Employment law

Striking arguments

We are living through what is sometimes nostalgically referred to as a Winter of Discontent, although the period of industrial unrest recalled by that phrase, the winter of 1978–9, was much worse. Nor is there yet a General Strike. More of a general sense of chaos. Workers in several key public sector or infrastructure industries are going on or threatening to go on strike, including the railways, border force, nurses, doctors, ambulance workers, teachers in schools and universities, bus drivers, and civil (but perhaps not servile) servants.

See BBC: Strike dates: Who is striking in January, February and March and what are their pay claims?

The government’s response has generally been to not get involved and see if the strikers give up or take up slightly modified pay offers, but recently some concessions have been made by individual ministers attempting to get slightly less uninvolved, without much effect. However, perhaps in an attempt to get tough with the unions who are organising these strikes, the government has now come up with the idea of enforcing ‘minimum service levels’, which workers in key infrastructure occupations will have to maintain even when striking. Hence the Strikes (Minimum Service Levels) Bill (“MSB”) proposed by Grant Shapps, Secretary of State for Business, Energy and Industrial Strategy (BEIS — pronounced “bees”, as in busy as, apparently).

The Bill would introduce yet further amendments to the baggy and oft-amended Trade Union and Labour Relations (Consolidation) Act 1992. It appears to grant Shapps and other ministers wide powers to amend by ministerial fiat (or exercise of so-called ‘Henry VIII powers’) primary legislation:

“3. Power to make consequential provision (1) The Secretary of State may by regulations made by statutory instrument make provision that is consequential on this Act. (2) Regulations under this section may amend, repeal or revoke provision made by or under primary legislation passed — (a) before this Act, or (b) later in the same session of Parliament as this Act.”

The MSB has been described by the UK Labour Law Blog as “another legislative episode in the never-ending ‘death by a thousand cuts’ of trade unions’ ability to mount an effective lawful industrial action.” A recent post assesses the compatibility of the MSB with International Labour Organisation (ILO) standards: see The Strikes (Minimum Service) Bill: A Blatant Violation of International Labour Standards

There is also a discussion on the Pinsent Masons Out-Law blog on the MSB’s compatibility with the right to strike under the ECHR: see UK legislates for minimum service levels during strike action

Scotland

Gender agenda

The Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill on 22 December 2022, a majority of 86 to 39, in the face of some strident protests and opposition. The legislation improves the system by which transgender people can apply for legal recognition through a Gender Recognition Certificate (GRC).

Under the Bill, trans people aged 16 and older applying for a GRC will be required to make a legally binding declaration that they are already living in their acquired gender and intend to do so permanently. But they won’t be required to obtain a medical diagnosis of gender dysphoria, and the Bill also reduces the waiting time from two years to six months.

The Bill includes safeguards against misuse of the system. It will be a criminal offence for applicants to make a false application. A new statutory aggravator and a risk‑based approach in relation to sex offences strengthen these protections.

However, the UK government at Westminster has, for the first time, used section 35 of the Scotland Act 1998 to block the bill from receiving royal assent: see The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (SI 2023/41).

The Secretary of State for Scotland, Alister Jack, made the order on the ground that he believed the bill would have an adverse effect on the operation of equalities legislation across Scotland, England and Wales. His reasons are set out in a Policy Statement.

Scotland’s first minister Nicola Sturgeon told the BBC that the issue would “inevitably end up in court” and that the Scottish government would “vigorously defend this legislation”. For more on this, see Joshua Rozenberg, A Lawyer Writes: Why Jack blocked bill.

Open justice

Evidence to be called for

The government has published its response to last year’s report by the Commons Justice Committee on Open justice: court reporting in the digital age, to which ICLR submitted evidence. The government sets out its response to the various recommendations in the committee’s report. We will publish a more detailed commentary on this when we’ve had a chance to digest it all, but for the moment it is worth flagging up that in his covering letter justice minister Mike Freer MP offers the committee’s chair Sir Bob Neill MP an undertaking that:

“the Ministry of Justice will launch a wide-ranging call for evidence exploring the themes of open justice, access to information and data, and transparency across our courts and tribunals”.

