New Government, New Term – what’s ahead in public law

Now that the summer recess is over and Parliament has returned, we are likely to get more of a feel for how the new government will approach the intersection of law and politics, as well as for how they will take decisions in public law terms. There have been a number of interesting developments so far.

The end of the Rwanda scheme, but not of litigation in the asylum sphere

Within days of coming into office, the new government cancelled the Rwanda scheme. Whilst this was no surprise given Labour’s longstanding position on it, a formal position was urgent because the multi-handed challenge to the Safety of Rwanda Act was listed for hearing just days after the election. As a result of the change, the substantive hearing did not go ahead and shortly thereafter the claims were withdrawn on terms.

Although the litigation around the previous government’s Rwanda scheme is at an end, is not likely to bring litigation more generally in the asylum sphere to an end. Take for example that there remains the position of the many tens of thousands who were left ‘in limbo’ after the Illegal Migration Act was passed last year. Equally, most people who arrived in the UK seeking asylum were not being given a decision. They will all now need to have their claims decided.

Further, issues are likely to once a person’s claim has been decided and then rejected. In August, the new Home Secretary Yvette Cooper announced a “major surge in immigration enforcement and returns activity, to make sure that immigration and asylum rules are respected and enforced”. This includes new plans for the next 6 months to achieve the highest rate of removals of those with no right to be here, including failed asylum seekers, for five years. The announcement also stated that “staff are being redeployed to increase removal of failed asylum seekers, which had dropped by 40% since 2010. Three hundred caseworkers have already been reassigned to progress thousands of failed asylum and returns cases, including enforced and voluntary returns.”

Immigration lawyers on both sides are likely to remain busy.

Arms export licences to Israel

Another recent development relates to the legal challenge brought by a Palestinian human rights organisation, Al-Haq, and UK-based Global Legal Action Network (GLAN), to the granting of export licences for a range of arms to Israel on the basis that there was a risk that they could be used to violate international humanitarian law.

The UK has an export licencing system, under which all applications for a licence to export military equipment and related items are assessed against a set of criteria – known as SELC short for the Strategic Export Licensing Criteria. The export criteria reflect, among other things, the UK’s obligations under international law, and the potential for the goods to be used in the violation of human rights. Under criterion 2c of SELC the Government will “Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law”. Licences issued are kept under review and can be amended, suspended, refused or revoked as circumstances require. Until last week, the last review of existing and pending licences was in December 2023 when no decision to suspend was taken.

The latest review culminated in a decision announced on 2 September 2024 to suspend thirty arms export licences to Israel from a total of about 350. This was done on the stated basis of criterion 2c that there was a “clear risk” the arms could be used in serious violations of international humanitarian law in the war in Gaza.

The existing judicial review was listed for a CMC last week – and this development clearly altered the landscape. At that hearing it was decided that the claimants would be given disclosure of various material and that they would then consider it. A further hearing is listed in November 2024.

However, and in the meantime, it was reported this weekend that the UK Government is now facing a Judicial Review of the decision to suspend those arms export licences. According to its website, UK Lawyers for Israel (UKLFI) has sent a formal letter to the Government threatening legal action unless it cancels the decision to suspend around thirty licences for the export of arms to Israel.

According to their website, UKLFI are arguing that the decision appears to have been made on two grounds which have nothing to do with whether the banned items might be used to violate international humanitarian law. According to the official summary of the basis for the decision on the government website, the two grounds for suspending the thirty licences are:

1. That Israel could have done more to ensure that humanitarian assistance reaches the Gaza population and
2. That there were credible allegations of mistreatment of Palestinian detainees, who were denied access by the Red Cross.

UKLFI’s letter states that, even if these alleged risks exist, they are not connected with the particular arms whose export licences are being suspended. Therefore, so the argument goes, the decision is not justified under criterion 2c of the SELC.

It remains to be seen if the actual claim will be issued and if so, whether it will be joined the Al-Haq’s challenge.

Challenges from the Higher Education (Freedom of Speech) Act 2023

Litigation is also emerging from the new government’s decision to not commence the free speech provisions in the Higher Education (Freedom of Speech) Act 2023. The Freedom of Speech Act was passed in response to what the previous government considered to be a ‘chilling effect’ on staff and students’ ability to express their views at UK universities. The aim of the Act was said to try to drive culture change across campuses, and to construe academic freedom as including the ability to put forward new ideas and controversial or unpopular opinions without academics being at risk of losing their jobs or privileges at their university.

The new government announced at the end of July 2024 that due to concerns from vulnerable groups about how the rules might harm student welfare and risk to minority groups by protecting ‘hate speech’, the new government were stopping the implementation of the Act.  It has been stated that the Education Secretary, Bridget Phillipson, will consider options for the Act, including repeal, in the longer term. 

It has since been reported that this decision not to commence the provisions of the Act is under challenge by free speech groups. They argue that the law was essential to protect free speech on campuses to protect staff and students with a wide range of lawful beliefs, and that it was wrong to say that the Act would have given shelter to hate speech.

The end of VAT exemptions on school fees

Finally, this last weekend, there were many reports of dismay at the government’s decision not only to cease the exemption of VAT on school fees, but to do so from January 2025; i.e part-way through the school year. Whilst I am not aware of a specific challenge to this in the pipeline just yet, these reports suggest that this could be ripe territory for a legal challenge.

The article is written by - Samantha Broadfoot KC, Joint Head of the Public Law Group

This topic was mentioned in the Public law update - back to school webinar which took place on Monday 9 September. A recording of this webinar may be accessed here.