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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.
Members of the Criminal Bar Association have voted in favour of an indefinite strike, escalating the industrial action that the courts have witnessed since June. The decision follows failed negotiations with the Ministry of Justice, with Dominic Raab still having not met with the CBA and the government standing firm in its position. The MoJ have expressed their disapproval of the decision, labelling it ‘irresponsible’. The CBA, alternatively, have accused the government of overseeing a ‘recklessly underfunded’ criminal justice system. In response to the decision, Raab has proposed granting more solicitors rights of audience, allowing more to advocate in the Crown court. The strike is due to commence on 5 September, coinciding with the announcement of the new Conservative party leader.
Liz Truss has expressed that she will consider triggering Article 16 of the Northern Ireland Protocol if she were to be successful in her leadership campaign. Article 16 provides ‘safeguarding measures’ that entitle the UK or the EU to suspend any part of the agreement. It does not, however, dismantle the Protocol in its entirety. Rather, triggering the article would provide an alternative to other suggestions which propose primary legislation to deem it necessary that the Government not comply with its existing obligations under the agreement. Triggering the article would exhaust the legal options the UK has before following through on this threat to discard the agreement altogether. The news comes after the EU launched a series of legal challenges against the UK’s commitment to the Protocol.
A former Afghan judge, who is fleeing from the Taliban with her son, has appealed against the Home Office rejected her application to enter the UK. Lawyers representing the woman state that she and her son have been left in a “gravely vulnerable position” following the withdrawal of western troops from the country. They had been chasing the Home Office for a decision on their application, but stated that the decision-makers were “dragging their feet”. They were told the delays were due to resources being redirected to Ukraine. After nine months the applications were refused, and an appeal is expected to take more months still. The family are currently in hiding in Pakistan after their home in Kabul was raided. Their residency is dependent on the goodwill of a landlord putting himself at risk of criminal punishment. Their refused entry is believed to be a result of administrative error.
The UK government has submitted its argument in the case which may settle whether Members of Scottish Parliament could legislate for a vote on Scottish independence without Westminster’s backing. The submission from the Advocate General precedes a full hearing on 11 and 12 October when oral arguments will be heard. The Supreme Court will rule on whether Holyrood alone has the power to hold an independence vote, which First Minister Nicola Sturgeon wants to hold on 19 October 2023. Last month, the Scottish government published its own case, arguing the referendum is ‘advisory’ and would have no legal effect on the union.
The House of Commons Women and Equalities Committee published a report on 4 August recommending the government should improve legal protections for unmarried couples by introducing an opt-out cohabitation scheme proposed by the Law Commission in 2007. The scheme aims to protect eligible cohabitants who are economically vulnerable, preserve individual autonomy, maintain a distinction with marriage and civil partnership, and provide certainty about who qualifies as a cohabitant. The committee said the government should commit to publishing draft legislation for scrutiny in the 2023-24 parliamentary session.
On 10 August, Suella Braverman delivered a speech for the Policy Exchange’s Judicial Power Project stressing the need for the government to better clarify the scope of fundamental rights. She called to curb the influence of the European Court of Human Rights, citing the ‘intensive standard of proportionality under the Human Rights Act’. The speech dealt with issues including the Equality Act, Single Sex Spaces- specifically in schools- convention rights and illegal migration.
Conservative frontrunner Liz Truss is promising to cut taxes this winter to support families amidst rising energy bills, through an emergency budget that would be enacted this September. Sunak, her rival, has pledged to provide a £15bn overall package of assistance with energy bills. Criticisms have been raised of Truss’ plans, however, with suggestions that they could cost £30bn, £40bn or even £50bn per year. Both candidates’ plans have been criticised for not being accompanied by plans for lower spending that would make them sustainable. Labour’s Rachel Reeves has argued that amidst ‘fantasy economics and unfunded announcements from the Tories’, Labour alone can offer Britain the fresh start that it needs.
A survey by the British Dental Association and the BBC has shown that 91% of NHS practices in England are not accepting new adult patients. Louise Ansari, national director of Healthwatch England, has called the results of the survey ‘dire’. Stories have emerged of people pulling out their own teeth and making their own teeth out of resin to stick back on with superglue. The health secretary has noted the ‘urgency’ of preparing the NHS for winter, amidst the pressures of coronavirus, the rising cost of living and seasonal flu. Whether the Department of Health and Social Care’s recent comment regarding the ‘government priority’ of NHS dental care will translate into satisfactory results remains to be seen.
On Monday 25 July, the Court of Appeal refused permission to appeal against a decision to end 12-year old Archie Battersbee’s life support treatment. The decision was stayed for 48 hours – until 2pm on Wednesday – to allow Archie’s parents to apply to the European Court of Human Rights for interim relief. On Tuesday 2 August, the family’s fresh appeal to the Supreme Court, based on ‘new evidence’ of Archie attempting to independently take breaths, was also refused.
Also on Monday, the London Central Employment Tribunal ruled in favour of Allison Bailey, awarding her £22,000 in her discrimination case. The Tribunal found that the barrister at Garden Court Chambers (GCC) had been victimised and discriminated against by her employer for expressing gender critical beliefs. The claim against Stonewall Equality Ltd was dismissed; the LGBT charity worked with GCC, which had joined its ‘diversity champions’ scheme. Ms Bailey accused Stonewall of ‘trans-extremism’.
Thursday 28 July marked a historic moment for the UK’s legal system; for the first time, filming and public broadcasting was allowed in the Crown Court. Cameras recorded Sarah Munro QC sentencing Ben Oliver, who killed his grand-father in January 2021. Her judgement, handing down a life sentence with a minimum term of ten years and eight months, was accompanied by an informative explanation.
Last week, the EU launched new legal action against the UK over the Northern Ireland protocol. The four new claims, which concern a failure to apply the customs and tax rules as agreed in 2019, are prompted by the Northern Ireland Protocol Bill passing through parliament that plans to discard the arrangements. Under the bill, companies in Great Britain who wish to export to Northern Ireland could choose between meeting either the UK or the EU regulatory standards. The EU’s Brexit commissioner described such terms as “illegal”, and justified the action as a response to the UK’s “unwillingness to engage in meaningful discussion since February”. The four new challenges come on top of three other cases already underway, all of which will come before the European Court of Justice.
Charles Bronson, “Britain’s most notorious prisoner”, is the first person to formally ask for a public Parole Board hearing following rule changes that came into force on Thursday. In deciding whether to grant a public hearing, the board’s chairman will take into account the victims’ wishes, the risk of trauma, the vulnerability of the prisoner, and whether any witness evidence would be affected. The reform followed a case in 2020 in which Bronson successfully argued that Ministry of Justice regulations preventing public hearings breached his right to a fair trial. While the normal position remains that hearings will be private, the new rules allow for prisoners to request publicity, and Bronson’s hearing is expected to be held publicly late this year or early 2023.
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