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The pumping of raw, untreated sewage into Britain’s waterways is one of the defining political issues of the day. Its potency as a legal issue, however, is limited. That, at least, is the outcome of R (Wild Justice) v OFWAT [2023] EWCA Civ 28.
Sewage polluting the River Coln, at Fairford, Gloucestershire, this January. Photograph: Graeme Robertson/Guardian
The Claimant, a not-for-profit organisation which advocates for the protection of wildlife and nature, asked the Court of Appeal for permission to apply for judicial review of the Respondent’s alleged failure to perform its duties to regulate the discharge of raw sewage.
Permission had already been refused twice below – on the papers by Ellenbogen J, and at an oral hearing by Bourne J. This appeal was heard by Bean LJ.
The United States has formally determined that Russia has committed crimes against humanity in Ukraine. Speaking at the Munich Security Conference on Saturday, US Vice-President Kamala Harris accused Russia of ‘gruesome acts of murder, torture, rape and deportation’ and said those who had committed crimes would be held to account. UK Prime Minister Rishi Sunak also spoke at the event over the weekend, where he urged leaders to ‘double down’ on military support for Kyiv.
Syria and Turkey continue to face devastating consequences in the aftermath of last week’s earthquakes. The death toll caused by the 7.8 magnitude tremor has surpassed 46,000 and is expected to continue to rise. In Turkey, the scale of the damage has been partly attributed poor construction practices and President Erdogan’s government has been criticised for failing to implement stricter building regulations.
In Syria, the UN is facing backlash for failing to deliver humanitarian relief to the north-western, opposition-held regions of the country. The Syrian government has allowed two new border crossings to be opened from Turkey. The UN’s decision, however, to wait for President Assad’s permission to use these routes has been widely condemned. Meanwhile, the British government has pledged an additional funding package to support the earthquake recovery effort.
Finally, Boris Johnson has urged Prime Minister Rishi Sunak not to abandon the Northern Ireland Protocol Bill. Set in motion by Mr Johnson’s government, the bill gives the UK Government powers to dispense of parts of the Northern Ireland Protocol. An announcement on a prospective new agreement between Sunak’s government and the EU on Northern Ireland is expected this week.
The Public Order Bill has concluded its Report Stage in the House of Lords and is now due to return to the House of Commons. The Peers voted down several government proposed amendments including those which allowed police powers to (i) pre-emptively shut down protests before any disruption is actually caused; (ii) stop and search without suspicion; (iii) impose Serious Disruption Prevention Orders without conviction. The removal of these amendments does mitigate some of the damage that the Bill threatened to have on the Article 11 right to protest. However, not all amendments were put to a vote and concern prevails about the future impact of the bill.
The Church of England’s General Synod has voted in favour of offering blessings to same-sex couples within Anglican churches following a legal marriage ceremony. This step faces conservative resistance, for example by the Church of England Evangelical Council, whilst also conspicuously falling short of allowing same-sex marriage within the Church.
The UK government has introduced a new amendment to the Social Housing Regulation Bill which enforces time limits within which landlords will have to investigate and fix instances of damp and mould. Tenants will be able to rely on these rules which will be incorporated into tenancy agreements. This new amendment is named “Awaab’s law” after two-year old Awaab Ishak who died from respiratory failure that was caused by a landlord’s failure to resolve mould issues in his home.
Three recent cases indicate a substantial change in law and practice, with inquests now seemingly free to make a determination of unlawful killing notwithstanding the acquittal of a defendant at a criminal trial.
The coronial and criminal jurisdictions have a long and tangled relationship. The word “murder” derives from “murdrum”, the Medieval tax levied on a community after a coronial finding that an unidentified body was that of a Norman. In later centuries, juries at inquests could find people guilty of murder, empowering the coroner to issue an arrest warrant and commit them for trial. Yet from common soil and entwined roots, inquests and trials grew into increasingly distinct plants and during the twentieth century the primacy of criminal investigations and prosecutions became enshrined in legislation. Coroners were required to suspend inquests during criminal proceedings. If resumed, those inquests were prohibited from coming to conclusions that were “inconsistent” with the verdict of the criminal court: see what is now para.8(5) of Schedule 1 of the Coroners and Justice Act 2009 (“CJA 2009”). After 1977, inquests were prohibited from appearing to determine criminal liability on the part of a named person: see what is now s.10(2)(a) CJA 2009. The conclusion of “unlawful killing” remained, but inquests could no longer formally identify who was responsible; that was a matter solely for the criminal courts.
