early in 2022”.
A very brief recap:
Closed material procedures (CMPs) enable the Government to rely on secret evidence in legal proceedings, without showing that evidence to the other party. To reduce the unfairness inherent in that, a special advocate is appointed to review the secret material and represent the interests of the party excluded from access to it, including in hearings held in secret.
The JSA came into force in June 2013. Controversially, it included provisions making secret procedures (CMPs) available across the full range of civil proceedings.
One of the safeguards required by Parliament during the Bill’s bumpy passage was a review of the operation of CMPs under the Act after it had been in force for 5 years.
Another year (with further enquiries as to the position from various quarters in the meantime – summarised here) was to pass before the Government announced that a Reviewer had been appointed: Sir Duncan Ouseley, a retired High Court Judge and former President of the Special Immigration Appeals Commission (SIAC – the body responsible for hearing CMPs in statutory immigration appeals), so with wide experience of CMPs from his judicial career. The call for evidence took place earlier this year, closing just over 3 years beyond the date that the review should have taken place.
The Special Advocates (of whom I am one) made a detailed submission to the Reviewer based on our collective experience of CMPs under the JSA. This was published on this blog here: Secret Justice – The Insiders’ View. We highlighted some serious concerns that we had encountered with the practical operation of CMPs under the JSA. We also drew attention to commitments that the Government had made when the Bill was passing, to improve the effectiveness of the system, which had not been honoured.
We have seen no response from the Government to the detailed critique that we set out in our paper, and we do not know whether any attempt at a comprehensive reply by HMG has been submitted to the Reviewer.
What of the Government’s submission to the Review? In publishing our paper for the Review, in the interests of openness and promoting public debate, the SAs had expressed the hope that HMG’s response (and that of any other Government bodies or agencies) would do likewise:
In a corresponding spirit of transparency, it is hoped that any submissions to this review on behalf of Government bodies or agencies will be published in full, and so made available for wider review and comment. [para 5 of SAs’ submission of 8.6.21]
That has not been done. What did happen was that on 29 July 2021 the SAs were sent the Government’s Response by the Reviewer (not HMG) and told that this response was shared in confidence, and was not for onward transmission.
In Government of the United States v Julian Assange  EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the ruling of Westminster Magistrates’ Court, thereby permitting the extradition of the WikiLeaks founder to the US where he faces criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.
The High Court held that diplomatic assurances given by the US government regarding Assange’s prospective detention conditions were sufficient to quash the original basis upon which his extradition was initially discharged, namely that his mental condition was such that it would be “oppressive” to extradite him, per s.91 Extradition Act 2003.
For all the aspiring barristers interested in Clinical Negligence, Public Law, Professional Discipline, Inquests, Public Inquiries, Environment, Tax and more, 1 Crown Office Row are holding an online talk with their barristers. They will give tips for pupillage applications, life as both a pupil and junior tenant as well as talk more about practice areas and chambers culture.
Interested to learn more? Want to book you place? Details below:
A case in which the High Court reminds the regulator of requirements for imposing curbs on free speech.
Dr Samuel White is a GP. Earlier this year he posted a seven minute video on Instagram explaining that he had resigned from his job because, he said, he could no longer stomach the lies surrounding the NHS approach to the pandemic and because medical professionals were having their hands tied behind their backs in treating patients. He stated that he was being prevented from using treatments that had been established as being effective both as prophylaxis and treatment for Covid-19, naming hydroxychloroquine, budesonide inhalers and ivermectin, which he described as safe and proven. He raised concerns about the safety of the Covid-19 vaccine and claimed that 99% of people who contract the virus survive, with the only fatalities in those with multiple medical problems. He stated that masks do absolutely nothing. He invited his viewers to do their own research, but referred to a number of websites which supported his view.
A complaint was made to the General Medical Council, which commenced an investigation into his fitness to practise as a doctor. The GMC referred his case to an Interim Orders Tribunal on the basis that his practise should be restricted pending investigation and the conclusion of the case. The role of an IOT is not to find facts, but to conduct a risk assessment based on the information before them and determine whether an interim order is necessary to protect patients or otherwise in the public interest.
In R (Babbage) v The Secretary of State for the Home Department  EWHC 2995 (Admin), the Claimant applied for judicial review, claiming that his immigration detention from 27 February 2020 to 29 April 2021 had been unlawful and/or that there was a public law error relating to the delay in the provision of s.4 accommodation. Soole J gave a potentially significant judgment concerning the ambit of the ‘grace period’ for locating s.4 Immigration and Asylum Act 1999 accommodation, i.e. accommodation provided to failed asylum seekers. The judge also made some apposite comments concerning the requirement for appropriate evidence in unlawful detention claims from the relevant decision maker.
