Snowed in while locked down? What would be more cheering reading than news from one of the no-frills airlines that there will soon be a fast track for vaccinated passengers to leave these shores for balmy Mediterranean beaches, or as the ad puts it “sunshine destinations”. Ryanair recently put out the slogan
Jab and Go
This advertising campaign, encouraging consumers to book flights following the roll out of the UK vaccination programme, might have been a perfectly understandable response to the year-long shock of having very few passengers to transport and the equally deranging inability of citizens to travel abroad.
But it turns out that Ryanair were somewhat ahead of themselves, as the Advertising Standards Authority has found that it was misleading for the airline to give the impression that most people who are hoping to take to the air over the Easter or summer holidays this year will have had the Covid-19 vaccination in time to do so.
On 8 February 2020, small but significant changes were made to the Part 3 (Case Management) of the Criminal Procedure Rules and Practice Directions 2020 (“CrimPR”). These changes remove the requirement that defendants in criminal trials provide their nationality to the court at preliminary hearings. The question is now to be asked only where a court passes an immediate or suspended custodial sentence.
As any working parent will tell you, childcare is expensive. Unlike in some other European countries, there is no universal provision of free or affordable childcare for school age children in the UK. This can create a barrier for parents, especially lone parents, returning to work.
There is some support in the system of universal credit, a means-tested benefits for families on low income. This provides for a childcare costs element (CCE), which allows eligible claiming parents to be re-imbursed up to 85% of the costs of childcare.
However, the system has a flaw. Unlike other parts of universal credit, such as the housing costs element (HCE), a claimant is entitled to be paid the CCE only if she has already paid the charges, rather than merely incurred them (the ‘Proof of Payment rule’). This means that a parent claiming the CCE (who is disproportionately more likely to be a woman) must first pay her childcare provider and then re-claim the costs several weeks afterwards. Some may not be able to afford to do so.
Ms Salvato is one such lone mother, who brought judicial review proceedings claiming that the differential method for reimbursing childcare costs constituted indirect discrimination against women contrary to Article 14 (read with Article 8 and/or Article 1 Protocol 1) ECHR and was irrational at common law. The Administrative Court agreed on both grounds.
On 18 December of last year, a judgment was handed down by the cour administrative d’appel à Bordeaux (the appeals court of the administrative court of Bordeaux) which, until quite recently, went under the international radar. In a landmark judgment, the Court ruled that the respondent, an asylum seeker from Bangladesh (‘Mr A’), could not be returned to his country of origin owing to two medical conditions: allergic asthma and sleep apnea. What was remarkable about this judgment was that it was the first time that a French court has taken pollution into account in a decision of this kind. The Court stated:
[Mr A] would be confronted upon arrival in his country of origin […] with a worsening of his respiratory disease because of the atmospheric pollution.
An article published by the Guardian brought the case to the attention of the British media, and the story has since been picked up by a number of national papers. This article will seek to shed light on the judgment, which is only available in French, and the legal circumstances leading to this groundbreaking decision.
In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.
There were three issues:
1. Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).
2. Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?
3. If permission is given to amend the claim, should the new ground succeed?
The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage. This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law. Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’. During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work.
Harrison Jalla and others v. (1) Shell International Trading and Shipping Company (2) Shell Nigeria Exploration and Production Company Limited [2021[ EWCA Civ 63 – read judgment
A traditional phrase in the common law, such as “continuing nuisance”, may mean a number of things in different contexts, as we will see clearly from this oil spill case. The claimants argued, unsuccessfully, that the presence of oil from the spill which had come onto their land was a continuing nuisance for as long as it remained there – which, they said, should get them around the limitation problems in their claims.
The defendants/appellants in this case were a group of activists who have become known as the “Stansted 15”.
On 27 March 2017, the appellants surrounded a Boeing 767 at Stansted Airport which had been chartered by the Home Office for the purpose of deporting 60 individuals to Ghana, Nigeria, and Sierra Leone.
Equipped with makeshift tripods made from scaffolding pipes and some builder’s foam, the appellants cut through the perimeter fence of the airport and used the tripods a to lock themselves together, surrounding a plane and using the foam to secure the locking mechanisms. By ‘locking on’ to each other, the group prevented the use of the plane.
Máiréad Enright is a Leverhulme Research Fellow and Reader in Feminist Legal Studies at Birmingham Law School. Her current work is on reproductive rights, activist legal consciousness and historical reproductive injustice. She tweets @maireadenright.
See a blog post she authored on the Oxford Human Rights Hub on the Mother and Baby Homes Commission report here.