The Strikes (Minimum Service Levels) Bill has been voted through the House of Commons amidst historic industrial action across the UK. Workers in health, education, transport and the civil service came out on strike in disputes over pay, jobs and conditions, and members of the Fire Brigades Union have voted overwhelmingly in favour of walking out. The synchronisation of strikes across different sectors has seen levels of disruption not seen in at least decades. The government has published a memorandum on the compatibility of the Bill with the ECHR, but the issue is far from clear cut – the Labour party and trade unions have opposed the Bill, and the Joint Committee on Human Rights has put written questions to the Secretary of State. The TUC has not ruled out legal action if the Bill is passed, and February 1st saw nationwide protests on the “right to strike day”.
In Episode 178 Emma-Louise Fenelon speaks to Shahram Sharghy and Jo Moore about how to become a barrister. The episode considers the kind of research that is essential to do in advance, navigating the pupillage gateway, preparing for interviews, and dealing with rejection.
Nadhim Zahawi has been sacked from the Cabinet after making what he calls a “careless and not deliberate” mistake with his taxes. He reportedly paid a 30% penalty fee on top of the money owed to HMRC in connection with his use of an offshore company to hold shares in the polling company YouGov. The Prime Minister had been resisting calls to fire his Minister Without Portfolio, who also serves as Chairman of the Conservative Party, until the independent advisor tasked to investigate the issue made clear that there had been a “serious breach of the ministerial code.” Zahawi’s lawyers had been attempting to obstruct journalists exposing that he was being investigated over his tax affairs with threats of legal action.
Another investigation is being launched by the BBC into the hiring of its current chairman, Richard Sharp. The Tory donor allegedly helped Boris Johnson secure a large loan soon before being recommended by the then prime minister for the job. Sharp has denied he was involved in making the loan, claiming that he had “simply connected” people. The Labour Party has called for a parliamentary investigation into the allegations.
In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.
Photograph: Tom Pilgrim/PA; the Guardian.
The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:
the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.
Grant Shapps, the Business Secretary, has set out the anti-strike laws that are planned to enforce minimum levels of service during strike action. Under the proposals, some employees would be required to work during a strike and could be fired if they refuse. It would be for the ministers to set the minimum levels of service, and there would be no automatic protection from unfair dismissal in breaching these levels. Unions have criticised the bill for being ‘undemocratic, unworkable, and almost certainly illegal’, and Labour have stated it would repeal the legislation if it wins the next general election. The bill has been defended by Shapps, who states it is aimed to protect lives and livelihoods.
The investigation into alleged war crimes in Ukraine will be considered in a major international meeting to be held in London in March. In attendance will be the prosecutor of the International Criminal Court, Karim Khan, in order to inform about the court’s work in investigating war crimes. The meeting comes as Putin continues to target crucial energy infrastructure as he destroys central heating supplies in the heart of winter. Dominic Raab has stated that ‘Russian forces should know they cannot act with impunity and we will back Ukraine until justice is served’; the meeting is designed to determine how to further assist the ICC in bringing that justice.
In Episode 177 Emma-Louise Fenelon speaks to Margaret Bowron KC about how to avoid disastrous expert evidence. This episode is an update to the popular 2019 episode with Neil Sheldon KC, available here.
Margaret and Emma discuss mistakes in expert reports, the standard to be applied to expert reports, actual and potential conflicts of interest, the importance of staying within one’s area of expertise, and the danger where lawyers get involved in joint experts discussions.