He also mentions that:

“in April 2022 The National Archives became responsible for the storage and publication of judgments and decisions from courts and tribunals in England and Wales, increasing access to case law. Court judgments and tribunal decisions are being made available to the public through the ‘Find Case Law’ service. The service currently prioritises judgments and decisions from a limited number of courts and tribunals, but the final aim is to provide a complete record of judgments and decisions.”

ICLR has been monitoring the efficiency of this new service, as well as benefiting from it in being able to add many unreported judgments to its collection. We will be reporting on this in the near future.

Family Court Reporting Pilot

Reminder: at the end of January 2023, a new reporting pilot will launch in three courts (Leeds, Cardiff and Carlisle). It will effectively reverse the presumption against the reporting of children cases, and will enable journalists and legal bloggers who attend hearings in those courts to publish accounts of what they have seen, read and heard.

The pilot is not just about the mainstream print and broadcast media. Alongside journalists will be ‘legal bloggers’.

The pilot is one of the developments to emerge from the President of the Family Division’s current Transparency Review, following discussions within the various committees of the Transparency Implementation Group (TIG). Training events have been recorded and can be accessed via the main TIG information page.

See also: Transparency Project, Legal blogging in the family court — a new phase

Other recent items

Looking back

The most significant cases of 2022, podcast episode on Law Pod UK in which Rosalind English, Lucy McCann and Jonathan Metzer discuss some of the most important civil and human rights law judgments handed down in the last twelve months.
Top Discrimination Cases of 2022: five cases education lawyers should know, explained by Sarah Bowen, 3PB Barristers
Free Movement review of the year 2022, by Colin Yeo, covering developments in asylum and immigration law
Global Case-law on Violence Against Journalists, a special report from Global Freedom of Expression (Columbia University)
Picking up the pieces, investigation by Harriet Salem and Valentina Garkavenko for Delayed Gratification into war crimes in Ukraine following Russian retreat from Bucha
Two Years in the Making: The January 6 Final Report, by Lauren Zazzara, Hein Online blog, discussing the investigation into the insurrection at the U.S. Capitol on 6 January 2021 attempting to prevent the confirmation of President Biden’s election in 2020.
Brexit: The scorecard two years on, BBC article marking 1 January 2023 with the observation: “It is 50 years to the day since the UK joined the European Economic Community. It is two years since Britain exited the European single market.”
Rejoiners should brace themselves for the United Kingdom to spend a long time outside the European Union, says David Allen Green on his Law and Policy Blog.

Looking Ahead

What Is In Store For Human Rights In 2023? by Emma Guy, Editor, Each Other
The end of retained EU law? Analysis by Macfarlanes of the implications of the Retained EU Law (Revocation and Reform) Bill
The Coronation Claims Office, described by the Law & Religion UK blog as “one of the more obscure byways of law and religion”, discussing the ad hoc body which in advance of the King’s coronation in May will apparently perform the function normally assigned to a Court of Claims. (We think it might be interesting to know more about the Court of Claims, its jurisdiction and practice, and whether it has ever published any rulings.)

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

COMMONS — Common land — Camping: Darwall v Dartmoor National Park Authority, 13 Jan 2023 [2023] EWHC 35 (Ch); [2023] WLR(D) 21, Ch D

COMPETITION — Competition Appeal Tribunal — Collective proceedings order: Mark McLaren Class Representative Ltd v MOL (Europe Africa) Ltd, 21 Dec 2022 [2022] EWCA Civ 1701; [2023] WLR(D) 3, CA

CRIME — Costs — Power to award costs: Hargreaves v Powys County Council, 10 Jan 2023 [2023] EWHC 13 (Admin); [2023] WLR(D) 12, DC

DATA PROTECTION — Personal data — Processing: BE v Nemzeti Adatvédelmi és Információszabadság Hatóság, 12 Jan 2023 (Case C-132/21); EU:C:2023:2; [2023] WLR(D) 14, ECJ

ENVIRONMENT — Protection — Climate change: R (Friends of the Earth) v Secretary of State for International Trade, 13 Jan 2023 [2023] EWCA Civ 14; [2023] WLR(D) 22, CA

HEALTH AND SAFETY — Employer’s duty — Work equipment: TJ v Inspectoratul General pentru Imigrări, 22 Dec 2022 (Case C-392/21); EU:C:2022:1020; [2023] WLR(D) 8, ECJ

