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The first flight attempting to deport asylum seekers to Rwanda has been cancelled at the last minute following a ECtHR ruling that granted an ‘urgent interim measure’ to stop the deportation. This is in contradiction to the UK High Court and Court of Appeal, which found that, while there should be a full review of the policy, the Home Secretary would not be acting unlawfully by deporting asylum seekers in the meantime. The UK Supreme Court refused permission to appeal. The ECtHR stated that the decision was influenced by the UN’s refugee agency, who raised concerns that those being deported may not receive a fair hearing and could be left in unsafe conditions.
The Home Secretary has approved the extradition of Julian Assange to the US. Assange has been charged under the US Espionage Act for publishing leaked documents about the Afghanistan and Iraq wars on his whistle-blowing platform ‘WikiLeaks’ and faces up to 175 years in jail if found guilty. Assange has been in prison since he was removed from the Ecuadorian embassy in London in 2019 after his asylum status was removed. His extradition had previously been blocked for concerns regarding his mental health, but the current decision marks the most important stage in his legal battle. Assange has 14 days to appeal the decision, but his brother expressed that if this is not successful the case will be brought before the ECtHR.
In R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin), Mrs Justice Hill quashed a ruling that the Article 2 general (or systemic) duty has not been potentially engaged by the death of Kianna Patton.
Kianna had been found hanging aged 16 at a time when she was under the care of Specialist Child and Adolescent Mental Health Services with a history of self harm. She was living with a friend, whose mother had let her use cannabis. This caused her mother (the Claimant) significant anxiety, given Kianna’s mental health issues. Her mother sought assistance in relation to Kianna from social workers and Police officers before her death. She believes there were serious failings in the way they responded and in the care S-CAMHS provided to Kianna. Following the Coroner’s ruling that Article 2 was not engaged, a Health Board’s report that was disclosed identified several issues with care delivery and the way that Kianna’s risk had been assessed, in particular, noting that safeguarding screening had not been completed once it was identified that she was no longer living at home.
The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.
In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.
An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.
“Every day in the UK lives are suddenly, brutally, wickedly taken away. Victims are shot or stabbed. Less often they are strangled or suffocated or beaten to death. Rarely they are poisoned, pushed off high buildings, drowned or set alight. Then there are the many who are killed by dangerous drivers, or corporate gross negligence. There are a lot of ways you can kill someone. I know because I’ve seen some of them at close quarters”
These are the words of Her Honour Wendy Joseph QC in the preface to her book Unlawful Killings: Life, Love and Murder: Trials at the Old Bailey”. Until recently Wendy was a judge at the Old Bailey, trying mainly allegations of murder and other homicides. She practised as a barrister for thirty two years, then sat as a full-time judge until she retired earlier this year. Because she no longer sits as a judge she was able to publish this fascinating book which has been described in reviews as describes the book as a “novel”. And indeed it is, a series of interlinked dramatic human stories leading to a close. She writes with great clarity about the technical processes of the law, and the implications of these for the people before her in Court.
In Episode 166 Rosalind English talks to Wendy Joseph about the human stories that are played out in the Old Bailey.
In 1998, people across the island of Ireland overwhelmingly endorsed the Good Friday Agreement, in a historic decision which signalled hope for a post-sectarian, post-conflict future. The UK Parliament responded to this popular mandate by returning devolution to Northern Ireland. On 24 May 2022, the reverse happened: in the face of vehement opposition from Northern Ireland, the UK Parliament voted to clear the second stage of a Bill that would drastically impact efforts to deal with the Northern Ireland conflict.
The Bill: an overview
There are 4 main parts to the Northern Ireland Troubles (Legacy and Reconciliation) Bill. Part 1 defines ‘the Troubles’, traditionally a phrase used to euphemistically describe the violent political and sectarian conflict which lasted for a little over 3 decades in Northern Ireland. Part 2 establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR), charged with (among other things) reviewing deaths and certain other ‘harmful conduct’ and granting immunity from prosecution to individuals in exchange for information about those individuals’ potentially criminal conduct during the Northern Ireland conflict. Part 3 largely ends criminal investigations, prosecutions, civil actions, inquests and inquiries (except in specific circumstances). Part 4 provides for the compilation of histories of the Northern Ireland conflict.
Though the Bill’s provisions are complex, this post is not concerned primarily with those provisions. Instead, in addition to the Secretary of State’s statement (under section 19(1)(a) of the Human Rights Act 1998) of compliance with Convention rights, the Bill is accompanied by (somewhat unusually) a 36-page ‘European Convention on Human Rights Memorandum‘, written by the Northern Ireland Office. This Memorandum provides the views of the UK Government on why the Bill is Convention-compliant and this is what will be explored here.
On Monday 23, the Russian tank commander Vadim Shishimarin was sentenced to life in prison by a court in Kyviv. He previously pleaded guilty to killing Oleksandr Shelypov, 62. Shishmarin’s trial has been closely watched by investigators collecting evidence of possible war crimes to bring before the international Criminal Court (ICC) in the Hague. International law experts will also scrutinise the verdict of the 21-year-old tank commander; a key question arose from the proceedings about how much scope the Kyviv court has now left itself for sentencing Russians for more heinous or numerous offences.
