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Court: Court of Appeal (Civil Division)

Government’s policy to not include an ‘unspecified gender’ option on passports found to be lawful

R (Elan- Cave) v SSHD [2020] EWCA Civ 363

This case is an appeal against a dismissal of a previous claim for judicial review. The Appellant submits that the refusal of the Government to allow the Appellant to apply for or be issued with a passport with an “X” marker in the gender field, indicating gender “unspecified”, is unlawful.

Held: appeal dismissed. The current policy of HMPO not to permit the Appellant to apply for and be issued with a passport with an “X” marker, does not at present amount to an unlawful breach of the Appellant’s Article 8 private life rights.

There is a respectable argument that we are approaching a time when the consensus within the Council of Europe’s Member States will be such that there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals if and when that time comes.  It follows that when the time comes, notwithstanding that there is a wide margin of appreciation as to how such a positive obligation is affected, the State will then have to take steps towards implementing that obligation.

Decision for Heathrow’s third runway found to be unlawful

R (Friends of the Earth) v Secretary of State for Transport and Ors [2020] EWCA Civ 214

The Court of Appeal have ruled on the proposed expansion of capacity at Heathrow Airport by the addition of a third runway under the policy set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (“the ANPS”). The ANPS designated by the then Secretary of State for Transport in June 2018, is a national policy statement prepared Planning Act 2008, s5(1). It was subject to a number of legal challenges brought by claims for judicial review in accordance with the procedure that Parliament has provided for such challenges to be brought, in Planning Act, s13(1).

Held: The Court of Appeal has ruled that the expansion plans for a third runway at Heathrow airport were unlawful as the government did not take into account the UK’s commitment to the Paris climate agreement or the full climate change impacts of the proposal. The ruling is the first ever to be based on the Paris agreement to tackle climate change and the Prime Minister could use this ruling to abandon the project altogether. The judges said that a third runway could be possible in the future, if the plans changed to conform with UK climate commitments.

Court of Appeal provides route map for judges to follow when considering whether to make a forced marriage protection order

Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190

The Court of Appeal provided a route map for judges to follow when considering whether to make a forced marriage protection order. The Court held that it had power to make orders in respect of adults who have capacity, including to impose a travel ban or to confiscate a passport. The Court gave guidance on how to accommodate rights under Article 8 of the ECHR, with potential breaches of Article 3.

Court of Appeal rules that doctors can stop providing life-support treatment to brain-damaged baby

Re M (Declaration of Death of Child) [2020] EWCA Civ 164

Following the difficult birth of the child, the child was placed on a ventilator in the neonatal intensive care unit. Doctors concluded that the child was clinically dead but the child has remained connected to the NICU ventilator, his heart has continued to beat and he has been fed. The child’s parents do not accept their baby is dead. The Trust seek permission to turn the ventilator off and disconnect it. The High Court had concluded that the application made by the Trust should be granted. The parents appealed. The issue for the court is whether M is dead, according to the DNC tests and relevant clinical guidance and if so whether the ventilator can be removed. Where a person is dead, the question of best interests is no longer relevant.

The Court of Appeal upheld the High Court’s judgment. It held that, as a matter of law, brain stem death is established as the legal criteria in the UK by the House of Lord’s decision in Bland and it was not open to the court to contemplate a different test. The factual and medical evidence before the court was sufficient to justify the findings that M was dead. Insofar as the parents argued that the case should be determined on a ‘best interests’ basis, the outcome of a best interests analysis could not produce any other outcome but approval for the removal of the ventilator.

Court of Appeal confirms that Universal Credit transitional scheme is discriminatory against the severely disabled

R (TP, AR & SXC) v Secretary of State for Work and Pensions [2020] EWCA Civ 37

The Master of the Rolls, and Singh and Rose LJJ today handed down judgment in the joined appeals of TP, AR & SXC v SSWP.

The Court unanimously dismissed the Secretary of State’s appeals against two High Court judgments (Lewis J in [2018] EWHC 1474 (Admin) and Swift J in [2019] EWHC 1116 (Admin)), upholding the findings of both High Court judges to the effect that the Universal Credit transitional provisions constitute discrimination under ECHR, art 14 (read with A1P1) in respect of “severely disabled persons” i.e. people who had previously been entitled to receive the Severe Disability Premium in Legacy Benefits.

TP, AR and SXC were all individuals who lost c £180 per month when they were moved onto Universal Credit, because of the absence of transitional protection for them despite their severe disabilities. After Lewis J’s judgment in which he found that the scheme discriminated against severely disabled people who moved local authorities and had to claim UC, the SSWP introduced new regulations which proposed to pay that cohort £80 in transitional payments (rather than the £180 they lost on moving to UC), but Swift J held that those regulations were also discriminatory under ECHR, Article 14 and quashed them.

The Court of Appeal upheld both decisions.