Pub Date : 2022-07-03DOI: 10.1080/10854681.2022.2127570
Naomi Hart
1. In R (Elan-Cane) v Secretary of State for the Home Department (‘Elan-Cane’), the Supreme Court was faced with a challenge to a policy of Her Majesty’s Passport Office (HMPO), an agency of the Home Office which issues passports at the discretion of the respondent Secretary of State in the exercise of the Royal Prerogative, which required the appellant to state their gender as either male or female in order to obtain a passport. The Court was required to determine whether HMPO’s policy was incompatible with the European Convention on Human Rights (‘the Convention’), and (irrespective of the answer to the first question) whether HMPO’s policy nonetheless breached the Secretary of State’s obligations under the Human Rights Act 1998 (‘the Act’). Lord Reed PSC, who delivered a judgment with which all other members of the Court agreed, answered both questions in the negative.
{"title":"The Supreme Court’s Judgment in Elan-Cane: Non-gendered Identity and the Relationship Between the Human Rights Act and the European Convention","authors":"Naomi Hart","doi":"10.1080/10854681.2022.2127570","DOIUrl":"https://doi.org/10.1080/10854681.2022.2127570","url":null,"abstract":"1. In R (Elan-Cane) v Secretary of State for the Home Department (‘Elan-Cane’), the Supreme Court was faced with a challenge to a policy of Her Majesty’s Passport Office (HMPO), an agency of the Home Office which issues passports at the discretion of the respondent Secretary of State in the exercise of the Royal Prerogative, which required the appellant to state their gender as either male or female in order to obtain a passport. The Court was required to determine whether HMPO’s policy was incompatible with the European Convention on Human Rights (‘the Convention’), and (irrespective of the answer to the first question) whether HMPO’s policy nonetheless breached the Secretary of State’s obligations under the Human Rights Act 1998 (‘the Act’). Lord Reed PSC, who delivered a judgment with which all other members of the Court agreed, answered both questions in the negative.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132695294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10854681.2022.2127579
Charlotte Ventham, Beatrice Collier, R. Cohen, Robert Talalay, Jennifer Wright
1. The police service has long been a target of those seeking to curb the excesses of state power. Given the reach of policing powers into the everyday lives of all citizens – be they law-abiding or otherwise – that is hardly surprising. Whether in the prevention of crime and disorder, the conduct of investigations and prosecutions, the maintenance of public safety or the policing of the service itself via complaints, misconduct and vetting processes, decisions and actions taken by the police have the potential to affect each and every one of us in dramatic fashion. The delicate balance that falls to be struck between the proper performance of police functions and proper respect for the rights of the citizen involves difficult – even, on occasions, life and death – decisions invoking a wealth of public interest considerations and fundamental questions over civil liberties, human rights and equality.
{"title":"Judicial Reviews Claims Involving the Police","authors":"Charlotte Ventham, Beatrice Collier, R. Cohen, Robert Talalay, Jennifer Wright","doi":"10.1080/10854681.2022.2127579","DOIUrl":"https://doi.org/10.1080/10854681.2022.2127579","url":null,"abstract":"1. The police service has long been a target of those seeking to curb the excesses of state power. Given the reach of policing powers into the everyday lives of all citizens – be they law-abiding or otherwise – that is hardly surprising. Whether in the prevention of crime and disorder, the conduct of investigations and prosecutions, the maintenance of public safety or the policing of the service itself via complaints, misconduct and vetting processes, decisions and actions taken by the police have the potential to affect each and every one of us in dramatic fashion. The delicate balance that falls to be struck between the proper performance of police functions and proper respect for the rights of the citizen involves difficult – even, on occasions, life and death – decisions invoking a wealth of public interest considerations and fundamental questions over civil liberties, human rights and equality.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124560932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10854681.2022.2132800
James A. McDermott
1. The rejection by a tribunal of a practitioner’s defence to allegations faced in professional disciplinary and regulatory proceedings, and the relevance of the practitioner having run such a failed defence to the tribunal’s determination of the issues of impairment and sanction, have been the subject of some controversy in numerous statutory appeals in recent years. The judgment of Mrs Justice Collins Rice in Sawati v General Medical Council has, however, provided some helpful clarity for regulators and practitioners alike as to how and when such failed defences can properly be taken into account in determining these issues.
