Round Up

The Weekly-Round up: Scottish referendums, cohabitation rights, and up-skirting crimes

22 August 2022 by Lucy Stock

In the news

• 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.

The Weekly Round-up: proposed reforms to judicial review, Truss’s promise to cut taxes, strip-searching of children by Metropolitan Police

9 August 2022 by Ruby Turok-Squire

A leaked report from the Ministry of Justice has suggested that Dominic Raab is considering reforms to judicial review that would effectively limit ministers’ accountability. This comes in the context of Suella Braverman’s suggestions that judicial reviews are being brought for ‘political ends’, and Lord Reed’s cautionary note regarding campaigning organisations bringing challenges to discrimination law, having lobbied unsuccessfully against such legislation whilst it was considered in Parliament (R (on the application of SC, CB and 8 children) (Appellants) v Secretary of State for Work and Pensions and others (Respondents) 2021, 162). 

Concerns continue that such reforms would not respect the separation of powers. For example, Jolyon Maugham QC recently commented that Raab ‘seems to want… a world in which government is above the law’. 

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. 

The Weekly Round-up: industrial action laws, prioritising menopause, and Crown Court cameras

3 August 2022 by Lucy Stock

In the news

• 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. 

The Weekly Round-up: Northern Ireland Protocol, public Parole Board hearings, and SLAPPs

25 July 2022 by Matthew Johnson

In the news

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.

The Weekly Round-up: Supreme Court to rule on indyref2, pandemic WhatsApps, and protection for pupils

22 July 2022 by Matthew Johnson

In the news

The UK Government has urged Supreme Court justices not to hear the Scottish government’s request for a ruling as to whether it has the power to hold ‘indyref2’ (a proposed second Scottish independence referendum). The request was referred to the UKSC by Lord Advocate Bain, who was not prepared to sign off on the independence referendum bill without a ruling which acknowledges the necessary power to do so. The UK Government has been expressive in its “clear view” that the bill would be beyond the competence of the Scottish Parliament, and that the matter is too “premature” for justices to rule on it. The case is currently in the hands of Lord Reed. If the Scottish Government wins the case, Nicola Sturgeon has indicated that the bill would be introduced promptly so as to allow the vote to take place before October 2023.

The Information Commissioner’s Office has reprimanded the Department of Health for the use of WhatsApp and private emails during the pandemic. The use of these cryptic platforms has meant that information regarding the handling of the pandemic has been lost. The issue was brought before the courts in April, where the claim was dismissed and the practice held to be lawful. This was because the use of such channels of communication did not in themselves breach the Freedom of Information or data protection rules, because sufficient controls were in place to allow the information to be retrieved upon request. The ICO investigation has discovered, however, that “such controls were lacking”. As a result, the Department of Health has been formally required to improve its communications operations so that “public authorities remain accountable to the people they serve”.

The Weekly Round-up: PM resigns, Criminal Bar strikes, and no diplomatic immunity for modern slavery

11 July 2022 by Matthew Johnson

In the news

The biggest story filling the headlines this week was that Boris Johnson has resigned as leader of the Conservative Party following over 50 resignations from government ministers. Though predominantly a political development, there are potential legal implications to the decision. This is because, until the leadership campaign announces his successor, current policies are stagnated under the ‘lame-duck government’. There is, therefore, doubt over the future of three particularly controversial policies: the Northern Ireland Protocol Bill; the Bill of Rights Bill; and the Rwanda scheme.

• Johnson’s plan to introduce the Northern Ireland Protocol Bill was an effort to tear up the agreements he signed that impose checks on goods going from Britain into Northern Ireland. Following his resignation, EU leaders have quickly called for the succeeding government to abandon the Bill. The DUP leader Sir Jeffrey Donaldson also reacted to the news by stating that ‘there can be no functioning devolved government in Stormont and the protocol’.
• The proposed Bill of Rights Bill is Dominic Raab’s effort to replace the Human Rights Act, with the vision to allow the UKSC to take little account of rulings by the ECtHR. While Raab still remains in office, there are question marks over whether the controversial Bill will survive the administrative overhaul that is soon to unfold. See the reference below to the latest episode of Law Pod UK, which discusses the Bill in detail.
• In a similar vein, Patel and Johnson’s Rwanda scheme, which has currently failed to get through the courts, is in jeopardy under a future government. In any event, however, the case is due to be argued again in the High Court on the 19^th of July.