The Independent Review of Children’s Social Care, led by Josh MacAlister, was published on Monday 23 May. The report included more than 80 recommendations and suggested a windfall tax on the 15 largest children’s homes and fostering providers. Projections claim that by 2032 there could be approaching 100,000 children in care costing £15 billion per year. An investigation by The Timeshas demonstrated that many inexperienced or first-time owners of children’s home have opened residences in order to charge as much as £1,000 a day. MacAlister has also encouraged the government to consider adding those with care experience to the Equality Act.
The Gender Recognition Reform (Scotland) Bill has caused controversy in recent years, with opponents raising concerns about how it could affect the rights of women and girls. On Tuesday, Ellie Gomersall – the first trans person to be elected as the president of NUS Scotland – and Malcom Dingwall-Smith, Sportscotland’s strategic partnerships manager, both gave evidence to the qualities, human rights and civil justice committee concerning its effectiveness. The former, asserted the limited powers of the bill to reduce crime in single-sex spaces, and the latter highlighted that the bill would have no impact on a section of the 2010 Act that allows trans people to be barred from the sports of their acquired gender if the governing body deems it interferes with ‘fair competition or the safety of competitors’.
On Thursday, Britain’s equality regulator announced that it has launched a formal investigation into Pontins holiday parks due to continued concerns about discrimination against Gypsies and Travellers. Last year, Pontins owner, Britannia Jinky Jersey Limited, entered into a 12-month contract with the Equality and Human Rights Commission (EHRC), following allegations that the company operated a discriminatory booking policy. On the 18 February the EHRC terminated the contract, judging that Pontins had not taken the required steps to prevent unlawful race discrimination or honour its commitments under the agreements. The EHRC has now launched a formal investigation that will consider whether Pontins has committed unlawful acts under the Equality Act 2010.
On 16 May, the Home Secretary announced in a letter to police forces that she is permanently lifting restrictions on the use of stop-and-search powers under Section 60 of the Criminal Justice and Public Order Act, which give police officers the right to search people without reasonable grounds in an area when they expect serious violence, and to look for weapons before they can be used, or those used in a recent attack. The new changes will lengthen the periods for which the powers can be in force and by which they can be extended, and a lower rank of officer will be able to authorise their deployment. In addition, the officer will now only need to anticipate that serious violence “may” occur, not that it “will” occur. Concerns have consistently been raised around the powers on the basis that they disproportionately affect black and minority ethnic communities. For instance, in the year to March 2021, black people were seven times and Asian people two-and-a-half times more likely to be stopped and searched than white people.
In the first Ukraine war crimes trial since the invasion by Russia, a Russian tank commander has pleaded guilty to shooting dead a 62-year-old civilian. Even in light of the guilty plea, for the suspect to be convicted and sentenced, the three judges hearing the case will have to reach a unanimous verdict. The suspect faces life in jail.
The Queen’s Speech was delivered by Prince Charles on Tuesday, setting out the legislative agenda for the year to come. The controversial Bill of Rights was announced, which would overhaul the Human Rights Act with a vision to ‘restore the balance of power between the legislature and the courts.’ However, more than 50 groups including Amnesty, Liberty, and the British Institute for Human Rights have written to Boris Johnson warning of the ‘significant implications’ of repealing the Act. Other bills in the speech include: a Public Orders Bill (designed to target environmental protesters); a Brexit Freedoms Bill (ending the supremacy of EU law by making repeal easier); and a National Security Bill (tightening up official secrets law).
The first legal action against the UK-Rwanda asylum plan has been launched, based on an Iranian asylum seeker who claims he would face extreme hardship if sent to Rwanda. The challenge is that the scheme breaches international law, the UN refugee convention, and data protection laws. The legal action comes as the UN refugee agency expressed serious concerns that the policy will be taken up throughout Europe.
Voting for the Northern Ireland Assembly took place on Thursday 5 May. This year, for the first time, Sinn Fein looks set to win a majority of the seats. Whether the Democratic Unionist Party agrees to the power sharing arrangement where it is relegated to second place remains to be seen. What continues to be hotly debated is the Northern Ireland Protocol, put in place to avoid a “hard border” between Northern Ireland and Ireland which of course is still part of the EU single market.
But the Protocol isn’t only about trade. Under Article 2 the UK government has made an important commitment regarding the rights of Northern Ireland’s citizens to equality, non-discrimination, transparency and a range of other rights protected under European Union law. Article of the 2 Protocol is a very new provision, applying the acquis communitaire of the CJEU to Northern Ireland, even though NI is part of post Brexit EU.
In our latest episode Rosalind English meets UKHRB Northern Ireland correspondent Anurag Deb in Belfast two days after the elections to discuss what this EU rights provision means for the citizens of Northern Ireland.
