The Future Lawyer Weekly Update – w/c 31st August

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Judicial Review

SNP warns the government’s judicial review inquiry could threaten the Acts of the Union.

Reported by Oliver Murrell 

In July, the government announced they would be launching an “independent review” into the role judicial review plays in challenging the government and local authorities. The inquiry is almost certainly a partial backlash to the judicial review challenges to the government’s controversial proroguing of Parliament last year. However, Joanna Cherry QC MP has accused the government of endangering the Acts of the Union, which joined Scotland and England into Great Britain. Cherry was instrumental in having Boris Johnson’s proroguing of Parliament reversed, having launched a successful judicial review challenge in the Scottish courts.
Her warning to the government will not be well received, however, is her warning a political move, or does it highlight a serious issue in the inquiry?

The inquiry, which is chaired by Lord Faulks QC, will specifically consider:

•  Whether the terms of judicial review should be written into law
• Whether certain executive decisions should be decided on by judges
• Which grounds and remedies should be available in claims brought against the government
• Any further procedural reforms to judicial review, such as timings and the appeal process

By looking at the considerations of the inquiry, is it clear to see some perceive it as politically based. The government has repeatedly been publicly stymied in the courts through judicial reviews and any changes the government make to judicial review and its reach are a cause for concern, and not just in Scotland.
Every government has a 5-year window in which they are generally impervious to the constitutional check on them that is the electorate. In this period, the government and executive can be prevented improperly implementing changes or policy through judicial review. By removing or altering some of the checks judicial review provides, the government would not be challenged in the same way it was in the prorogation cases last year. Changing the way judicial review functions would not just broaden government power, but it would fundamentally change the UK Constitution and remove the vital checks and balances process that ensures no one faction in the Constitution have too much power.

If that wasn’t concerning enough, any changes to judicial review could certainly threaten the Acts of the Union as Joanna Cherry warned. In Article 19 of the Acts of the Union there is a provision allowing for separate legal systems in Scotland and England. Not only that, but the article provides for the continued separation of systems and that the government in Westminster will not interfere with that system. The Scottish system is different from the English system in a number of ways, ranging from the courts themselves to the famous ‘Scottish Verdict’. However, one unifying feature is the judicial review process. This is how the prorogation case was launched by Joanna Cherry in the Scottish courts and by Gina Miller in the English courts. As a result of this feature being the same in both systems, any changes the government makes to the judicial review process would have an effect on both sides of the boarder. Something which article 19 of the Acts of the Union expressly states the government in Westminster will not do.

The judicial review system is one that provides checks and balances on the government and ensures the government, amongst other authorities, implements and changes policies properly. To make any major alterations to the judicial review process would be dangerous, both politically and legally, and would cause a power shift in the UK Constitution that has not been seen in modern times. Not only that, but it could have a detrimental impact on Scottish-English political relations and truly threaten the Acts of the Union that have bound the two kingdoms for over 300 years.

You can read more here or here.

Mass surveillance: An Update on Edward Snowden’s case

A violation of the Foreign Intelligence Surveillance Act: A court rules seven years on about the NSA surveillance exposed by Snowden that was illegal

Reported by Emma Ducroix

In a ruling, the US court of appeals for the ninth circuit said the warrantless telephone dragnet that secretly collected millions of Americans’ telephone records violated the Foreign Intelligence Surveillance Act and may well have been unconstitutional.

Snowden, who fled to Russia in the aftermath of the 2013 disclosures and still faces US espionage charges, said on Twitter that the ruling was a vindication of his decision to go public with evidence of the National Security Agency’s domestic eavesdropping operation.

“I never imagined that I would live to see our courts condemn the NSA’s activities as unlawful and in the same ruling credit me for exposing them,” Snowden said in a message posted to Twitter.

Seven years after the former National Security Agency contractor blew the whistle on the mass surveillance of Americans’ telephone records, an appeals court has found the program was unlawful – and that the US intelligence leaders who publicly defended it were not telling the truth.

Evidence that the NSA was secretly building a vast database of US telephone records – the who, the how, the when and the where of millions of mobile calls – was the first and arguably the most explosive of the Snowden revelations published by the Guardian in 2013.

Up until that moment, top intelligence officials publicly insisted the NSA never knowingly collected information on Americans at all. After the program’s exposure, US officials fell back on the argument that the spying had played a crucial role in fighting domestic extremism, citing in particular the case of four San Diego residents who were accused of providing aid to religious fanatics in Somalia.

US officials insisted that the four – Basaaly Saeed Moalin, Ahmed Nasir Taalil Mohamud, Mohamed Mohamud and Issa Doreh – were convicted in 2013 thanks to the NSA’s telephone record spying, but the ninth circuit ruled on that those claims were “inconsistent with the contents of the classified record”.

The ruling will not affect the convictions of Moalin and his fellow defendants; the court ruled the illegal surveillance did not taint the evidence introduced at their trial. Nevertheless, watchdog groups including the American Civil Liberties Union, which helped bring the case to appeal, welcomed the judges’ verdict on the NSA’s spy program.

“Today’s ruling is a victory for our privacy rights,” the ACLU said in a statement, saying it “makes plain that the NSA’s bulk collection of Americans’ phone records violated the constitution”.

You can find more here or here.

Human Rights and Climate Change

European Court of Human Rights: a sue against 33 countries over climate change

Reported by Emma Ducroix

Young activists from Portugal have filed the first climate change case at the European court of human rights in Strasbourg, demanding 33 countries make more ambitious emissions cuts to safeguard their future physical and mental wellbeing.