The Claimant, a Zimbabwean national, was detained as Foreign National Offender and deportation proceedings pursuant to the automatic deportation provisions in the UK Borders Act 2007 were commenced. He was detained under Immigration Act powers from September 2013 until December 2015 at which point his release was ordered by the court on the basis that there was no realistic prospect of returning him to Zimbabwe. During his initial detention he made an application for asylum which was subsequently refused, and he became appeal rights expired. Following a short custodial sentence imposed on 25 September 2019, the Claimant was detained again between 22 October and 4 December 2019, following which an Emergency Travel Document was agreed in principle by the Zimbabwean Embassy, although no ETD was ever subsequently issued. On 7 February 2020, the Claimant received a short custodial sentence for breach of a community order. Upon his release he was detained again under Immigration Act powers. On 25 May 2020 the Case Progression Panel recommended the Claimant’s release. On 7 April 2021 the FTT granted bail in principle subject to the provision of s.4 accommodation. The SSHD granted s.4 accommodation on 15 April but was not provided with accommodation and released until 29 April 2021.
This was a renewed application by the claimants for permission to proceed with a judicial review challenge to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which requires a registered person who runs a regulated activity in a care home to ensure that any person entering the premises has been vaccinated, unless for clinical reasons that person is exempt.
These new regulations regarding the mandatory vaccination of care workers came into effect on 11 November 2021. The claimants, both employed by care homes, challenged the legality of these regulations (passed under the Health and Social Care Act 2008). Whilst the claimants accepted that the 2021 Regulations fell within the scope of the 2008 Act, they argued that s.45E of the Public Health (Control of Disease) Act 1984 was engaged and, when the provisions are read together, s.45E precludes Regulation 5(3)(b). Section 45E provides that Regulations made under s. 45B or s. 45C may not include provision requiring a person to undergo medical treatment.
A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) – UKSC 2020/0133 Court of Appeal (Civil Division)
The Supreme Court has upheld the Court of Appeal’s decision that to have capacity to engage in sexual relations, a person needs to be able to understand that their sexual partner must have the capacity to consent to the sexual activity and must, in fact, consent before and during the sexual activity.
The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. He has a complex diagnosis of autistic spectrum disorder (Asperger’s syndrome) combined with impaired cognition as a result of suffering significant brain damage from epilepsy.
JB has expressed a strong desire to have a girlfriend and engage in sexual relations. Part of JB’s diagnosis of Asperger’s syndrome caused him to be
…obsessionally fixated on a particular woman, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable
His previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them. JB had argued in the Court of that he had capacity to consent to sexual relations in circumstances where the expert evidence had found that JB understood the mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease but that his ‘understanding of consent’ was lacking.
The outcome for JB, if he was found to lack capacity to make decisions in respect of sexual relations, would be that he would be deprived of all sexual relations and that no other person could consent on his behalf (S27(1)(b) Mental Capacity Act 2005(MCA).
JB was successful at first instance in the Court of Protection, but the Court of Appeal reversed the decision and found in favour of the Local Authority. On further appeal to the Supreme Court the court agreed with the Court of Appeal the result being that JB did, in fact, lack capacity.
The Court of Appeal has recently upheld the High Court decision that Section 38 of the Police and Criminal Evidence Act 1984 (“PACE”) is not incompatible with Article 5 of the European Convention on Human Rights (“ECHR”) insofar as it purports to authorise the detention of minors for their own protection, in the case of Archer v Commissioner of Police of the Metropolis EWCA Civ 1662.
For a more detailed exploration of the factual background and High Court decision, please see my post on the UK Human Rights Blog following the lower court’s decision.
In 2012, the Appellant, then a juvenile, was arrested on suspicion of violent disorder and possession of an offensive weapon. This happened five days after he was struck on the head and stabbed in the back and head by people he described as local gang members. He was charged with those two offences, but refused bail for the following reasons by Sergeant Smith:
[…] it is believed necessary to further detain the person for their own protection, that the detained person has been arrested for a non-imprisonable offence and it is believed necessary to further detain to prevent physical injury to another person, that the detained person has been arrested for an imprisonable offence and it is believed necessary to further detain in order to prevent the commission of a further offence.
The grounds are Dp [detained person] has been involved in a ‘gang’ related fight where he has sustained injuries that required hospital treatment. It is feared that if released on bail there will be repercussions where he may sustainfurther injuries or inflict violence upon his original intended victims
This was one of those deeply troubling cases where there was disagreement amongst the family members over whether their incapacitated brother/father should continue with clinically assisted nutrition and hydration. One brother had applied for ANH to be discontinued, but because of the objections of the patient’s son, it was said that he would “continue to be cared for by nursing staff”.
As Hayden J observed, this was a “troubling non sequitur”:
Family dissent to a medical consensus should never stand in the way of an incapacitated patient’s best interests being properly identified. A difference of view between the doctors and a family member should not be permitted to subjugate this best interest investigation.
This particular hearing was ex post facto: in 11th June 2021, Hayden J delivered an extempore judgment in which he indicated why the continued provision of nutrition and hydration to GU, in the manner outlined above, was contrary to GU’s interests. However, having concluded that it was not in GU’s best interests to continue to receive CANH at the hearing on 11th June 2021, he considered it was necessary to afford RHND the opportunity of explaining what had happened. Amelia Walker of 1 Crown Office Row represented the hospital in these proceedings.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.