The Weekly Round-up: the Bill of Rights, Roe v Wade and the Investigatory Powers Act 2016

27 June 2022 by Tabitha Hutchison

In the news: 

On Wednesday, a new Bill of Rights was introduced to Parliament. While the Government claims that the Bill ‘will strengthen traditional UK rights’ which are ‘under attack’ from ‘stifling political correctness’, critics say the Bill dilutes domestic human rights protection and seeks to diminish the powers of domestic courts. Key aspects of the Bill are as follows: 

• it gets rid of the interpretive obligation under s3 of the Human Rights Act 1998, with no analogous replacement; 
• it prevents UK courts from adopting new interpretations of ECHR rights that would require a public authority to comply with a positive obligation and limits their ability to enforce existing positive obligations;
• it introduces a permission stage requiring people to show they have suffered a significant disadvantage before their claim can go ahead;
• it prevents domestic courts from finding legislative provisions concerning deportation to be incompatible with the Article 8 right to respect for private and family life unless the provision would require the relevant person to be treated in a way that would occasion ‘harm’ so ‘extreme’ that it would ‘override the otherwise paramount public interest’ in removal from the UK; and 
• it requires courts, when deciding ‘incompatibility questions’, to treat Parliament as having ‘decided’ that the Act strikes an appropriate balance between the relevant competing factors.

The Bill’s detractors have suggested that, despite its stated aim to ‘bring rights home’, the Bill will in fact result in the UK being in breach of its obligations under the ECHR more often, making it more vulnerable to adverse rulings by the ECtHR. 

On Friday, the US Supreme Court overturned Roe v Wade, holding that there is no longer a federal constitutional right to an abortion. Going forward, abortion rights will be determined by states, unless Congress acts. President Biden commented: “The Court has done what it has never done before: expressly take away a constitutional right that is so fundamental to so many Americans that had already been recognized.”

The Weekly Round-up: Rwanda flight, Julian Assange, and asylum tagging

20 June 2022 by Matthew Johnson

In the news

The first flight attempting to deport asylum seekers to Rwanda has been cancelled at the last minute following a ECtHR ruling that granted an ‘urgent interim measure’ to stop the deportation. This is in contradiction to the UK High Court and Court of Appeal, which found that, while there should be a full review of the policy, the Home Secretary would not be acting unlawfully by deporting asylum seekers in the meantime. The UK Supreme Court refused permission to appeal. The ECtHR stated that the decision was influenced by the UN’s refugee agency, who raised concerns that those being deported may not receive a fair hearing and could be left in unsafe conditions.

The Home Secretary has approved the extradition of Julian Assange to the US. Assange has been charged under the US Espionage Act for publishing leaked documents about the Afghanistan and Iraq wars on his whistle-blowing platform ‘WikiLeaks’ and faces up to 175 years in jail if found guilty. Assange has been in prison since he was removed from the Ecuadorian embassy in London in 2019 after his asylum status was removed. His extradition had previously been blocked for concerns regarding his mental health, but the current decision marks the most important stage in his legal battle. Assange has 14 days to appeal the decision, but his brother expressed that if this is not successful the case will be brought before the ECtHR.

The Weekly Round-up: social care spending, Stafford statements and Ukraine’s legal battle

10 June 2022 by Lucy Stock

In the news:

• The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.

• In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.

• An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.

The Weekly Round-up: children’s social care, traveller discrimination and Ukraine war crime verdicts

31 May 2022 by Lucy Stock

In the news:

• On Monday 23, the Russian tank commander Vadim Shishimarin was sentenced to life in prison by a court in Kyviv. He previously pleaded guilty to killing Oleksandr Shelypov, 62. Shishmarin’s trial has been closely watched by investigators collecting evidence of possible war crimes to bring before the international Criminal Court (ICC) in the Hague. International law experts will also scrutinise the verdict of the 21-year-old tank commander; a key question arose from the proceedings about how much scope the Kyviv court has now left itself for sentencing Russians for more heinous or numerous offences.

