Weekly Notes: legal news from ICLR, 21 December 2022
In this last roundup of the legal year we wish all our readers a Festive Yuletide and Prosperous New Year for 2023. We include news of immigration law, war crimes, and media regulation, none of it very cheerful unfortunately; plus the latest case law and commentary.
Rwanda scheme lawful
The government has defeated a claim for judicial review of its policy of removing asylum claimants from the UK to Rwanda for determination of their asylum applications in accordance with Rwandan law. The policy is based on a £120m asylum partnership agreement with the Rwandan government which was concluded by former home secretary Priti Patel MP in April 2022, and has been stoutly defended by her successor, Suella Braverman QC MP. However, it is widely opposed on humanitarian grounds and has given rise to a good deal of controversy, and no flight removing asylum claimants to the East African country has actually taken off yet.
An earlier attempt to take off was prevented by a last-minute ruling in the form of an “interim measure” from the European Court of Human Rights, preventing any flights under the scheme until the UK’s domestic courts could determine if it was legal. Dismissing the claim of a number of asylum seekers and organisations, the Divisional Court in R (AAA) v Secretary of State for the Home Department (Rwanda)  EWHC 3230 (Admin) has effectively done just that. Summarising its decision, the court said:
“The court has concluded that, it is lawful for the government to make arrangements for relocating asylum seekers to Rwanda and for their asylum claims to be determined in Rwanda rather than in the United Kingdom. On the evidence before this court, the government has made arrangements with the government of Rwanda which are intended to ensure that the asylum claims of people relocated to Rwanda are properly determined in Rwanda. In those circumstances, the relocation of asylum seekers to Rwanda is consistent with the Refugee Convention and with the statutory and other legal obligations on the government including the obligations imposed by the Human Rights Act 1998.”
However, the court held that the Home Secretary must look at each applicant’s individual circumstances before deciding whether or not to send them to Rwanda for processing of their asylum claim, and consider
“if there is anything about each person’s particular circumstances which means that his asylum claim should be determined in the United Kingdom or whether there are other reasons why he should not be relocated to Rwanda.”
Since that hadn’t been done in the eight individual claimants’ cases, their applications would need to be reconsidered by the Home Office before they could be sent to Rwanda.
The decision has provoked a lot of commentary. Explaining the decision and its background on the Free Movement blog in High court rules Rwanda plan is lawful, immigration expert Colin Yeo points out that
“an appeal by the claimants is inevitable, so the High Court judgment is not the last word. The Court of Appeal is likely to look at the case, as is the Supreme Court. The timescale for final resolution of the case is therefore unknown.”
For more on this case, see:
- Jonathan Metzer, UK Human Rights Blog, Divisional Court upholds Government’s Rwanda policy — an extended look
- Matthew Scott, BarristerBlogger, The breathtaking insouciance of the Rwanda judgment
- Emma Guy, Each Other, Rwanda Policy Ruled Lawful But ‘Awful’
The Rwanda policy is emblematic of the stress felt by the government over its failure to prevent the influx of a large number of migrants crossing the English channel in unsuitable small boats, many of whom require to be rescued by emergency services and most of whom end up claiming asylum in the UK despite having travelled across other countries in which they could arguably have claimed asylum instead. In particular, the government seeks to deter the operation of people-smugglers who exploit the migrants for profit without necessarily caring much about their safety. However, opponents of the government’s draconian solutions to the problem point out that it has been exacerbated by the closure or blocking of alternative, safer routes to arrive in order to claim asylum.
The pressures of public opinion, stoked by the tabloid media, and political agitation from some quarters, have led some members of the UK government to call for a reconsideration of international obligations under, for example, the European Convention on Human Rights (ECHR) (as noted in last week’s roundup), but the ultimate obligation towards asylum seekers remains that under the Convention Relating to the Status of Refugees (1951) which is a United Nations instrument, operating independently of the ECHR.
Some members recently supported a Bill, called The Asylum Seekers (Return to Safe Countries) Bill, that would prevent asylum seekers applying if they could have remained in a safe country on the way, in breach of the UK’s obligations under the Refugee Convention. The Bill was defeated, but as David Allen Green explains on his Law and Policy Blog, it is an ominous sign that it was even supported to the extent it was. See: Today 71 Members of Parliament supported a Bill that would have allowed the government to break international law on asylum seekers
War crimes — Ukraine
The Attorney General Victoria Prentis KC MP has launched a training programme for Ukrainian judges set to conduct trials for war crimes following the illegal invasion of Ukraine by Russian forces earlier this year. The move is described as part of UK efforts to secure justice for the country’s citizens.