JUDICIAL REVIEW — Jurisdiction — Challenge to lawfulness of local authority charging policy in respect of community care services: McCue v Glasgow City Council, 11 Jan 2023 [2023] UKSC 1; [2023] WLR(D) 20, SC(Sc)

PLANNING — Development — Community infrastructure levy: R (Braithwaite) v East Suffolk Council, 21 Dec 2022 [2022] EWCA Civ 1716; [2023] WLR(D) 11, CA

ROAD TRAFFIC — Causing death by dangerous driving — Defendant driving motor scooter with pillion passenger aged 14: R v Holder (Kai), 13 Jan 2023 [2023] EWCA Crim 5; [2023] WLR(D) 19, CA

SHIPPING — Limitation of liability — Carrier’s liability: Trafigura Pte Ltd v TKK Shipping Pte Ltd, 13 Jan 2023 [2023] EWHC 26 (Comm); [2023] WLR(D) 23, KBD

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

St Philips Barristers: Court of Appeal dismisses landmark Coronavirus case: Rodgers v Leeds Laser Cutting Ltd [2022] EWCA Civ 1659; [2022] WLR(D) 517, CA

Farrar’s Building: Amending Claims in the Employment Tribunal: Chaudhry v Cerberus Security and Monitoring Services Ltd (Practice and Procedure) [2022] EAT 172, EAT

Becket Chambers: Mother v Father [2022] EWHC 3107 (Fam): I was not allowed to give evidence or cross-examine in family court: can I appeal?Mother v Father [2022] EWHC 3107 (Fam), Fam D

Gatehouse Chambers: Large award of damages and/or equitable compensation ordered against the perpetrators of a labour supply fraud: Umbrella Care Ltd v Nisa [2022] EWHC 3139 (Ch), Ch D

Local Government Lawyer: Woman with diabetes and subject to deprivation of liberty in care placement to be allowed home, judge rules: Lancashire & South Cumbria NHS Foundation & Anor v AH [2022] EWCOP 45, Ct of Protection

Law & Religion UK: Scientology and exemption from rates: Church of Scientology v Ricketts (VO): The Church of Scientology Religious Education College Inc v Ricketts [2023] UKUT 1 (LC), UT (LC)

Law & Religion UK: Parental rights and “relationships and sexuality education” in Wales”: R (Isherwood): R (Isherwood) v The Welsh Ministers [2022] EWHC 3331 (Admin), KBD

Inforrm’s blog: Case Law, Strasbourg: Zemmour v France, Journalist’s conviction for inciting discrimination did not breach Article 10: Zemmour v France (Appn no 63539/19); [2022] ECHR 1130, ECtHR

Inforrm’s blog: Case Law, CJEU: TU, RE v Google LLC: A step forward in the rational regulation of data? TU v Google LLC (Case C-460/20); EU:C:2022:962; [2023] WLR(D) 4, ECJ

3PB Barristers: £17,500 Costs Order on the Small Claims Track: Poor Mr Boswell: Reed v Boswell (unreported); Judgment pdf, County Ct

RPC Perspectives: Tribunal orders HMRC to close its enquiry: Newpier Charity Ltd v Revenue And Customs [2022] UKFTT 373 (TC), FTT (TC)

Electronic Immigration Network: Domestic Violence Indefinite Leave to Remain (DVILR) of the Immigration Rules breaches Article 14 of the ECHR: R (AM) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin); [2022] WLR(D) 409, QBD

Nearly Legal: Insurance premiums and commissions: Residents Association of Canary Riverside v Canary Riverside Estate Management Ltd (unreported) FTT

Free Movement: Social media and the duty of candour in age assessment proceedings: R (BG) v London Borough of Hackney [2022] UKUT 338 (IAC), UT

And finally…

In case you haven’t made any New Year’s Resolutions, here’s one to think about:

Excited to launch the #ProBonoPledge today. Please take a look. We're championing all of the Bar's pro bono work through this initiative and it's an important way for us to recognise and celebrate the deeply impressive contribution of the profession to access to justice. https://t.co/Jp9sDQ8BqF

— Rebecca Wilkie (@wilkie_rebecca) January 11, 2023

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.

Featured image: Shutterstock.

Weekly Notes: legal news from the ICLR, 16 January 2023