• The Independent Review of Children’s Social Care, led by Josh MacAlister, was published on Monday 23 May. The report included more than 80 recommendations and suggested a windfall tax on the 15 largest children’s homes and fostering providers. Projections claim that by 2032 there could be approaching 100,000 children in care costing £15 billion per year. An investigation by The Times has demonstrated that many inexperienced or first-time owners of children’s home have opened residences in order to charge as much as £1,000 a day. MacAlister has also encouraged the government to consider adding those with care experience to the Equality Act.

• The Gender Recognition Reform (Scotland) Bill has caused controversy in recent years, with opponents raising concerns about how it could affect the rights of women and girls. On Tuesday, Ellie Gomersall – the first trans person to be elected as the president of NUS Scotland – and Malcom Dingwall-Smith, Sportscotland’s strategic partnerships manager, both gave evidence to the qualities, human rights and civil justice committee concerning its effectiveness. The former, asserted the limited powers of the bill to reduce crime in single-sex spaces, and the latter highlighted that the bill would have no impact on a section of the 2010 Act that allows trans people to be barred from the sports of their acquired gender if the governing body deems it interferes with ‘fair competition or the safety of competitors’.

• On Thursday, Britain’s equality regulator announced that it has launched a formal investigation into Pontins holiday parks due to continued concerns about discrimination against Gypsies and Travellers. Last year, Pontins owner, Britannia Jinky Jersey Limited, entered into a 12-month contract with the Equality and Human Rights Commission (EHRC), following allegations that the company operated a discriminatory booking policy. On the 18 February the EHRC terminated the contract, judging that Pontins had not taken the required steps to prevent unlawful race discrimination or honour its commitments under the agreements. The EHRC has now launched a formal investigation that will consider whether Pontins has committed unlawful acts under the Equality Act 2010.

In other news:

The Weekly Round-up: stop-and-search powers, human trafficking and MI5 informants

23 May 2022 by Tabitha Hutchison

In the news:

• On 16 May, the Home Secretary announced in a letter to police forces that she is permanently lifting restrictions on the use of stop-and-search powers under Section 60 of the Criminal Justice and Public Order Act, which give police officers the right to search people without reasonable grounds in an area when they expect serious violence, and to look for weapons before they can be used, or those used in a recent attack. The new changes will lengthen the periods for which the powers can be in force and by which they can be extended, and a lower rank of officer will be able to authorise their deployment. In addition, the officer will now only need to anticipate that serious violence “may” occur, not that it “will” occur. Concerns have consistently been raised around the powers on the basis that they disproportionately affect black and minority ethnic communities. For instance, in the year to March 2021, black people were seven times and Asian people two-and-a-half times more likely to be stopped and searched than white people.
• In the first Ukraine war crimes trial since the invasion by Russia, a Russian tank commander has pleaded guilty to shooting dead a 62-year-old civilian. Even in light of the guilty plea, for the suspect to be convicted and sentenced, the three judges hearing the case will have to reach a unanimous verdict. The suspect faces life in jail.

The Weekly Round-up: Queen’s Speech, war trials in Ukraine, and pre-recorded cross-examinations

17 May 2022 by Matthew Johnson

In the news:

The Queen’s Speech was delivered by Prince Charles on Tuesday, setting out the legislative agenda for the year to come. The controversial Bill of Rights was announced, which would overhaul the Human Rights Act with a vision to ‘restore the balance of power between the legislature and the courts.’ However, more than 50 groups including Amnesty, Liberty, and the British Institute for Human Rights have written to Boris Johnson warning of the ‘significant implications’ of repealing the Act. Other bills in the speech include: a Public Orders Bill (designed to target environmental protesters); a Brexit Freedoms Bill (ending the supremacy of EU law by making repeal easier); and a National Security Bill (tightening up official secrets law).

The first legal action against the UK-Rwanda asylum plan has been launched, based on an Iranian asylum seeker who claims he would face extreme hardship if sent to Rwanda. The challenge is that the scheme breaches international law, the UN refugee convention, and data protection laws. The legal action comes as the UN refugee agency expressed serious concerns that the policy will be taken up throughout Europe.