{"title":"Rejected Defences in Professional Disciplinary Proceedings","authors":"James A. McDermott","doi":"10.1080/10854681.2022.2132800","DOIUrl":"https://doi.org/10.1080/10854681.2022.2132800","url":null,"abstract":"1. The rejection by a tribunal of a practitioner’s defence to allegations faced in professional disciplinary and regulatory proceedings, and the relevance of the practitioner having run such a failed defence to the tribunal’s determination of the issues of impairment and sanction, have been the subject of some controversy in numerous statutory appeals in recent years. The judgment of Mrs Justice Collins Rice in Sawati v General Medical Council has, however, provided some helpful clarity for regulators and practitioners alike as to how and when such failed defences can properly be taken into account in determining these issues.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130420949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10854681.2022.2135336
David Welsh
2. This article considers the various factors that inform the forum within which proceedings for judicial review can or ought to be brought. It primarily considers matters of jurisdiction between the courts of England & Wales on the one hand and the courts of Scotland on the other. This article is not concerned with proceedings for judicial review that are heard in the Upper Tribunal and nor is it concerned with the provisions of CPR r 7.1A and 7.1B in relation to claims against Welsh public bodies having to be issued and heard in Wales.
{"title":"Judicial Review: Questions of Jurisdiction and Appropriate Forum","authors":"David Welsh","doi":"10.1080/10854681.2022.2135336","DOIUrl":"https://doi.org/10.1080/10854681.2022.2135336","url":null,"abstract":"2. This article considers the various factors that inform the forum within which proceedings for judicial review can or ought to be brought. It primarily considers matters of jurisdiction between the courts of England & Wales on the one hand and the courts of Scotland on the other. This article is not concerned with proceedings for judicial review that are heard in the Upper Tribunal and nor is it concerned with the provisions of CPR r 7.1A and 7.1B in relation to claims against Welsh public bodies having to be issued and heard in Wales.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130173909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10854681.2022.2154463
C. Monaghan
1. This article considers the decision of the Divisional Court in R (FDA) v The Prime Minister and Minister for the Civil Service, where the Court had to decide whether the question of whether the Prime Minister had misdirected himself as to the meaning of ‘bullying’ within the Ministerial Code was justiciable and, if so, whether the Prime Minister had in fact misdirected himself. The Court was comprised of Lewis LJ and Steyn J.
{"title":"A Question of Justiciability: Did the Prime Minister Misdirect Himself as to the Meaning of Bullying Within the Ministerial Code? R (FDA) v The Prime Minister and Minister for the Civil Service [2021] EWHC 3279 (Admin)","authors":"C. Monaghan","doi":"10.1080/10854681.2022.2154463","DOIUrl":"https://doi.org/10.1080/10854681.2022.2154463","url":null,"abstract":"1. This article considers the decision of the Divisional Court in R (FDA) v The Prime Minister and Minister for the Civil Service, where the Court had to decide whether the question of whether the Prime Minister had misdirected himself as to the meaning of ‘bullying’ within the Ministerial Code was justiciable and, if so, whether the Prime Minister had in fact misdirected himself. The Court was comprised of Lewis LJ and Steyn J.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114801262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10854681.2022.2121033
Lane
1. By the time you read this, I shall have ended my time as President of the Upper Tribunal Immigration and Asylum Chamber (UTIAC). During my five years in that post, I have been in charge of a judicial entity that both decides judicial reviews and is subject to them. At the same time, I have been sitting regularly in the Administrative Court. Whether all or any of this makes me qualified to opine on judicial review is, however, debatable.
