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Interview with Sophie Shaw, a newly qualified solicitor at Bryan Cave Leighton PaisnerMarch 7, 2021
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.
Case law on citizenship
Shamima Begum loses fight to restore UK citizenship
Reported by Ellena Mottram
The Supreme Court has unanimously ruled that Shamima Begum will not be allowed to return to the UK to fight her citizenship case. Ms Begum, who is currently in a camp controlled by arm guards in Syria, wanted to return to the UK to challenge the UK Government’s decision to remove her
Shamima Begum, who is now 21, left the UK to join Islamic State in Syria when she was just 15 years old. She left her home in east London with two friends in February 2015 and travelled to Syria via Turkey where she married a Dutch recruit. Of the two other girls who she travelled with, one, Kadiza Sultana, was reportedly killed in a bombing raid and the whereabouts of the other girl, Amira Abase, are currently unknown.
In 2019 Ms Begum was found in a refugee camp and the Home Secretary Sajid Javid stripped Ms Begum of her British citizenship. Citizenship can be removed for three reasons: where it is for the public good and it would not make the individual stateless; where the person obtain citizenship through fraud or where the individuals actions could harm the UK interests and they can claim citizenship elsewhere. The then home secretary removed her citizenship on the first ground, arguing the point on security grounds and highlighting she was a Bangladesh citizen by descent and therefore it was lawful to remove her citizenship as it did not render her stateless.
Ms Begum challenged this ruling in the Court of Appeal who ruled that she should be allowed to return to the UK to argue her case. Lawyer’s for Ms Begum had argued that she had been denied a fair hearing because her case could not be made from a Syrian Camp.
The Home Office however challenged this decision and argued that Ms Begum’s return to the UK would create ‘significant national security risks’. The Court of Appeal highlight that the case raised a point of public importance that could only be determined by the Supreme Court.
The Supreme Court has however ruled that Ms Begum’s rights were not breached when she was denied permission to return to the UK. The decision was unanimous amongst the justices highlighting that the Court of Appeal judgement ‘did not give the home secretary’s assessment the respect which it should have received’.
Whilst the judges role is to uphold the rule of law which includes protecting the right to have a case heard fairly in court, they will not assess ministers decisions as incorrect in relation to national security unless they have heard compelling evidence to prove it. It highlighted the decision would have been made with intelligence which the court is not privy to, intelligence which supports the authority to make the decision.
Additionally, it highlighted that the Court of Appeal was wrong to believe that where ‘an individual’s right to have a fair hearing…came into conflict with the requirements of national security, her right to a fair hearing must prevail.’ Lord Reed commented that the right to a fair hearing did not trump all other considerations.
The decision creates significant difficulty to Ms Begum’s efforts to restore her citizenship. Whilst she can still appeal the decision to revoke her citizenship the camp she is currently in will not let her lawyers visit.
It is important to remember her right to citizenship has not been addressed by the Supreme Court.
The Court has just ruled she cannot return to the UK to challenge the decision. Her case challenging her citizenship has therefore be put on hold until she can somehow take part in the proceedings.
Current Home Secretary Priti Patel stated the decision ‘reaffirmed the home secretary’s authority to make vital national security decisions.’ However, the human rights group supporting Ms Begum’s case, Liberty’ argued that the case set a dangerous precedent.
One lawyer with liberty, Rosie Brighouse argued that ‘The right to a fair trial is not something democratic governments should take away on a whim and nor is someone’s British citizenship.
Case Law: Supreme Court
Supreme Court finds Uber drivers are workers, not self-employed
Reported by Jasmine Cracknell
The Supreme Court has unanimously dismissed Uber’s appeal, ruling that Uber drivers are workers.
The claim against Uber was brought by former Uber drivers James Farrar and Yaseem Aslam. At an employment tribunal in 2016, the pair successfully argued that they should be classed as workers under the definition of a ‘worker’ in the Employment Rights Act 1996. This decision was upheld by the Appeal Tribunal in 2017 and by a majority at the Court of Appeal in 2018.