The announcement last week reports that more than 90 judges will undergo the UK funded sessions, which are being held in the region under the supervision of Sir Howard Morrison KC, a former Judge at the International Criminal Court. Sir Howard was appointed by the former Attorney General in March to act as an independent advisor to the Prosecutor General of Ukraine, now Andriy Kostin, as part of a wider package of support for the war-torn country.
In May, the UK, the US and EU, established the Atrocity Crimes Advisory Group to directly support the War Crimes Units of the Office of the Prosecutor General of Ukraine — to assist in streamlining coordination, avoiding duplication, and providing advice and practical assistance.
The Attorney General pointed out that 50,000 cases had been recorded so far. The training is just one part of a £2.5m justice and accountability package of UK assistance directly to Ukraine. The package also includes the deployment of Mobile Justice Teams to the scene of potential war crimes, forensic evidence gathering and support from UK experts in sexual violence in conflict.
The UK is by no means alone in rendering this assistance. In October this year, the International Bar Association (IBA) signed a Memorandum of Understanding (MOU) with the Prosecutor General’s Office of Ukraine on cooperation to ensure accountability for war crimes and other international crimes including the crime of aggression, genocide and conflict-related sexual violence.
War crimes — Afghanistan
The Ministry of Defence has announced an independent statutory inquiry to investigate and report on alleged unlawful activity by British Armed Forces during deliberate detention operations (DDO) in Afghanistan in the period mid-2010 to mid-2013, and the adequacy of subsequent investigations into such allegations.
The inquiry will be chaired by Lord Justice Sir Charles Haddon-Cave, who has previous experience in defence having been appointed by the Secretary of State for Defence to conduct The Nimrod Review; an independent review into broader issues surrounding the loss of the RAF Nimrod MR2 aircraft XV230 in Afghanistan in 2006.
The inquiry has been established under the Inquiries Act 2005 and will have full powers to obtain evidence. The terms of reference of the inquiry include investigating the Ministry of Defence’s initial response to concerns, whether any persons were killed unlawfully, and what lessons might be learned.
For more detailed commentary on these developments, see
- Joshua Rozenberg, A Lawyer Writes, Senior judge to investigate SAS killings
- David Allen Green, Law and Policy Blog, Why the inquiry announced today into potential war crimes is interesting — very interesting and How the campaign to stop the United Kingdom government from making it more difficult to prosecute war crimes was won
Corrections in printed media
New guidance has been issued by IPSO, the collective self-regulator of the many British newspapers, about the prominence of corrections, clarifications and adjudications in printed media. Key points are
- The Editors’ Code places a clear requirement on editors to correct issues promptly and with sufficient prominence.
- IPSO will take a number of factors into account when deciding how prominently remedies should be published, including the seriousness and prominence of the breach.
- An established clarifications and corrections column signifies a commitment to accuracy.
- Editors can contact IPSO if they would like advice on how to ensure that they publish remedies with sufficient prominence.
This week the most notorious matter of complaint to IPSO, which stands for the Independent Press Standards Organisation, has been some hateful and disgraceful remarks directed to the Duchess of Sussex by the well known motoring correspondent and farmer Jeremy Clarkson, in his column in The Sun on Friday, 16 December 2022. According to IPSO’s website, by 5pm on 20 December 2022 it had received more than 20,800 complaints about what it calls an “opinion piece” written by Jeremy Clarkson and published by The Sun. This is apparently the largest number of complaints anyone has ever made about anything to the regulator.
The piece, which we needn’t itemise, could be described as more inciteful than insightful. It has since been removed from the Sun’s website, apparently at the request of Clarkson himself, who issued a statement on Twitter that could not by any stretch of the imagination be construed as a genuine apology: that may be something for executives at The Sun to consider. The Guardian (not regulated by IPSO) reports that “More than 60 cross-party MPs have written to the Sun’s editor, Victoria Newton, to demand an apology and ‘action taken’ against Clarkson for the column”.
Meanwhile IPSO says “We will follow our usual processes to examine the complaints we have received. This will take longer than usual because of the volume of complaints.” This last point seems a little disingenuous, since it is unlikely that IPSO will be crafting an individual response to each and every complaint, and since they all relate to the same thing, it will simply be a matter of circulating a standard and probably rather disappointing response. No one is holding their breath: by reputation IPSO’s bite is some distance short of its bark.
Is it ever okay for journalists to lie to get a story? That’s the question Andrea Carson and Denis Muller set out to answer in a recent post on Inforrm’s blog. Why now? Well, perhaps because they’ve got a book out.
“In our new book, Undercover Reporting, Deception and Betrayal in Journalism, we ask whether deception is ever an acceptable method for journalists to use. In other words, is it ever okay to lie to a target to get a story?
