Tag: UK Supreme Court

Supreme court rules Rwanda plan unlawful: a legal expert explains the judgment, and what happens next

Posted on by foluke.adebisi

by Professor Devyani Prabhat, the Law School, University of Bristol

The UK supreme court has unanimously ruled that the government’s plan to send asylum seekers to Rwanda is unlawful. Upholding an earlier decision by the court of appeal, the supreme court found that asylum seekers sent to Rwanda may be at risk of refoulement – being sent back to a country where they may be persecuted, tortured or killed. The courts cited extensive evidence from the UN refugee agency (UNHCR) that Rwanda does not respect the principle of non-refoulement – a legal obligation. The UNHCR’s evidence questioned the ability of Rwandan authorities to fairly assess asylum claims. It also raised concerns about human rights violations by Rwandan authorities, including not respecting non-refoulement with other asylum seekers. (more…)

“Tailoring” the Close Connection Test for Sexual Abuse Victims: Vicarious Liability in the Court of Appeal

Posted on by foluke.adebisi

by Paula Giliker, Professor of Comparative Law, University of Bristol Law School.

The doctrine of vicarious liability renders a defendant strictly liable for the torts of another (X) where:

  • Stage One: the defendant is in a relationship with X which makes it fair and just for the law to make the defendant pay for the tortious conduct of X; and
  • Stage Two: there is a close connection between this relationship and X’s wrongdoing.

(more…)

A Paean to Judicial (Self) Restraint: The UK Supreme Court Shamima Begum Decision

Posted on by foluke.adebisi

by Devyani Prabhat, Professor, Law School, University of Bristol

The Supreme Court has refused permission for Shamima Begum, who left the UK as a 15-year-old British schoolgirl for Syria in 2015, to come back to the UK so that she can effectively challenge the removal of her citizenship (decision dated 26th February 2021; [2021] UKSC 7). Begum was found in a camp in Syria two years back. The Home Secretary removed her British citizenship soon thereafter, arguing that she has eligibility for Bangladeshi citizenship, and would not be left stateless without British citizenship. (more…)

Does X mark the spot?

Posted on by lee.mcconnell

UK Supreme Court clarifies when local authorities have a duty of care to protect victims from harm when carrying out their statutory functions

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)

The question of local authority liability in negligence for failing to intervene to protect vulnerable parties from harm has been discussed by the highest UK courts in recent years.  Local authorities have statutory powers to intervene to assist citizens in need.  When, then, should they be liable for failing to intervene to protect citizens from harm from third parties?  In recent years, the Supreme Court in two cases relating to the police sought to move away from policy-based analysis (seen famously in the controversial decision in X (Minors) v Bedfordshire CC [1995] 2 A.C. 633) to one based on traditional common law approaches to omissions and precedent: see Michael v Chief Constable of South Wales [2015] UKSC 2 and Robinson v Chief Constable of West Yorkshire [2018] UKSC 4.  These cases draw an important distinction between a defendant who harms the claimant and one who fails to stop a third party harming the claimant. The second situation will not generally give rise to liability unless:

  • A relationship exists between the parties in which one party assumes responsibility for the welfare of another; or
  • The authority can be said to have created the source of danger or
  • The third party who has harmed the claimant was under the defendant’s supervision or control.

The latest Supreme Court decision in Poole BC v GN [2019] UKSC 25, delivered on 6 June 2019, marks an attempt by the Court to provide clearer guidance to litigants, while trying to reconcile somewhat contradictory earlier case-law.  It is a rather complex decision – although given in a single judgment – and an important one.  The purpose of this blog, therefore, is to explain the Court’s reasoning and give some indication of its implications for future case-law development. (more…)

Will Judicial Deference to Medical Opinion Undermine the Patient-Focused Standard of Informed Consent to Medical Treatment?

Posted on by legalresearch

By Mrs Louise Austin, Associate Teacher in Medical Law and PhD Candidate in Law (1+3 ESRC) (University of Bristol Law School).

© Rookuzz..

Following the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board, which moved away from a model of medical paternalism and established a model of patient autonomy for informed consent to medical treatment, the High Court has recently had the opportunity to apply the new test in Grimstone v Epsom and St Helier University Hospitals NHS Trust. This blog post provides a summary of my case commentary in the Medical Law Review exploring this decision and its implications, which is now available as ‘Grimstone v Epsom and St Helier University Hospitals NHS Trust: (It’s Not) Hip To Be Square’. (more…)

Abortion rights in Northern Ireland

Posted on by legalresearch

A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.

By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).

The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties.  On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.

The case

In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].

A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. (more…)

The dualist system of the English Constitution and the Victorian acquis

Posted on by legalresearch

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).*

The Supreme Court in Miller set out the model that ‘the dualist system is a necessary corollary of Parliamentary sovereignty’ (para 57), or in the words of Campbell McLachlan in his admirable Foreign Relations Law, cited by the Supreme Court:

If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged (para 5.20).

As the Court said, this passage ‘neatly summarises’ the position: but, beyond the neatness of summarization, does it correctly capture the constitutional position? (more…)

The UK’s spousal and family visa regime: some reflections after the Supreme Court judgment in the MM case

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By Prof Christopher Bertram, Professor in Social and Political Philosophy (University of Bristol School of Arts) & Co-Director of the Bristol Institute for Migration and Mobility Studies;
Dr Devyani Prabhat, Lecturer in Law (University of Bristol Law School) and Dr Helena Wray, Associate Professor (University of Exeter Law School).

For thousands of British citizens and residents separated from loved ones by the onerous financial requirements in the immigration rules, the headlines after the Supreme Court decision on 22nd February 2017 in the case of MM v SSHD were disappointing.[1]

The case concerned the entry criteria for a non-EEA national to join their British citizen (or long term resident) spouse or partner (“the sponsor”) in the United Kingdom. These include a requirement that the sponsor has an income of at least £18,600 per annum or substantial savings, with additional sums needed for dependent non-citizen children (“the minimum income requirement” or MIR).

As the press reported, the Supreme Court did not find the MIR incompatible with article 8 of the European Convention on Human Rights (the right to respect for private and family life) and therefore unlawful. However, hidden behind the government’s reported “victory” is a more complex legal and political picture which offers hope to at least some of those affected. (more…)

Law and Politics in the Supreme Court

Posted on by legalresearch

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. (more…)

Miller: Why the Government should argue that Article 50 is reversible

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By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

© PA
© PA

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.  (more…)