{"title":"Judicial Review and the Upper Tribunal","authors":"Lane","doi":"10.1080/10854681.2022.2121033","DOIUrl":"https://doi.org/10.1080/10854681.2022.2121033","url":null,"abstract":"1. By the time you read this, I shall have ended my time as President of the Upper Tribunal Immigration and Asylum Chamber (UTIAC). During my five years in that post, I have been in charge of a judicial entity that both decides judicial reviews and is subject to them. At the same time, I have been sitting regularly in the Administrative Court. Whether all or any of this makes me qualified to opine on judicial review is, however, debatable.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122157280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-03DOI: 10.1080/10854681.2022.2115834
Harriet Wakeman
1. In HA (Iraq) and others v SSHD, the Supreme Court considered three conjoined appeals by HA, RA and AA. The appeals concerned the statutory regime governing the deportation of foreign criminals under s 117C of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). The judgment sets out important guidance in relation to the additional art 8 European Convention on Human Rights (ECHR) considerations in cases involving the deportation of foreign criminals, and in particular in relation to the ‘unduly harsh’ test within s 117C(5) and the ‘very compelling circumstances’ test within s 117C(6) of the 2002 Act. This case note focuses on the key principles set out by the Supreme Court, rather than the outcome of the individual cases of HA, RA and AA, which necessarily turn on their own facts.
{"title":"HA (Iraq) and Others v SSHD [2022] UKSC 22","authors":"Harriet Wakeman","doi":"10.1080/10854681.2022.2115834","DOIUrl":"https://doi.org/10.1080/10854681.2022.2115834","url":null,"abstract":"1. In HA (Iraq) and others v SSHD, the Supreme Court considered three conjoined appeals by HA, RA and AA. The appeals concerned the statutory regime governing the deportation of foreign criminals under s 117C of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). The judgment sets out important guidance in relation to the additional art 8 European Convention on Human Rights (ECHR) considerations in cases involving the deportation of foreign criminals, and in particular in relation to the ‘unduly harsh’ test within s 117C(5) and the ‘very compelling circumstances’ test within s 117C(6) of the 2002 Act. This case note focuses on the key principles set out by the Supreme Court, rather than the outcome of the individual cases of HA, RA and AA, which necessarily turn on their own facts.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124647868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-03DOI: 10.1080/10854681.2022.2096332
L. Sales
Religion poses challenges for a pluralistic, democratic and open society. Modern Western states are constructed as liberal democratic polities on the basis of civic rights of equal participation and voice and human rights to respect individual choices of how to live. They involve a strong (though not absolute) separation between concepts of right and the good. Historically, an important part of the point of this has been to defuse the destructive power of religious feeling when it enters the political realm – a lesson learned and outcome made attractive in Europe and the USA through the bitter experience of the Wars of Religion.
{"title":"Religion and the Law of the UK","authors":"L. Sales","doi":"10.1080/10854681.2022.2096332","DOIUrl":"https://doi.org/10.1080/10854681.2022.2096332","url":null,"abstract":"Religion poses challenges for a pluralistic, democratic and open society. Modern Western states are constructed as liberal democratic polities on the basis of civic rights of equal participation and voice and human rights to respect individual choices of how to live. They involve a strong (though not absolute) separation between concepts of right and the good. Historically, an important part of the point of this has been to defuse the destructive power of religious feeling when it enters the political realm – a lesson learned and outcome made attractive in Europe and the USA through the bitter experience of the Wars of Religion.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124000824","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-03DOI: 10.1080/10854681.2022.2109404
Imogen Sadler
1. So said Lord Templeman, in M v Home Office, in what Lord Neuberger was later to describe as ‘characteristically colourful’ language. The title of this article may puzzle the reader, lawyer and lay person alike. The proposition that decisions of the Court must be followed within a democracy seems an obvious one. How else would the checks and balances within a democracy work? It would seem odd if, should a public body fail to comply with an order of a court, no mechanism would be in place to remedy that non-compliance.
{"title":"Necessity or Grace? The Requirement for Public Authorities to Follow Decisions of the Courts","authors":"Imogen Sadler","doi":"10.1080/10854681.2022.2109404","DOIUrl":"https://doi.org/10.1080/10854681.2022.2109404","url":null,"abstract":"1. So said Lord Templeman, in M v Home Office, in what Lord Neuberger was later to describe as ‘characteristically colourful’ language. The title of this article may puzzle the reader, lawyer and lay person alike. The proposition that decisions of the Court must be followed within a democracy seems an obvious one. How else would the checks and balances within a democracy work? It would seem odd if, should a public body fail to comply with an order of a court, no mechanism would be in place to remedy that non-compliance.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128324294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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