Human rights and public law in the courts

The last 12 months saw a series of unpredictable developments. Bookies confirmed that the UK leaving the EU, a Donald Trump victory in the US presidential election, and Leicester City winning the Premier League were all deemed so unlikely that a £10 accumulator bet on all three would have returned £30m.

So far, 2017 may not be proving to be quite so unpredictable – although with the collapse of power sharing in Northern Ireland and there being no functioning government there since January, and the calling of an unexpected snap election and the resulting hung parliament, six months in it is certainly giving 2016 a run for its money. There have been many seismic shocks to the political landscape already, and we are only halfway through the year.

Public importance

This year has already seen a number of landmark developments on the legal landscape. In the opening weeks of the year, the Supreme Court handed down judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. The ruling itself was pored over by practitioners, politicians, academics, the press, and the public, but the case was significant for many other reasons, too.

First, the Supreme Court’s commendable commitment to open justice and the live-streaming of the hearing highlighted for the public an issue well known to practitioners: the lack of diversity on the Supreme Court bench (with only one woman of 11 justices, all of whom are white) and among the advocates (the hearing overwhelmingly consisted of submissions by white, male advocates, apart from a combined one hour of submissions by Helen Mountfield QC and Manjit Gill QC on day four).

Second, the Supreme Court sat en banc for the first time, with all 11 Supreme Court justices deciding the case. While the Supreme Court has on a number of occasions sat with a seven-judge or even nine-judge bench, this was a departure, recognising the high constitutional and public importance of the case.

Detention by UK forces

January also saw the Supreme Court hand down three important judgments arising from the UK’s intervention in Iraq and Afghanistan, including Serdar Mohammed v Ministry of Defence; Al Waheed v MOD [2017] UKSC 2, in which a nine-member court considered the capture of individuals by UK forces in Iraq and Afghanistan.

It was held, by a 7-2 majority, that the UK had authority to detain individuals pursuant to UN Security Council resolutions authorising the use of all necessary measures if the detention was found to be required for imperative reasons of security – meaning that the trial judge will need to determine these matters in both cases. Significantly, a 6-3 majority held that, in any event, the procedural protections afforded to detainees in Afghanistan had been inadequate.

Gender discrimination

Discrimination has been a recurrent issue in the Supreme Court this year. In two important cases concerning gender discrimination, the Supreme Court’s approach has been far more claimant-friendly than that adopted in the courts below.

R (Coll) v Secretary of State for Justice [2017] UKSC 40 concerned the provision of approved premises (APs) (formerly known as probation hostels). There are 94 APs for men across England and Wales, with several in London, yet only six APs for women, none of which are in London or in Wales. This means that women are far more likely than men to be placed in an AP some distance away from their homes, families, and support networks. Ms Coll’s discrimination claim had been dismissed in the High Court and her appeal dismissed by the Court of Appeal, but she then had a clear win in the Supreme Court, with a unanimous finding of unjustified direct discrimination against women.

Similarly, in R (A and B) v Secretary of State for Health in England [2017] UKSC 41, the Supreme Court’s approach to the question of gender discrimination was very different to the dismissive approach in the courts below. A and B are a daughter and mother from a low-income family, forced to travel to England for an abortion when the daughter became pregnant as abortion is criminalised in most situations in Northern Ireland. Barred from accessing NHS services, they had to pay for the procedure, causing them financial strain and great distress and delay.

The High Court held that A and B’s situation was not even within the ambit of article 8, and so no question under article 14 arose; the Court of Appeal found that it was within the ambit of article 8 but there was not even a prima facie case of discrimination; and yet, the Supreme Court unanimously found there to be gender discrimination under article 14, although by the slimmest of majorities (3-2) it was held that this discrimination was justified (Lady Hale and Lord Kerr dissenting).

Benefit cap

Article 14 also featured in an important ruling by Mr Justice Collins, in his final week in the Administrative Court, in R (DA and others) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin). In what many newspapers heralded as a blow to the government’s ‘austerity agenda’, he held that the benefit cap is unlawful due to its discriminatory impact upon both lone parents with children aged under two and their children. He ruled that ‘real damage’ is being caused to the claimants and families like theirs across the country, and that ‘real misery is being caused to no good purpose’.

Police accountability

The second half of 2017 is likely to feature continued legal landmark decisions. There are judgments pending in a number of important human rights cases. At the top of that list is the Supreme Court’s decision in Commissioner of Police of the Metropolis v DSD and another, a case concerning whether the police failed in their duty to protect victims in the case of ‘black cab rapist’ John Worboys.

This is a case which may have significant ramifications for victims of serious crime where there has been a failure to investigate, including many victims of domestic violence and the bereaved families of the four young gay men murdered by serial killer Stephen Port.

Police accountability is likely to be a recurring theme later this year, too, given the recent announcement of criminal charges against six individuals in connection with the Hillsborough stadium disaster of 1989, over 28 years later.

Of course, 2017 may yet hold legal surprises – betting on likely court outcomes remains difficult as ever.

Caoilfhionn Gallagher QC is a barrister at Doughty Street Chambers

@DoughtyStPublic

www.doughtystreet.co.uk