On 2 May, a draft majority opinion of the Supreme Court of the United States was leaked, suggesting that the court has voted to strike down the landmark decision of Roe v Wade and sparking widespread anger. In the opinion, Justice Samuel Alito states that “Roe was egregiously wrong from the start” and that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This is the first time in history that a draft decision has been disclosed publicly while a case was still pending. On 3 May, Chief Justice John Roberts confirmed the authenticity of the decision, which would remove federal constitutional protection of abortion rights and leave the decision in the hands of each state.
Under a new pilot scheme, victims could have the right to attend full Parole Board hearings from as early as next month. The Parole Board will also be required to take into account victims’ submissions and victims will be allowed to ask questions. Currently, victims can ask to read a statement in person but are not allowed to hear the rest of the evidence.
Police are investigating a gathering attended by Sir Keir Starmer and Angela Rayner in April 2021. Having initially decided to take no action, Durham Constabulary has now begun conducting an investigation into potential breaches of Covid-19 regulations in light of “significant new information”. Durham Constabulary had previously stated that it had a policy against retrospective Covid fines, after allegations of lockdown breaches by Dominic Cummings.
On 4 May, foreign secretary Liz Truss announced in a press release that there will be a ban on services exports to Russia, covering services such as accountancy, consultancy and PR advice. Lawyers, however, will still be able to service Russian clients.
The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Issues
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
Last week saw an influx of legislation approved before Parliament’s Thursday end-of-session deadline. Some include:
The Nationality and Borders Act. Three of the most controversial provisions are: to allow asylum claims to be handled at overseas facilities (offshoring asylum); criminalising those who knowingly arrive in the UK illegally; and treating asylum seekers differently depending on how they enter the UK.
The Police, Crime, Sentencing and Courts Act. Another turbulent journey to Royal Assent, this grants police extra powers to quash disruptive demonstrations. This is done by increasing restrictions on protests where ‘noise’ could cause ‘serious disruption’, and by criminalising activity which causes ‘serious distress, serious annoyance or serious inconvenience’ without ‘reasonable excuse’.
The Judicial Review and Courts Act. This was passed after a last-minute amendment proposed by the Law Society to remove a statutory presumption. The presumption would have dictated to judges what remedies they could award in place of judicial discretion.
An independent review by Jonathan Hall QC has concluded that terrorists in prison ‘enjoy high status’ within a culture of fear and violence across English and Welsh jails. The review details examples of ‘Islamic gang-like activity’, exacerbated by the 27% cut in staff between 2010 and 2017. A separate report by Hall also discovered that the Government does not keep a record, ‘officially or unofficially’, of the number of prosecuted terrorists returning to the UK from Syria.
In other news:
Insulate Britain have followed up on their threats last week to disrupt hearings by glueing themselves to magistrates court furniture. Dr Diana Warner superglued her hand to the glass dock and ignored court instructions, instead paying tribute to the activist who died after setting himself on fire outside the US Supreme Court.
Victims of sexual offences are subject to the longest waiting period on record, with an average of 9 months for cases to go through Crown Courts. Data also demonstrates that the speed of cases depends on their location, with cases in Leicester taking the longest to complete (on average 15 months).
The government has come in for a certain amount of criticism about its deal to allow migrants who arrive in the UK illegally to be sent to Rwanda for assessment of their asylum applications.
Priti Patel’s Rwanda asylum plan has been challenged in Parliament by Theresa May, who questions its ‘legality, practicality, and efficacy’, as well as its potential for increasing the trafficking of women and children. The legality of the scheme, which proposes to send those with rejected UK asylum claims to Rwanda, has been defended by Patel, who points to immigration rules introduced last year. However, the backlash has now infiltrated the Home Office itself, with staff threatening to go on strike over concerns of illegality and racism. This prompted the permanent secretary, Matthew Rycroft, to reassure the civil service that implementing it would not be ‘racist or illegal’. Rycroft himself, however, doubts whether the plan would provide taxpayer value for money, and has refused to sign it off.
In Episode 163, Rosalind English talks to Ariane Adam and Tatiana Kazim of the Public Law Project about automated decision making (ADM) in the public sector, the problems of transparency and automation bias where these decisions affect people’s rights. This interview was held shortly after the House of Lords Justice and Home Affairs Committee published its report on new technologies and the application of the law.
We discuss a number of issues, in particular those that arose in the Post Office “Horizon” accountancy scandal, and the case of R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438. The defendant, responsible for appraising clinical benefits and cost-effectiveness of health care interventions, had refused to provide the claimant with a fully executable version of the model it used to assess the cost-effectiveness of the claimant’s drugs. The Court of Appeal held that procedural fairness required release of the fully executable version of the model [66]. It rejected the defendant’s claims that disclosure would undermine confidentiality or be overly costly, noting at [65] that the court should be ‘very slow to allow administrative considerations of this kind to stand in the way of its release’.
The PLP has also published a summary of the JHAC report here.
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