We find it can be ethically justifiable under very specific conditions. We offer a six-point checklist for journalists (and the audience) to test if deception and betrayal are warranted.”
Other recent items
The ‘Absent Word’ Canon and Asymmetrical Sovereignty
Mohamed Moussa on the UK Constitutional Law Association blog discusses what he describes as “the questionable nature” of the Supreme Court’s “textual fidelity” — as demonstrated in recent decisions such as reference on the Scottish Independence Referendum Bill — and highlights that it “runs counter to foundational canons of interpretation”.
The Online Safety Bill and the EU Digital Services Act: key overlaps and differences
Sophie Hollander of Mishcon de Reya compares the effect of the UK and EU legislative attempts to regulate digital services and user generated content, highlighting where they overlap and the key differences between the two regimes.
“While the OSB and DSA have similar aims — with many businesses falling under the scope of both regimes — the pieces of legislation do vary significantly, both in scope and the type of obligations imposed.”
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CONTEMPT OF COURT — Committal order — Civil contempt: Wright v Rogers, 16 Dec 2022  EWCA Civ 1658;  WLR(D) 515, CA
COSTS — Order for costs — Qualified one-way costs shifting: University Hospitals of Derby & Burton NHS Foundation Trust v Harrison, 16 Dec 2022  EWCA Civ 1660;  WLR(D) 508, CA
EMPLOYMENT — Contract of employment — Agency worker: CM v TimePartner Personalmanagement GmbH, 15 Dec 2022 (Case C-311/21); EU:C:2022:983;  WLR(D) 506, ECJ
NATIONALITY — British citizenship — Acquisition: R (Murugason) v Secretary of State for the Home Department, 14 Dec 2022  EWHC 3160 (Admin);  WLR(D) 511, KBD
PLANNING — Planning permission — Conditions: Swindon Borough Council v Secretary of State for Housing, Communities and Local Government (DB Symmetry Ltd v Swindon Borough Council), 14 Dec 2022  UKSC 33;  WLR(D) 512, SC(E)
PRACTICE — Contempt of court — Anti-Social Behaviour Injunction: Wigan Borough Council v Lovett (Network Homes Ltd v Smith, Optivo v Hopkins), 16 Dec 2022  EWCA Civ 1631;  WLR(D) 507, CA
REVENUE — Value added tax — Exemptions: Mainpay Ltd v Revenue and Customs Comrs, 09 Dec 2022  EWCA Civ 1620;  WLR(D) 493, CA
TORT — Cause of action — Malicious prosecution: Stuart v Attorney General of Trinidad and Tobago, 15 Dec 2022  UKPC 53;  WLR(D) 514, PC
TRUST OF LAND — Family home — Joint tenants: Hudson v Hathaway, 14 Dec 2022  EWCA Civ 1648;  WLR(D) 513, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Out-Law: Court backs cryptocurrency exchange bid to trace alleged fraudsters: LMN v Bitflyer Holdings Inc  EWHC 2954 (Comm), KBD
UK Human Rights Blog: Protest and proportionality in the Supreme Court: In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill  UKSC 32;  WLR(D) 482, SC(NI)
RPC Perspectives: Court of Appeal finds that entrepreneurs’ relief was available: Quentin Skinner 2005 Settlement L v Revenue and Customs Comrs  EWCA Civ 1222;  STC 1795;  WLR(D) 376, CA
RPC Perspectives: HMRC left in poor spirits following severe rebuke from the Tribunal: Sintra Global Inc v Revenue & Customs  UKFTT 365 (TC), FTT (TC)
Free Movement: High court rules Rwanda plan is lawful: AAA v Secretary of State for the Home Department (Rwanda)  EWHC 3230 (Admin), KBD (Admin)
Law & Religion UK: Article 10 ECHR and inciting religious hatred: Zemmour v France (Appn no 63539/19);  ECHR 1130, ECtHR
Law & Religion UK: Defaming religious beliefs: Tonchev v Bulgaria (Appn no 56862/15);  ECHR 1072, ECtHR
Local Government Lawyer: The planning definition of ‘Gypsies and Travellers’: Smith v Secretary of State for Housing, Communities and Local Government  EWCA Civ 1391;  WLR(D) 422, CA
Panopticon: Erasure requests: accuracy and images: TU, RE v Google LLC (Case C-460/20) EU:C:2022:962;  EUECJ C-460/20, ECJ
It only remains for us to wish all our readers a very
Happy New Year!
Thanks for reading, and thanks for all your toots, tweets, posts and links. Take care now.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.