The Round-Up – chemical weapons and Supreme Court judgments
10 April 2017
Chemical attacks in the northern Syrian province of Idlib have left at least 80 dead and 100 more injured. It has been reported that in a raid last Tuesday morning Syrian government planes exposed countless civilians in the town of Khan Sheikhun to toxic gas, suspected to be sarin. While Syrian President Bashar al-Assad denies claims that he is the author of these attacks, outrage has erupted across the world, which culminated in US President Donald Trump commencing airstrikes on Syria.
The law on chemical weapons
Chemical weapons are banned under international law. The Geneva Protocol in 1925 was one of the first major agreements between states condemning the use of such weapons during war. This was followed by the Chemical Weapons Convention in 1993, which prohibits their production, stockpile and use. It is an international war crime to use them.
Assad had previously been accused of using chemical weapons in 2013 in an attack on Damascus. Death estimates varied significantly: while the UK-based group Syrian Observatory for Human Rights (SOHR) confirmed at least 502, the opposition alliance estimated it to be in excess of 1,300.
In 2014 the Organisation for the Prohibition of Chemical weapons (OPCW) announced that it had received the last of the Syrian Government’s stockpile of chemical weapons, but Ahmet Uzumcu, Director-General of OPCW, did admit that they had only received the arsenal that Syria had admitted to possessing; he could not certify that Syria did not in fact possess any more.
The fact that Syria had retained such weapons became apparent this week. While soil samples have only just been sent to western intelligence agencies, their use in the Idlib raid has nonetheless been confirmed by autopsy results of victims brought to Turkey from Syria. The Guardian has also since released a report from the site of the attack.
What has the response been?
At a press conference on Thursday Syria’s foreign minister Walid Muallem fiercely denied the accusations: “I stress to you once again: the Syrian army has not, did not, and will not use this kind of weapons – not just against our own people, but even against the terrorists that are targeting our civilians indiscriminately.”
Russia has sought to defend Assad’s regime by deflecting the blame onto Syrian rebels: it claims that a government shell hit a factory where the rebels were manufacturing chemical weapons. Muaellem repeated this story at the press conference, but rebels hotly deny any such claim. Moreover, Russia itself has come under criticism this week: the Syrian Civil Defence, a rescue group also known as the White Helmets, accused Russian airplanes of bombing a main hospital in Maaret al-Numan, also in the province of Idlib, only the day before the chemical attack.
An emergency meeting was called at the UN to discuss the attack, but elsewhere Trump decided to take matters into his own hands. He declared that the attacks on children had changed his attitude towards Syria and Assad, and in retaliation launched a cruise missile strike at Syria. Targets of the airstrike have so far included the airbase from which the chemical weapons were allegedly launched from. Although the move has been met with support, many civilian deaths are likely to follow.
IN THE NEWS: bail, deliveroo and the tampon tax
A 28-day limit on police bail before charge came into effect last Monday through the Policing and Crime Act 2017. Before now the pre-charge bail has typically been used by police officers when they have finished questioning a suspect but the investigation is still pending. There had, however, been no legal limit on the length of time a suspect could be retained on bail. Home Secretary Amber Rudd recognised that such a bail was “being imposed on people for many months, or even years, without any judicial oversight” and has hailed the reforms as bringing about “much-needed safeguards”. On the other hand, Andy Ward, deputy general secretary of the Police Federation of England and Wales, has warned that the limit could prove unrealistic in complicated investigations, such as those involving cyber-crime or forensic tests; yet under the new legislation bail can still be extended for an additional three months in such cases, as long as authorised by a senior police officer or a magistrate.
The Guardian report that they have seen a six-page document distributed to managers at Deliveroo encouraging them to use a vocabulary in line with the company’s persistent claims that its riders are self-employed. Managers are encouraged to describe riders as “independent suppliers” rather than “employees” or “workers”, as working “with” rather than “for” the company, and as “being available” rather than “taking shifts”. Jason Moyer-Lee, general secretary of the Independent Workers Union of Great Britain (IWGB), was among those who slammed this new strategy: “[t]his document is further evidence of what the IWGB has been saying all along. Deliveroo is operating a charade with regard to its employment practices. It has even found it necessary to create a whole new vocabulary to hide what is blindingly obvious to any objective observer.” Recently there has been a wave of successful claims from similar “gig economy” workers, such as those working for Pimlico Plumbers, Uber, CitySprint and Excel. No doubt encouraged by others’ success, 20 riders of Deliveroo are apparently planning to bring legal action with regards to their employment rights, and law firm Leigh Day claims it has 200 more preparing to take action too.
The 5% tampon tax elicited yet further criticism in the past week when it emerged that among those organisations benefitting from the tax is Life – a charity that seeks to encourage women to choose ‘life’ over abortion. Read more about it over at Rights Info.
