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Court: Administrative Court

Not for court to rule on whether Parliament should include Sikh ethnic group’ tick box on Census

R (Gill on behalf of the Sikh Federation) v The Cabinet Office [2019] EWHC 3407 (Admin)

The Sikh Federation has campaigned for the inclusion of a Sikh ethnic group tick box response in the census, in the hope that funding and public services will then be more effectively focused on meeting the needs of the Sikh community.  In this case, they applied for judicial review of “the contemplated exercise of Her Majesty’s discretion to direct a census based on an Order in Council, which does not include a Sikh ethnic tick box”.

Held: The claim is dismissed on the ground that it is premature, and in breach of parliamentary privilege and the constitutional convention of the separation of powers. If the Court were to rule that it would be unlawful for Her Majesty to not include a Sikh ethnic tick box, it would be a clear interference with the Queen in Council’s law-making function, contrary to the constitutional convention of the separation of powers. 

There is a fundamental constitutional distinction between the Court reviewing the lawfulness of an Order in Council once it has been made, and the Court making a declaration which curtails the Queen in Council’s exercise of discretion when making law. This is not an exceptional case which justifies any departure from the general rule that this Court will respect the separation of powers and so not interfere with Parliamentary proceedings.

Home Office’s approach to victims of trafficking found to be unlawful

JP and BS v Secretary of State for the Home Department [2019] EWHC 3346 (Admin)

In this case the High Court decided that the Home Office’s approach to protecting victims of trafficking is unlawful.

The test case was brought by two victims of trafficking, who challenged the lawfulness of the Secretary of State’s policy that, in the case of a victim of trafficking who is also making an application for asylum, the Secretary of State will not determine the victim’s application for a residence permit under Article 14(1) of ECAT before making a decision on the asylum application.

The court held that the Defendant breached the rights the claimants under Article 14 (read with Articles 4, 8 and A1P1) of the ECHR, contrary Human Rights Act 1998, s6.

Under PACE, journalists can only be ordered to produce immediately admissible trial evidence

R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin)

DE, a former Newcastle United footballer, was interviewed live-to-air on the Victoria Derbyshire show about sexual abuse by a club coach in the 1990s. A BBC researcher had made a note of a mock interview with DE, recording answers giving his account of the abuse.

DE was to be a prosecution witness at the subsequent Crown Court trial of the coach. After the trial commenced the police obtained a production order for the note from the trial judge under PACE, Schedule 1. The CPS wanted to disclose it to the defence for possible use to attack DE’s credibility at trial, if (depending on its contents) it undermined/contradicted his evidence for the prosecution.

Held: The Divisional Court upheld the judge’s rulings that the police application was “for the purposes of a criminal investigation” under PACE, s.9(1), and that the note was likely to be of substantial value to the investigation. But another PACE, Schedule 1 para 2, access condition requirement was not made out because it was not open to the judge to conclude that the note was “likely to be admissible evidence”. The DC held that this access condition requires that the material the journalist is ordered to produce must be immediately admissible per se, whereas the admissibility of this document was conditional.   

‘Breach of human rights for detainee who was subjected to constant observation for 75 days’

IS (Bangladesh) v SSHD [2019] EWHC 2700 (Admin)

The claimant challenged the legality of his detention for a period of 28 months pending his deportation. He says that it was unlawful to detain him for that period of time having regard to his young age (he was 18 when first detained), his mental health, history of self-harm and risk of suicide, and the conditions of his incarceration. He claims a violation of his rights under the ECHR, art 3, 5 and 8.

Held: The detention of the Claimant between 28 July 2016 and 29 June 2018 was lawful and did not involve a breach of his Convention rights. The detention of the Claimant between 29 June 2018 and 30 November 2018 was unlawful and amounted to a breach of his right to liberty under Article 5 ECHR. His treatment of being subjected to constant observation for a period of 75 days whilst unlawfully detained amounts to a separate breach of the right to respect for private life under Article 8 ECHR. There was no breach of the prohibition on inhuman or degrading treatment under Article 3 ECHR.

Court holds biological father’s inability to be named on surrogate child’s birth certificate to be a legitimate interference with his private life

R (H) (by her litigation friend B) v Secretary of State for Health and Social Care [2019] EWHC 2095 (Admin)

This case concerns whether the inability of A (the Claimant’s genetic father) to be named on the Claimant’s birth certificate is a breach of the Claimant’s article 8 and 14 ECHR rights. The Claimant applies for a declaration of incompatibility under s.4 of the Human Rights Act 1998 in respect of sections 35 and 38 of the Human Fertilisation and Embryology Act (HFEA) 2008 and for a declaration that those sections breach the Claimant’s human rights.

A and B entered into a surrogacy arrangement with C and D, a married couple. A is the biological father and C is the biological mother. During the course of C’s pregnancy, there was a breakdown in relations between the parties.

C and D registered themselves on H’s birth certificate, however by an Order made on 13 December 2016, A and B, as well as C and D, were given parental responsibility for the Claimant. The child currently resides with A and B but has regular contact throughout the year with C and D.

Held: There is no incompatibility and consequentially no remedy. It is accepted that H’s private life is interfered with by the operation of s.35 and 38, but not her family life. H lives with A and B, and they have day to day responsibility for her life. Her family life with them is fully protected by the terms of the Child Arrangements Order, and the impugned provisions have no real impact on her family life.

This interference, however meets a legitimate aim, and is necessary. The regulation of surrogacy is necessary for three reasons:

in order to provide legal certainty so that the child, and anyone else, can know who that child’s legal parents are;
to meet the objective that gamete donors should not be legal parents;
to ensure that surrogacy arrangements are not enforceable in domestic law.

Furthermore, the interference is relatively limited as A and B can explain H’s genetic heritage, and they have a day to day parental responsibility for her.