Last week’s round-up detailed China’s ongoing oppression of Uyghur Muslims in Xinjiang province. This week, the government narrowly defeated a backbench rebellion in the form of an all-party amendment, strongly endorsed in the Lords, which would have given victims of genocide the ability to obtain a determination in the High Court confirming the existence of genocide in their country. Such a determination would have required Parliament to reconsider all trade deals with the country in question. The amendment aimed to deal with a current impasse whereby international courts cannot make a ruling on genocide because the involved nations, for example, China, veto such matters from consideration, or do not recognise the relevant courts. The Trade Secretary, Greg Hands, had strongly opposed the amendment, suggesting that it fundamentally undermined Parliamentary sovereignty in giving the courts too much power to determine UK trade deals. The government’s failure to act in seeking to prevent serious violations of human rights has been widely criticised. Tobias Ellwood, the chair of the defence select committee, suggested that ‘the UK was suffering from an absence of clarity about what we believe in’. In response to the motion’s defeat, the independent peer Lord Alton, who co-sponsored the motion in the Lords, has stated that the amendment will be re-drafted to make explicit the requirement that Parliament would vote on the revocation of all trade deals with a country where a determination of genocide had been made. The revised amendment will be re-submitted in the Lords as quickly as possible. The US State Department’s declaration that the treatment of Uyghur Muslims in China represents genocide and crimes against humanity on Tuesday, is likely to embolden rebels to maintain their pressure on the UK government for further action.
Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.
The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.
In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)
Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)
In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.
This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentaryquoted below).
In Evie Toombes v. Dr. Philip Mitchell  EWHC 3506 the High Court has given renewed consideration to claims for, so called, “wrongful life”. Can a disabled person ever claim damages on the basis that they would not have been born but for the defendant’s negligence? The Court answered that question with a resounding “yes”.
Where a disabled child would not have been born but for the Defendant’s negligence, it is well established that their parent has a claim for the reasonable costs associated with the child’s disability . That is a “wrongful birth” claim: see Parkinson  EWCA Civ 530. However, the child cannot bring a claim for personal injury on the basis that, with competent advice, their mother would have chosen a termination. In McKay v. Essex Area Health Authority  2 All ER 771 the Court of Appeal affirmed the principle that a disabled claimant cannot sue for “wrongful life”. In Toombes the Court reconsidered the scope of that prohibition. Did it apply only to termination cases? Or did it extend to claims that, absent the negligence, a disabled person would never have been conceived?
In The Government of the United States v Julian Assange (2021), the District Judge sitting at Westminster Magistrates’ Court discharged the American extradition request against the founder of WikiLeaks because there is a substantial risk that he would commit suicide. Given Julian Assange’s political notoriety as an avowed whistle-blower, however, the judgment is significant for its dismissal of the defence’s free speech arguments. This article analyses why these human rights submissions were unsuccessful.
The Criminal Charges against Assange
In December 2017, Assange was charged with a conspiracy to commit unlawful computer intrusion contrary to Title 18 of the US Code. Assange is alleged to have conspired with Chelsea Manning to steal classified material. Manning was previously convicted by court martial in July 2013 for violations of the Espionage Act 1917 and other related offences.
Subsequently, in May 2019, a federal grand jury returned a superseding indictment containing eighteen counts alleging further offences related to the obtaining, receiving and disclosure of “National Defense Information” (contrary to Title 18).
The information Assange is alleged to have unlawfully acquired and published relates to the illegal actions of the United States’ military and intelligence agencies during the wars in Afghanistan and Iraq, as well as the abusive treatment of detainees at Guantanamo Bay. An extradition request was submitted to the British government in June 2019.
One of the many outrages perpetrated by Donald Trump in the waning of his Presidency was granting a pardon to four private military contractors for their role in the Nisour Square massacre. Those military contractors had opened fire indiscriminately, killing 14 Iraqi civilians, including two children.
As with many of Trump’s assaults on the Rule of Law, the thought was that this kind of abuse could not happen in the UK. But certainty over our moral high ground will be short-lived if Parliament passes the Overseas Operations (Service Personnel and Veterans) Bill – a Bill whose precise aim is to make it much harder to prosecute British military personnel for abuses (including murder) carried out overseas. The Bill reaches Second Reading this week in the House of Lords.
Hurdles to prosecution under the Bill
The Bill introduces three substantial hurdles to the prosecution of British soldiers if the incident took place overseas more than five years ago. The first is that prosecutions must only be “exceptional circumstances”. The second is that the consent of the Attorney General is required. The third is that, in contemplating prosecutions, prosecutors must place particular weight on a list of exculpatory factors, but with the absence of a list of factors tending in favour of prosecution.
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.