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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”.
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.
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.
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.
The Divisional Court has dismissed the claim for judicial review challenging decisions made by the Home Secretary that asylum claims made in the United Kingdom should not be determined here and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there. Removal from the United Kingdom in these circumstances involves two decisions: first, a decision that the asylum claim is inadmissible – i.e., that the asylum claim should not be decided on its merits in the United Kingdom; and second a decision to remove the asylum claimant to a safe third country which in these cases is Rwanda. Lewis LJ and Swift J found that the Home Secretary was entitled to rely on assurances provided by the Rwandan government in a specific and detailed memorandum of understanding that Rwanda was a safe third country. They also rejected the argument that the policy was in breach of retained EU law, specifically, Directive 2005/85 art.27(2). Regardless of whether art.27(2) had been breached, there was no breach of retained EU law, by reason of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1 Pt 3 para.6, the Directive was not retained EU law. The judgment is also interesting on the question of standing. The claimants included individual asylum seekers, charities and a home office officials’ trade union. The Court concluded that neither the trade union nor the charities had standing. The union’s members were not directly affected by the policy in any sense relevant for the purposes of seeking judicial review, and it could not be said that any person working for a public authority had sufficient interest to challenge any decision taken by that authority. The charities claimed that they had surrogate standing in that they represented the interests of those who were not well-placed to bring an action themselves. However, that submission was undermined by the presence of the asylum-seeker claimants, who were better placed to bring the claim.
A&E wards dealt with 2.2. million patients last month, while ambulance services attended 81,655 of the most serious incidents: the highest demand on record for November. Strikes are set for December 15 and 21, as Royal College of Nursing members at hospitals across England will strike over below-inflation pay increases. Paramedics and other ambulance staff in most parts of the country will strike a day later on December 21. Labour have indicated they are “willing to talk” about higher pay rises for NHS staff, and would revisit the pay deal handed to NHS staff.
A Manchester High Court order was made on Friday 16 December by Fordham J, ruling that the Home Secretary acted unlawfully in failing to ensure an adequate rate of support for more than 50,000 asylum seekers. The case, brought by an asylum seeker “CB”, challenged the amount of financial support given to asylum seekers during the cost-of-living crisis. An estimated 58,148 asylum seekers in self-catering accommodation receive cash support for basic needs such as food and travel. The level of support is calculated to be the minimum required for day-to-day survival.
The proposed requirement for social media platforms to delete ‘legal but harmful’ content has been partly removed from the Online Safety Bill. While the change affects adult users, the requirement to prevent children being exposed to harmful content remains in the Bill. Culture Secretary, Michelle Donelan, denied that this change was ‘weakening’ the laws protecting social media users because there will be more control about what people see on specific sites. The kinds of material people will have control over include content promoting eating disorders or inciting hate on the basis of race, gender, or religion. The removal of the ‘legal but harmful’ element of the Bill has been welcomed by many who criticised it for ‘posing a threat to free speech’. Lucy Powell MP, however, states that the removal of the section gives a ‘free pass to abusers and takes the public for a ride’.
The Domestic Abuse Commissioner has warned that a ‘deeply unjust’ postcode lottery puts victims of domestic abuse at greater risk depending on where they live in the country. The statistics demonstrate that regional inequalities exist in terms of accessing support for domestic abuse, with a 21% difference between the highest performing area (the North-East) and the lowest performing area (Wales). The report also found that black and minority ethnic victims of domestic violence struggle to access necessary support. Consequently, the Commissioner has urged that the Victims Bill place a duty on local authorities to conduct needs assessments along with a new central obligation to provide greater funding to meet those needs.
New data has revealed that 40 potential breaches of the ministerial code have never been referred for investigation by the ethics adviser. In discovering this, the report stated that it would be concerning if Rishi Sunak’s new adviser was not allowed to examine historical cases, which a parliamentary committee warned would be the case previously. One of the recommendations of the report is to make former ministers and civil servants who break the rules regulating the relation between government and the private sector face legal action.