The Weekly Round-up: Roe v Wade, Bell v Tavistock and guidance on suitable accommodation and misuse of private information

9 May 2022 by Tabitha Hutchison

In the news:

• On 2 May, a draft majority opinion of the Supreme Court of the United States was leaked, suggesting that the court has voted to strike down the landmark decision of Roe v Wade and sparking widespread anger. In the opinion, Justice Samuel Alito states that “Roe was egregiously wrong from the start” and that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This is the first time in history that a draft decision has been disclosed publicly while a case was still pending. On 3 May, Chief Justice John Roberts confirmed the authenticity of the decision, which would remove federal constitutional protection of abortion rights and leave the decision in the hands of each state.
• Under a new pilot scheme, victims could have the right to attend full Parole Board hearings from as early as next month. The Parole Board will also be required to take into account victims’ submissions and victims will be allowed to ask questions. Currently, victims can ask to read a statement in person but are not allowed to hear the rest of the evidence. 
• Police are investigating a gathering attended by Sir Keir Starmer and Angela Rayner in April 2021. Having initially decided to take no action, Durham Constabulary has now begun conducting an investigation into potential breaches of Covid-19 regulations in light of “significant new information”. Durham Constabulary had previously stated that it had a policy against retrospective Covid fines, after allegations of lockdown breaches by Dominic Cummings.
• On 4 May, foreign secretary Liz Truss announced in a press release that there will be a ban on services exports to Russia, covering services such as accountancy, consultancy and PR advice. Lawyers, however, will still be able to service Russian clients.

The Weekly Round-Up: unlawful care home policies, new legislation and voter ID

2 May 2022 by Matthew Johnson

In the news:

Last week saw an influx of legislation approved before Parliament’s Thursday end-of-session deadline. Some include:

• The Nationality and Borders Act. Three of the most controversial provisions are: to allow asylum claims to be handled at overseas facilities (offshoring asylum); criminalising those who knowingly arrive in the UK illegally; and treating asylum seekers differently depending on how they enter the UK.
• The Police, Crime, Sentencing and Courts Act. Another turbulent journey to Royal Assent, this grants police extra powers to quash disruptive demonstrations. This is done by increasing restrictions on protests where ‘noise’ could cause ‘serious disruption’, and by criminalising activity which causes ‘serious distress, serious annoyance or serious inconvenience’ without ‘reasonable excuse’.
• The Judicial Review and Courts Act. This was passed after a last-minute amendment proposed by the Law Society to remove a statutory presumption. The presumption would have dictated to judges what remedies they could award in place of judicial discretion.
• The Elections Act. This requires voters to present photo ID at polling stations, justified by the government as making the electoral system ‘secure, transparent and fair for generations to come’. However, there is a fear this could see many would-be voters turned away.

An independent review by Jonathan Hall QC has concluded that terrorists in prison ‘enjoy high status’ within a culture of fear and violence across English and Welsh jails. The review details examples of ‘Islamic gang-like activity’, exacerbated by the 27% cut in staff between 2010 and 2017. A separate report by Hall also discovered that the Government does not keep a record, ‘officially or unofficially’, of the number of prosecuted terrorists returning to the UK from Syria.

In other news:

• Insulate Britain have followed up on their threats last week to disrupt hearings by glueing themselves to magistrates court furniture. Dr Diana Warner superglued her hand to the glass dock and ignored court instructions, instead paying tribute to the activist who died after setting himself on fire outside the US Supreme Court.

• Victims of sexual offences are subject to the longest waiting period on record, with an average of 9 months for cases to go through Crown Courts. Data also demonstrates that the speed of cases depends on their location, with cases in Leicester taking the longest to complete (on average 15 months).

The Weekly Round-up: Rwanda, Insulate Britain and automated decision-making

25 April 2022 by William Craig Cohen

The government has come in for a certain amount of criticism about its deal to allow migrants who arrive in the UK illegally to be sent to Rwanda for assessment of their asylum applications.

Priti Patel’s Rwanda asylum plan has been challenged in Parliament by Theresa May, who questions its ‘legality, practicality, and efficacy’, as well as its potential for increasing the trafficking of women and children. The legality of the scheme, which proposes to send those with rejected UK asylum claims to Rwanda, has been defended by Patel, who points to immigration rules introduced last year. However, the backlash has now infiltrated the Home Office itself, with staff threatening to go on strike over concerns of illegality and racism. This prompted the permanent secretary, Matthew Rycroft, to reassure the civil service that implementing it would not be ‘racist or illegal’. Rycroft himself, however, doubts whether the plan would provide taxpayer value for money, and has refused to sign it off.