IN THE SUPREME COURT:
Essop and others v Home Office: the Supreme Court held that s. 19 of The Equality Act 2010 did not require that a claimant alleging indirect discrimination should prove the reason why an apparently neutral provision, criterion or practice (“PCP”) put the affected group at a particular disadvantage. Mr Essop was the lead appellant of a group employed by the Home Office. In order to be eligible for certain promotions the employees had to pass an assessment which, according to a report commissioned by the Home Office, produced lower pass rates among Black and Minority Ethnic candidates and older candidates; the reason for this is unknown. Lady Hale noted that none of the various definitions of indirect discrimination featured any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others, but rather it is sufficient that it in fact does. The appeal was therefore allowed and the claims remitted to the Employment Tribunal.
Naeem v Secretary of State for Justice: alongside Essop was heard the appeal of Mr Naeem whose appeal by contrast was dismissed. Mr Naeem is an imam who works as a chaplain in the Prison Service. He had been employed on a sessional basis only, because prior to 2002 the Prison Service believed that there were not enough Muslim prisoners to justify employing Muslim chaplains on a salaried basis; he had since become salaried. The Prison Service operated an incremental pay scale, and so, since no Muslim chaplains had been employed on a salaried basis prior to 2002, their average basic pay was £31,847 whereas the average basic pay for Christian chaplains was £33,811. The reason for this was apparent, and could be justified provided the aim in doing so was legitimate and proportional. The Employment Tribunal had held it to be so, and this finding should not be disturbed by an appellate court. The appeal was therefore dismissed.
Isle of Wight Council v Platt: the Supreme Court clarified s. 444(1) of the Education Act 1996, whereby if a child ‘fails to attend regularly’ at their registered school then the parent is guilty of an offence, by declaring that ‘regularly’ means ‘in accordance with the rules prescribed by the school’. Mr Platt took his daughter out of school without permission in April 2015 to take her on holiday to Disneyland, causing her to miss seven days of school. He was subsequently given a fine which he challenged on the basis that his daughter otherwise had an attendance record of 92.3%. The Court questioned whether ‘regularly’ could mean ‘sufficiently frequently’, but decided that such an approach would be “a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves”. Lady Hale rounded off her speech by noting that the mother of the child in question (whose parents are separated) had done the very same thing in February, but had simply paid the fine. Perhaps Mr Platt is now wondering whether the court battle was worth it for a £60 fine; he might also have done a disservice to many parents, who may face face stricter adherence to the rules from schools in light of this decision.
ELSEWHERE IN THE COURTS:
Akinyemi v Secretary of State for the Home Department: the Court of Appeal held that an appellant’s presence in the UK could not be described as ‘unlawful’, notwithstanding the fact that he had no positive leave to remain nor nationality, and thus his right to a private life should be considered in assessing a deportation order. The appellant is a Nigerian national by virtue of his parents but he was born in the UK and has never left the country. On account of legislation at the time he was not automatically entitled to British citizenship and had since failed to apply for it. Following a series of convictions (totalling 20) over the course of 13 years for various drugs, arms, dangerous driving, and conspiracy offences, the Home Office sought to deport him to Nigeria. The Court of Appeal held that the Upper Tribunal was wrong to direct itself that the Nigerian appellant’s presence in the UK since birth was unlawful, and that as such little weight should be attached to his private life. This was all the more pressing given that his private life was a crucial factor in the particular facts of this case: the appellant had been in the UK all his life, and had no significant social or cultural links with Nigeria. The case has been remitted to the Upper Tribunal for a re-hearing.
The High Court has allowed an application from Rosslee Charles and stayed his extradition to Turkey. Charles, who is gay, was accused of homosexual rape in Turkey and convicted in his absence in 2006. Prior to his conviction he was kept in a Turkish jail between August 2004 and January 2005, where he was beaten, called derogatory names, made to sleep in a toilet, and given contaminated food; he also claimed that he was forced to convert to Islam and read the Arabic text aloud – during which he would be beaten if he had made a mistake. The Turkish Government had given assurances that on his return he be would held in a specific wing in a prison in Istanbul designed for LGBT inmates. Any assurances, however, will no doubt have been weighed against the background of the failed coup last summer and the growing concern over human rights abuses in Turkey ever since. The reasons for blocking the extradition will follow at a later date.
by Poppy Rimington-Pounder
Platt is a good result: taking children out for a cheaper holiday disrupts the education of the whole class when teachers have to help them catch up. It is interesting that the Mr Platts of this world rely on teachers not to take their own children on holiday when it is cheaper to fly!
On a related note: I once chaired a magistrates’ court where a couple were accused of not sending their children to school. His defence was that he was forbidden by order of the County Court (and no doubt for good reasons) to have any contact with the children or the mother throughout the relevant time. The LEA submitted that the offence was one of strict liability and that it was not reasonable that the mother should bear all the blame.
We decided that he could not be guilty of not doing something the doing of which would constitute contempt of court and that by applying for the order the mother had accepted the entire responsibility for seeing that the children went to school. So we dismissed the charge against him. The LEA lawyer spoke of an appeal by case stated but did not pursue it: pity, I would have enjoyed drafting the case! I still think we were right.
You must log in to post a comment.