The plaintiffs – four children and two young adults – want the standard-setting court to issue binding orders on the 33 states, which include the EU as well as the UK, Norway, Russia, Turkey, Switzerland and Ukraine, to prevent discrimination against the young and protect their rights to exercise outdoors and live without anxiety.

The case is being filed after Portugal recorded its hottest July in 90 years. It was initiated three years ago following devastating forest fires in Portugal that killed over 120 people. Four of the plaintiffs are from Leiria, one of the worst-hit areas. The two other applicants live in Lisbon, which sweltered through record-breaking 44C heat in 2018.

Expert testimony will warn that these trends will worsen in the future. Scientists have predicted a thirty-fold increase in deaths from heatwaves in western Europe by the period 2071-2100 and will also quadrupling the risk of forest fires.

The crowdfunded legal action breaks new ground by suing multiple states both for the emissions within their borders and also for the climate impact that their consumers and companies have elsewhere in the world through trade, fossil-fuel extraction and outsourcing.

Catarina Mota, 20, said governments must act on scientific warnings because the climate crisis was already affecting young people psychologically and physically.

Sofia Oliveira, aged 15, said her generation was acutely conscious of the dangers that lie ahead: “We have seen unbearable heatwaves that cause water shortages and damage food production, and violent wildfires that give us anxiety and make us afraid to travel through our country’s forests”
She said the EU must commit to a minimum 65% emissions reduction target by 2030 and ensure a green recovery from the Covid crisis by investing in renewables and clean technology rather than fossil fuels.

The young applicants are being represented by British barristers, including Marc Willers QC, who are experts in environmental and climate change law, and supported by the London- and Dublin-based NGO Global Legal Action Network (Glan), which raised £27,000 through crowdfunding.

More than 1,300 climate-related lawsuits have been filed worldwide since 1990. The most successful so far was in the Netherlands, where the Urgenda Foundation forced the government into scaling back coal-fired power plants and taking other compliance measures worth about €3bn (£2.7bn).

Gerry Liston, legal officer with Glan, said the latest case could go further because Strasbourg sets standards that other courts follow. “This case is unique in scale. This is the most countries ever taken to a regional court in a climate change case. If we win, it will have a very significant effect throughout Europe.”
He noted that this was the first time the court had dealt with an issue that threatens the very system of rules it was established to uphold, citing a warning last year by the UN special rapporteur Philip Alston that human rights may not survive the upheaval caused by climate change.

The NGO behind the case says the legal campaign aims to amplify the pressure applied by school climate strikers.

“This is a culmination of all the campaigning that the youth movement are engaged in. Now they are asking the courts to step up. This is a last-ditch effort to put the ship back on a course that doesn’t involve catastrophic climate change,” said Gearóid Ó Cuinn, the director of Glan. “It is the youth who stand to be discriminated against. They bear the burden in terms of risk.”

The court will have to consider whether the case is admissible and then, if so, rule on the merits of the case. This could take months or years. A new phase of crowdfunding has been launched. Ó Cuinn said there was no time to wait: “The situation is dire. The climate threat dwarfs Covid. Given the urgency of dealing with emissions, we think our case should be a priority.”

Find out more here or here.

Judicial Review of Lockdown: An Update

Court of Appeal rules challenge to UK lockdown should be heard

Reported by Jasmine Cracknell

In the 22nd June briefing, we reported on the judicial review challenge brought by Simon Dolan on the legality of the UK lockdown (Dolan’s Ors v Secretary of State for Health and Social Anor). Mr Dolan’s application was initially refused by the High Court in July, however the Court of Appeal say the case should be heard in full.
Mr Dolan, who owns several UK businesses, is seeking to challenge the legality and the lawfulness of lockdown and is also arguing the lockdown contravened the convention rights, specifically the rights to liberty, family life, education and property. His Crowd Justice page has now raised £252,000, with over 8,000 people in support of the campaign.

At the initial hearing in the High Court, the Honorable Mr Justice Lewis decided Mr Dolan’s judicial review claim should not proceed. He said the Secretary of State had not acted ‘irrationally’ or ‘disproportionately’ and ‘did not fetter his discretion’ when taking measures to protect the public from the Coronavirus. With regard to the convention rights, specifically Article 11(2) (the right to freedom of peaceful assembly and to freedom of association with others), Mr Justice Lewis also found the measures taken by the Government to be proportionate to the legitimate public health aim of restricting transmission of the virus. He said: “There is no realistic prospect of a court deciding in these, possibly unique, circumstances that the regulation was a disproportionate interference with the rights guaranteed by Article 11 of the Convention. There is, therefore, no purpose in granting permission to bring the claim.”

In August, however, the Court of Appeal gave permission for Mr Dolan to proceed to the next stage of Judicial Review, stating the claimants should have ‘an opportunity to make good their case, at least on arguability’ in open court. The Rt Honorable Lord Justice Hickinbottom said whilst Mr Justice Lewis’ judgement may indeed be found to be correct, the regulations raise fundamental questions ‘concerning the proper spheres for democratically accountable ministers of the government and judges’, especially considering the measures taken were some of the most restrictive ever. He added that due to the continuation of some restrictions and the possibility of some measures being re-imposed (as seen by local lockdowns), it is important that the grounds for judicial review be heard. The application has been adjourned into open court on a rolled-up basis and will take place during the week of 28th September. If the appeal or application for judicial review is granted, a substantive hearing will immediately follow.

You can find more here and here.