· Robinson v Liverpool University NHS FT & Dr Mercier here (**UPDATE** Shortly after we recorded this episode, the wasted costs order in this case was overturned by the High Court, see the judgment here)
· Andrews v Kronospan Ltd [2022] EWHC 479 (QB) here
Remember that listening to our podcasts will earn you CPD points. Episodes like these, with detailed practical material, can be found in our back catalogue; for example the last discussion on expert evidence with Neil Sheldon here, and here are a few others:
President Putin has ordered his troops in Ukraine to cease fire for 36 hours over Orthodox Christmas and has urged Ukrainian forces to do the same. However, the move was rejected by Kyiv, and the US state department, as a “cynical trap” and propaganda move. Putin announced the truce, to begin at noon 6 January 2023, after a call by Patriarch Kirill, leader of the Russian Orthodox Church.
Ministers announced legislation that looks to enforce “minimum service levels” in six sectors, including the health service, rail, education, fire and border security. Unions that refuse to do so will face injunctions and could be sued for damages. Employers will be able to sue unions, and dismiss union members who are told to work under the minimum service requirement but refuse to do so. Prime minister Rishi Sunak, however, vetoed more far-reaching measures that would have increased the threshold for strike ballots, doubled the notice for industrial action from two weeks to a month, and banned ambulance workers from striking.
The British Medical Association have informed the government that junior doctors will strike for 72 hours in March if the action is supported in a ballot opening next week. Doctors would not provide emergency care during the strike. The union, which has 45,000 junior doctor members, wants their real-terms pay restored to 2008 levels: a 26.1 per cent increase. The scale of the strike proposed by the BMA is larger than those to be held by nurses and ambulance staff, and will inflame tensions between the unions and the government. The Royal College of Nursing strikes are for 12 hours at a time, and the ambulance unions are holding 24-hour strikes.
The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
The Government has launched legal action to recover £122m from PPE Medpro, the supplier recommended by Conservative peer Michelle Mone. The claim is grounded in a contract for the supply of 25m sterile surgical gowns awarded via the ‘VIP lane’ used during the pandemic to prioritise companies with political connections. None of the gowns purchased were ever used in the NHS as they were allegedly not fit for purpose, although Medpro insist that the gowns passed inspection and will defend the claim. The case will be of significant public interest following the revelation that £29m originating from profits from this contract was paid to an offshore trust whose beneficiaries were Mone and her children. Mone’s husband also profited at least £65m from these government contracts. Mone remains insistent that she had no involvement in Medpro and has not gained financially from the contracts.
The Scottish Parliament have passed the Gender Recognition Bill, allowing people to legally change their gender through a system of self-identification. The Bill seeks to make it easier for individuals to legally change their gender, removing the need for a psychiatric diagnosis of gender dysphoria to gain a gender recognition certificate, and extending the new system to 16 year olds. It also reduces the time someone has to have been permanently living in their acquired gender before they can apply (to 3 months down from 2 years). The Bill has been the centre of a much heated debate, with potent beliefs on either side. While the parliamentary debate itself was disrupted within minutes by protesters shouting ‘shame on you… this is the darkest day’, many have come out in support of the Bill for the protections it provides for trans people.
In our final episode of the year, Rosalind English, Lucy McCann and Jonathan Metzer discuss some of the most important judgments that have been handed down in the last twelve months. The recording of this episode took place a day before judgment was handed down in the “Rwanda case” ( R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2022] EWHC 3230 (Admin).
Below are the citations for all the cases discussed in this episode.
R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410
Attorney General’s Reference (No. 1 of 2022) [2022] EWCA Crim and Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32
R (Gardner) v SSHSC [2022] EWHC 967
R (Good Law Project & Runnymede Trust) v Prime Minister and SSHSC [2022] EWHC 298
R (HM, MA and KH) v SSHD [2022] EWHC 695 (Admin)
Leigh & Ors v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin)
Hughes v Rattan [2022] EWCA Civ 107
Vardy v Rooney [2022] EWHC 2017 (QB) (“Agatha Christie).
A link to the full transcript for this episode is available here.
In Episode 175, Emma-Louise Fenelon speaks to Rory Badenoch and Rajkiran Barhey about recent developments in inquest law. This episode touches on the following important cases:
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