Reflections on the JUSTICE Human Rights Conference 2020 – ‘Judicial Review’
University of Edinburgh Pro Bono Society Committee members attended the JUSTICE Human Rights Conference 2020. They have produced six blog posts based on their reflections. The fifth blog in this series is by Gabriella Barnes, Pro Bono Society Secretary, and Graduate LLB student, reflecting on the breakout session on ‘Judicial Review.’
Chair: Sir Michael Fordham
Catherine Callaghan QC, Blackstone Chambers
Andrew Lidbetter, Herbert Smith Freehills
Jennifer Macleod, Brick Court Chambers
This breakout session consisted of panellists going through cases in three areas of judicial review: Andrew Lidbetter from Herbert Smith Freehills went through “political” judicial reviews including prorogation and Brexit, Jennifer McLeod from Brick Court Chambers focused on the pressing matter of cases under judicial review specifically during COVID-19, and Catherine Callaghan QC discussed judicial review in human rights cases.
Lidbetter began with the Miller II case, one I’m sure many who were listening were familiar with and can be said to be one of the more political cases we’ve seen recently. The court found that the prorogation had the effect of frustrating the parliament’s constitutional role, even more important because of when Brexit day was. He then discusses the academic critiques of the case, mainly summarizing Professor Paul Craig’s article, discussing the justiciability of prorogation and by which standard this should be determined by, the application of the standard of review, and then the appropriate remedy that should be available. The next discussion was about a Brexit case surrounding the Benn Act litigation and another about not protecting the Belfast Agreement and the Northern Ireland Act 1998 during Brexit negotiations. He then went on to discuss the ITV case surrounding the election debate in 2019. He concluded with discussions about potential reforms to judicial review, which was mentioned in the Conservative Party election manifesto in 2019 and the Constitution, Democracy and Rights Commission efforts.
McLeod focused on COVID-19 and issues that have come up. She outlined key risks: prematurity, delay/lack of promptness, redundant/academic claims, and unnecessary claims, that can come about due to the pandemic. She then outlines substantive hurdles, including the analysis of laws based on rationality versus proportionality of laws made during the pandemic, citing Eastside Cheese case for the government adopting instead a precautionary stance. She says if both of these are not working in the current climate, then what can claimants try? McLeod predicts claimants will turn to discrimination with regard to the blanket effect of the legislation, which although have not been successful in courts have been more successful outside of courts. She also says that an increased focus of claims on Articles 2 and 3 of the ECHR (right to life and freedom from torture). She then says a possible argument is for the principle of legality of the legislation. Her final prediction is that transparency and right to information
Catherine Callaghan QC is the last panellist, discussing her top 8 judicial review human rights cases. Her discussions covered a wide range of topics and included the following: juvenile spies, facial recognition technology, the definition of “mother”, asylum claims by unaccompanied children, suspension of NHS pension payments, transphobic tweets by police officer, reduction of capped costs, and finally racist landlords case.
The panellists each went through a rapid-fire overview of cases in their discussions, many of which I was unfamiliar with and some, like the Miller case, I was. All three of these areas touched on hot topics and current affairs that immediately pulls the listeners in as we are watching all of this develops. As a law student, I found this breakout session incredibly interesting as many courses I’ve taken so far have been about historical cases, many of which are important to the fundamentals of law in Scotland, but far less cases about current issues that I can see develop before my own eyes. I really felt like after the session I gained a lot of knowledge and clarity of these topics, and also an introduction into cases that I was unfamiliar with. As this is one of my first experiences in a legal conference, I appreciate just how many important cases can be going on at any moment. With specifically the COVID-19 cases and with the human rights cases, I can see how valuable pro bono work can be, as rights can be violated in many ways, pandemic or not.
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