The High Court has been asked to decide whether a teenager who is on life-support following an apparent suicide attempt can be allowed to die. Hospital bosses have prospectively asked whether it would be lawful to remove life-support treatment, but the trial has been adjourned until the new year so that the family could have ‘as normal and as peaceful’ a Christmas as possible.
In the courts
In The Good Law Project v The Prime Minister [2022] EWCA Civ 1580, the Court of Appeal dismissed an appeal and a claim for judicial review regarding duties owed in relation to public records under section 3(1) of the Public Records Act 1958. S3(1) establishes a duty on ‘every person responsible for the public records… to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping.’ The substantive issues on appeal were (i) whether this duty extended to the preservation of records before they are selected; and (ii) whether there was a duty to comply with 8 published policies. In respect of the first issue, the Court held that Parliament did not impose a general duty to retain public records and did not specify that records were to be retained pending their selection. The Court was not willing to find that the duty was implied either, as to do so would mean the duty applied to all records which would overwhelm the Departments and the National Archives [51]. In respect of the second issue, the Court found that there was no duty to comply with the policies. Importantly, they were directed to ministers and civil servants, not to the public. the Appellant could not, therefore, enforce it against the Respondent. The policies were internal and could not be framed as absolute duties not to use certain methods of communication.
In Kays v Secretary of State for Work and Pensions [2022] EWCA 1593, the Court of Appeal dismissed an appeal against the refusal of a claim for universal credit. The Appellant was a student with severe disabilities. He applied for universal credit under the understanding that students in receipt of disability living allowances are entitled. His claim was refused because he had not been assessed as having limited capability for work before the claim was made (as per the 2020 Regulations), which he claimed was unlawful. The grounds for appeal were that the Respondent acted irrationally in deciding not to consult before making the 2020 Regulations, and that it resulted in arbitrary results. It was held that no duty exists to consult on the making of regulations; the Respondent was not obliged to consult and did not see anything necessitating her to do so. It was held that there was nothing irrational in that approach [26]. It was also held that the 2020 Regulations did not lead to arbitrary results because the issues complained of were not caused by the Regulations themselves. The opportunity to obtain an assessment of work capability was contained in the relevant regulations before the 2020 Regulations were made [32].
In Ware v French [2022] EWHC 3030 (KB), the High Court found in favour of the Claimant in a defamation trial regarding the Panorama documentary ‘Is Labour Anti-Semitic?’ that aired in July 2019. An article was published in Coldtype magazine by the Defendant entitled ‘Is the BBC Anti-Labour? Panorama’s biased AntiSemitism Reporting – A Case to Answer, an investigation by Paddy French’. The Claimant, the programme’s reporter, claimed that the article was defamatory because it caused him serious harm by describing him as a rogue and biased journalist. This position was described as ‘overwhelming’. The wide dissemination of the article, the large interest in antisemitism within the Labour Party, and the Claimant’s high profile as a journalist all contributed to a situation where the allegations directly impacted the Claimant’s ability to earn a living.
A report has found that the newly introduced practice of GPS tagging migrants has left people feeling suicidal and stigmatised. Since August 2021, those on immigration bail facing deportation have been monitored by the State, but in January of this year the measures were increased to GPS tracking their every move. The report raises the following concerns: (i) it causes serious damage to mental and physical health; (ii) it is a form of surveillance that goes beyond what is necessary; and (iii) the tags must be charged for up to 4 hours per day and cannot be removed to do this. In the round, the report characterised the practice as ‘psychological torture’ and recommended that it be stopped.
Thousands of students have decided to bring legal claims against universities over their education during the Covid-19 pandemic. The claims complain that the tuition fees for education remained the same despite everything moving online, the result of which being that resources were vastly reduced. Some students paid £40,000 for the year despite lessons frequently being cancelled and timetables slashed. Part of the issue, according to one student at the University of Nottingham, was that students were not told when the period of online teaching would end, and so were forced to pay rent for no reason. No claim has been brought at present, but the calls have rallied nearly 20,000 students in support.