Uber then appealed to the Supreme Court. The cab company sought to rely on its standard terms to argue drivers were self-employed, emphasizing that drivers provided their own vehicles and were free to work as little or as much as they wanted. Uber also argued that it acted as a booking agent only, and that drivers were independent contractors who worked under contracts made with customers, not contracts made with Uber.
The Supreme Court disagreed with this, stating that there was no written contract between Uber and its drivers, and that whether the drivers were workers had to be based on the parties’ conduct.
It also emphasized that the starting point for deciding if an individual is a worker is the legislation, which is designed to give protections to individuals who are in a ‘subordinate and dependent position’ because their employer exercises control over their work. The court found that Uber drivers were in a position of subordination and dependency as the Uber app is tightly controlled by Uber. This meant that Uber drivers could not improve their economic position or skills without working longer hours and meeting Uber’s performance measures.
The Supreme Court then went on to discuss five key reasons for finding that Uber drivers are workers:
- Uber dictates the pay of its drivers by setting the fare and not allowing drivers to change this.
- Drivers have no say in the contract terms imposed by Uber.
- Uber constrains the work of its drivers by monitoring drivers’ acceptance and cancellation of trip requests. Drivers who cancel or decline too many tips are automatically logged out of the app for 10 minutes, preventing them from working.
- Uber exercises significant control over the way in which drivers deliver their services through use of a customer rating system. Any driver who does not maintain an average rating will receive warnings and may eventually have their relationship with Uber terminated.
- Uber restricts communication between passengers and drivers to the minimum necessary to perform the trip and tries to prevent drivers establishing relationships with their passengers.
The Supreme Court also addressed the question of when Uber drivers are deemed to be ‘working’ for Uber. It held that the drivers’ working time includes any period when the driver is logged into the Uber app and ready and willing to accept a trip, and is not limited only to time spent driving customers to their destinations.
Case Law: Court of Justice of the EU
UK found guilty by CJEU of failing to comply with its legal pollution limits
Reported by Emma Ducroix
The UK has “systematically and persistently” broken legal limits on toxic air pollution for a decade, the court of justice of the EU (CJEU) has ruled.
Levels of nitrogen dioxide, mostly from diesel vehicles, remain illegally high in 75% of urban areas and the court said the UK had failed to tackle the problem in the shortest possible time, as required by law.
The case began before the UK left the EU and the legal limits remain in UK law. The UK could face financial penalties if it still fails to take action to comply. The court also ordered the UK to pay the legal costs incurred by the European commission. UK ministers had already been defeated three times in British courts by environmental lawyers ClientEarth.
Dirty air causes 40,000 early deaths every year in the UK and scientists think the pollution is likely to be damaging every organ in the body. A landmark coroner’s report in December found that illegal levels of air pollution had contributed to the death of nine-year-old Ella Kissi-Debrah.
“The government has been dragging its feet for too long on the air pollution crisis, downplaying the problem and passing the buck to local authorities,” said Katie Nield, of ClientEarth. The government’s own research shows that clean air zones, where charges are used to deter the most polluting vehicles from urban centres, are by far the most effective action. But only one has been implemented, in London, with others put on hold, delayed or rejected.
“It’s up to the UK government to work with local leaders to make sure these schemes are put in place as quickly as possible, alongside support for people and businesses to move to cleaner forms of transport,” Nield said. “While authorities dither and delay, people’s lives are being ruined by toxic air.”
A proposed Office for Environmental Protection will be the new domestic institution holding the UK government to account.
A spokeswoman for the Department for Environment, Food and Rural Affairs said: “We are considering this judgment from the CJEU. We continue to work at pace to deliver our ambitious NO2 plan and our 2019 clean air strategy, which was praised by the WHO as an example for the rest of the world to follow.”
She said the government’s 2017 NO2 plan and its 2018 supplement went further than before in requiring local authorities to assess how to bring down air pollution levels in the shortest possible time.
If the UK fails to end illegal levels of pollution within a reasonable period, the European commission could issue a formal letter requiring the UK to remedy the situation. If the UK fails to do that, the commission could seek the imposition of financial penalties by the CJEU, although it is uncertain whether it will have the power or the inclination to do this, now the UK is no longer an EU member.