Dominic Raab has returned to the role of Secretary of State for Justice and Lord Chancellor. Brandon Lewis stepped down from the role after 50 days in office; he recently engraved his name on the foundation stone at London’s Justice Quarter, where construction of a ‘super court’ began last week.
On 25 October, Safeguarding Minister Mims Davis announced new provisions, collectively known as ‘Kay’s Law’, to better protect victims of crimes such as domestic abuse and sexual assault. The reforms, coming into force this week, include imposing a duty upon the police force to take into account the views of victims before releasing someone on bail, and encouraging the use of pre-charge bail when necessary and proportionate. These reforms coincide with further measures to support victims, including the ‘ENOUGH’ campaign. The campaign provides information on support services, safe ways to intervene if someone witnesses an incident of violence against women and girls, and offers guidance for individuals worried about their own behaviour.
The ruling has been released in the deportation case of two members of the Rochdale grooming gang. Adil Khan, 51, and Qari Abdul Rauf, 52, lost their appeal against deportation after a seven-year legal battle following their convictions of child sex offences in May 2012. Although the appeal was heard at an immigration tribunal in June, with a decision made in August, judges have only just released their legal ruling. The challenge against deportation on human rights grounds failed; in both individuals’ cases there was a “very strong public interest” in them being removed from the UK.
Lawyers representing TFL have requested permission from the High Court to take legal action against a further 121 named people following the intensification of Just Stop Oil protests. Earlier this month Mrs Justice Yip granted an injunction against 62 named “defendants” and against “persons unknown”, also making an order that the Metropolitan Police should “disclose” to TFL the names and address of individuals arrested as a result of the protests.
In other news
A report, from the Minderoo Centre for Technology and Democracy, at the University of Cambridge, has stated that live facial recognition technology (LFR) should be banned from use in streets, airports and any public spaces. The study examined three deployments of LFR, one by the Metropolitan police and two by South Wales police; it found that all three failed “to meet ethical and legal standards”.
The Law Society has found that, at the current rate of progress, it will take more than 125 years before there is proper representation within the England and Wales judiciary. Black judges make up just 1.09% of the judiciary, compared with 1.02% in 2014, and it would take until 2149 for their representation to match current estimates for the general population (3.5%). For female representation to be achieved, it is expected to be at least another decade, and for people of Asian ethnicity, that stage in anticipated to be reached by 2033.
For the first time, the information commissioner has issued a blanket warning on the ineffectiveness of ‘emotional analysis’ technologies. The attempted development of ’emotional AI’ is one of four issues that the ICO has identified in a study of the future of biometric technologies. The “pseudoscientific” nature of the field makes it untrustworthy, especially in instances of gathering information related to important decision making.
In the courts
On 21 October the Court of Appeal handed down judgement in Rowe v London Borough of Haringey[2022] EWCA Civ 1370. The case concerned HHJ Roberts’ order dismissing the Appellant’s appeal against the London Borough of Haringey’s review decision dated 23 June 2021. The decision stated that the Appellant was not statutorily overcrowded under the requirements of Part X Housing Act 1985 (HA 85) and it was reasonable for her to remain in her accommodation. The dispute arose as to whether Part X HA 85 applied to the house as a whole, as the Appellant contended, or the Appellant’s room, as the Respondent contended. In post-hearing submissions, the Respondent contended whether Part X HA 85 applied at all, arguing instead that the relevant measure was that in Part 2 Housing Act 2004. The Court declined to decide on this issue, instead proceeding on the original submissions that Part X HA 85 applied. The Court held the property was not a ‘separate dwelling’ for the purposes of s.325 and s.326 HA 1985 and that no breach of overcrowding had occurred. Ground 2 of the appeal, assessing reasonableness of occupation was predicated on Ground 1, which had been dismissed. The Court held that the Respondent’s withdrawal of its original decision, via a letter dated 12 May 2022, due to their mistake in not assessing the property’s status as an unlicensed HMO did not render the claim as academic.
On 26 October, the High Court handed down judgement in Three Counties Agricultural Society v Persons Unknown & Ors[2022] EWHC 2708 (KB). The case involved an application for a precautionary injunction against ‘Persons Unknown’ by the Claimant, in an effort to curb protest activity at the Three Counties Defence and Security Exposition. The Court stated that the starting point for the grant of an injunction was s 37(1) of the Senior Courts Act 1981. In this instance European Convention rights were engaged, therefore the correct test to apply was the more stringent one laid down in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100. The Court held that the injunction to prevent trespass upon the Claimant’s land was appropriate and necessary. In respect of the part of the Order relating to activity on the highway, the Court stated it must strike a balance between the rights of the protestors and the rights of the Claimant to access and egress its land. The Court held that granting the injunction would not unlawfully interfere with Article 10 and 11 rights of the protestors, and that any interference presented by the injunction was proportionate.
Rishi Sunak has formally been appointed the new UK prime minister, following Lizz Truss’ resignation on Thursday 20 October 2022. He is the youngest prime minister for more than 200 years and the first British-Asian prime minister.
A report by Baroness Casey has revealed that claims against Met Police officers of sexual misconduct, misogyny, racism and homophobia have been badly mishandled. According to the report, 1,809 officers – or 20% of all those facing allegations – had more than one complaint raised against them: less than 1% of officers facing multiple allegations had been dismissed from the force. Met Police Commissioner Sir Mark Rowley says he is ‘appalled’ at the findings and the situation ‘cannot continue’.
The University of Manchester has released a report which finds the judiciary in England and Wales to be ‘institutionally racist’. In a survey of almost 400 lawyers and judges, 95% said that racial bias played some role in outcomes in court and 29% said it played a ‘fundamental role’. The study also showed that judicial discrimination to be directed particularly towards black court users – from lawyers to witnesses to defendants. Since 2020, however, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge.
Law firms in the UK will be banned from providing ‘transactional legal advisory services’ to Russians, as part of an effort to increase sanctions. The decision came after Putin’s announcement of the illegal annexation of 4 Ukrainian regions. The UK Government had previously banned services exported to Russia back in May (including accountancy, management consultancy, and PR), but legal services were deliberately excluded from this. The justification for that exclusion was the Rule of Law principle that everyone has a right to access legal representation. In order to maintain this principle as far as possible, the ban on legal advice has been limited to commercial and transactional services with a vision to impede Russian business’s ability to operate internationally.
The Law Commission has proposed to ban discrimination in the appointment of arbitrators. At present, women are still ‘around three times less likely to be appointed as arbitrators than men’. The proposed reform would amend the Arbitration Act 1996 so that any agreement in relation to proposed arbitrator’s protected characteristics should be unenforceable. At present, many arbitration agreements require a ‘commercial man’ or similar. This situation received judicial treatment in 2011 in the case of Hashwani v Jivraj, where it was decided in the UKSC that since an arbitrator was not appointed under a contract of employment, employment law rules against discrimination did not apply.
Barristers on strike have had the first talk with the Justice Secretary, the newly appointed Brandon Lewis. The chairman of the Criminal Bar Association, Kirsty Brimelow KC, said the group was willing to negotiate, having taken the decision to strike following repeated requests to meet with Lewis’ predecessor, Dominic Raab, to no avail. The Justice Secretary described the talks as a ‘constructive initial meeting’ and urged the CBA to stop the strike while negotiations were underway. The CBA is still asking for a 25% rise in pay for legal aid in defence cases.
On Thursday 8 September, Queen Elizabeth II, the UK’s longest-serving monarch, died peacefully at Balmoral aged 96. She is succeeded by her son, King Charles III. He described the death of his mother as a ‘moment of great sadness’ for him and his family, and that her loss would be ‘deeply felt’ around the world. Her state funeral this Monday was watched by around 4 billion people worldwide, and more than a million people lined the streets of London to pay tribute.
On Friday 17 September, the measure known as section 28 was extended to five more crown courts, taking the total number to 63. The policy allows complainants of offences including modern slavery to be cross-examined before trial in front of a limited number of people. Although many barristers support the principle of the policy, some have stated there are insufficient resources for the scheme, particularly in the light of the indefinite walkout over legal aid fees. Many advocates refused to do section 28 cases pre-strike given the amount of extra unpaid work required.
The quarter-of-a-billion-pound IT project rolled out by the Ministry of Justice to increase the efficiency of sharing information between courts, lawyers and police has come under criticism. The Common Platform software system has been accused of putting the justice system ‘at risk’. It is reported the system has been resulting in difficulties for lawyers, unlawful detentions, and wrongful arrests. Whistle-blowers have called the system ‘faulty, unsafe and unfinished’.
One of the first decisions taken by the new Prime Minister, Liz Truss, has been to halt Dominic Raab’s Bill of Rights plan. The bill would have given legal supremacy to the UK Supreme Court, explicitly entitling it to disregard rulings of the European Court of Human Rights (ECtHR). The bill is now ‘unlikely to progress in its current form’, a Whitehall source of the BBC has expressed, leaving doubt over whether Raab’s attempts to repeal the Human Rights Act 1998 will materialise. Vice President of the Law Society, Lubna Shuja, said that ‘the only smart way to proceed would be to go back to the advice of the independent review it [the Government] commissioned.’
The legal challenge against the Rwanda asylum plan is being heard before the High Court. While the trial is ongoing, and no judgment will be handed down for some time, the Government’s legal arguments defending the plan are now known. Part of the defence advanced by Lord Pannick KC, counsel for the Government, relies on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which confers on ministers the power to send asylum seekers to safe countries. If they are of the opinion the asylum seekers will be safe and not put in danger, the Home Secretary can transfer them to other states. The main hurdle for the Government in this defence will be the UN Refugee Agency’s declaration that Rwanda is an unsafe place for migrants. The Court has asked for a detailed response to this critical point.
Liz Truss has been confirmed as the new prime minister. She is expected to freeze energy bills at approximately £2,500 a year and to provide a £400 universal handout. She has reportedly ruled out the idea of a windfall tax on oil companies, which was proposed by Labour. She is apparently considering reviewing workers’ rights, as part of her plan to scrap remaining EU regulations by the end of next year.
The chair of the Criminal Bar Association has called on Dominic Raab to hold talks to resolve their industrial action, which began in April. On Monday, criminal barristers began an indefinite all-out strike, calling for legal aid fees to increase by 25% immediately.
In other news
Ministers plan to introduce legislation to encourage nurses and dentists trained elsewhere to begin working for the NHS. The health secretary, Steve Barclay, is hoping to boost overseas recruitment in health and social care. This move comes after the number of unfilled NHS posts reached a record high of 132,139 earlier this year. Link 5 – ministers to make it easier
Two councils are planning to seek permission to appeal to the Supreme Court following two successful appeals which involved the striking out of negligence claims that had been brought against them. The appeals considered when children being cared for by local authorities under the Children Act 1989 are owed a duty of care by those local authorities and the social workers for whom they are vicariously liable.
The conservation charity WildFish has asked the Government to withdraw its Storm Overflow Discharge Reduction Plan, on the grounds that it is ‘unlawful on many counts’ by encouraging breaches of environmental laws to continue. The Plan allows the continuation of environmental damage caused by up to 100% of storm overflows discharging into high priority sites. It has been labelled a ‘smoke and mirror’ approach which does not deal robustly with water companies’ sewage pollution of UK rivers.
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