Round Up: detainees, Grenfell, and discrimination in UK pension law.
2 July 2018
The Intelligence and Security Committee found that the UK had allowed terrorism suspects to be treated unlawfully.
Following a three-year investigation, it published two reports examining the extent to which Britain’s intelligence agencies were aware of the mistreatment of suspects. The reports found no evidence that British officers took part in the torture themselves. Neither was there clear evidence of a policy which sought to deliberately overlook mistreatment.
However, the Committee found that British intelligence officers had witnessed prisoners being tortured. They had seen detainees being mistreated at least 13 times, were told by prisoners that they were being abused at least 25 times and were informed of ill-treatment by foreign agencies 128 times. British agents also threatened detainees in nine cases.
Despite being aware of the mistreatment from an early stage, UK agencies continued to provide questions for interrogations. The Committee chairman, Dominic Grieve, said that the UK had tolerated ‘inexcusable’ actions.
Furthermore, British agencies assisted in the rendition of suspects to countries with ‘dubious’ human rights records. MI5 and MI6 subsidised, or offered to subsidise, the rendition of individuals on three occasions. They also provided information for the rendition of 28 people, proposed/ agreed to rendition in 22 cases and failed to stop the rendition of 23 others (including cases involving British nationals).
The Committee also criticised the way Downing Street prevented it from speaking to a number of politicians about the issue, who would otherwise have been key witnesses. In particular, the committee was not allowed to speak to the then Home Secretary (David Blunkett, who was in charge of MI5) and the then foreign secretary (Jack Straw, in charge of MI6 and GCHQ). The Committee also expressed grave concern over the continued absence of a policy determining whether and how UK personnel can be involved in rendition.
The Committee’s findings have renewed calls for an independent judge led inquiry into the issue.
In Other News….
- The first successful conviction under the Modern Slavery Act occurred this week. Ms. Iyamu, a London-based nurse, was found guilty of arranging or facilitating travel for sexual exploitation. Ms. Iyamu had trafficked five Nigerian women into Germany to work as prostitutes. She also forced the women to take part in ‘voodoo’ rituals. This included making them swear oaths to hand over money, forcing them to eat chicken hearts and drink blood containing worms. Her husband was acquitted of doing acts intended to pervert the course of justice. Ms. Iyamu will be sentenced on the 4th (The BBC reports here).
- Uber has been granted a short-term license to operate in London. Its licence was originally suspended by Transport for London (TfL) following concerns about passenger safety. Uber had been particularly criticised for flaws in its background checks on drivers, together with its systems of obtaining medical certificates and reporting criminal offences. Uber has made changes in order to address these concerns, including reporting crimes directly to the police rather than logging them with TfL. The hearing took two days and Chief Magistrate Emma Arbuthnot ordered Uber to pay TfL’s legal costs. Uber has also been placed on ‘prohibition’ for 15 months. This means that that the renewal of its license is subject to it following a number of strict rules. Compliance will be monitored by TfL. (The Guardian reports here).
- The Grenfell Inquiry has continued this week. Firefighters have been giving evidence about the blaze, which killed 71 people. One firefighter, David Badillo, described how he undertook a ‘personal rescue mission’ to save a 12 year old girl. It was ultimately unsuccessful. He also said that the communication sets which had been issued were ‘useless’. Concern has also been raised about the initial response to the fire. The firefighter initially responsible, Michael Dowden, told the inquiry he had ‘no previous knowledge’ which could assist his decision making. He did not consider evacuating the tower, describing how he felt ‘helpless’ in the face of events. The expert Dr Barbara Lane had previously told the hearing that the ‘stay put’ advice failed within half an hour. (The BBC reports hereand here).
In the Courts:
- MB v Secretary of State for Work and Pensions: The CJEU found UK pension law discriminated against a transgender woman. Under s.4 of the 2004 Gender Recognition Act, the claimant could only obtain a gender recognition certificate if she first annulled her marriage. Since the claimant wished to remain married, she was unable to change her gender. As a consequence of this, at the age of 60 she was refused the female state pension (though she could claim the male state pension at 65). The CJEU noted the requirement that a person’s marriage be annulled before they were eligible for a state pension only applied to persons who have changed their gender. This amounted to direct discrimination based on sex, and thus s.4 of the Act was contrary to EU law. This discrimination could not be justified, since the purpose of the marriage annulment condition (namely avoiding marriage between persons of the same sex) is unrelated to the retirement pension scheme.
- Conway, R (on the application of) v The Secretary of State for Justice & Ors: The Court of Appeal rejected a challenge to s.2 of the Suicide Act 1961, which imposes a blanket ban on assisted suicide. The claimant was Mr Conway, who has a form of motor neurone disease and wishes to end his life. He proposed an alternative scheme for assisted dying containing certain safeguards and conditions (including requiring the approval of a High Court judge). The court held that this scheme was problematic and raised policy issues which ought properly to be addressed by Parliament. This view is cemented by the fact that assisted dying is unlawful in the great majority of Convention countries. The court further held that s.2 of the Suicide Act 1961 is a necessary and proportionate interference with s.8 of the ECHR. There was no error with the Divisional Court’s finding that the prohibition advanced three legitimate aims. The court rejected Mr Conway’s submission that, by adopting the balance struck by Parliament, the Divisional Court had abdicated their responsibility to make a proportionality assessment themselves. It was entirely proper to give the views of Parliament significant weight. The appeal was dismissed and Mr Conway intends to take the case to the Supreme Court.
- B v The General Medical Council: An appeal against an injunction was allowed. In light of a patient’s complaint, the General Medical Council (GMC) commissioned an expert report into a doctor’s fitness to practise. The patient asked for a copy of the document, but the doctor did not consent. The GMC undertook a balance of interests test and concluded that it should pass the report to the patient. The doctor successfully obtained an injunction, which the GMC appealed. The Court of Appeal held that there was no rebuttable presumption against disclosure in a document containing ‘mixed personal data’ (here, that of the patient and doctor). Rather, a balance must be struck between the competing interests of the requester and objector, both of which are contained within Article 8 ECHR. There was no general presumption that a person’s request should be devalued because they were seeking information which might assist them in litigation. The Court further held that the trial judge erred by relying on other factors (such as the doctor’s express refusal of consent). Irvin LJ dissented on all these points. He found that there is a presumption against the disclosure of ‘mixed personal data’; the prospect of the patient launching litigation against the doctor is a ‘weighty factor’ when considering whether to release data; and that the GMC had not properly considered the doctor’s privacy rights.
On the UKHRB
- Martin Downs has written an article on the recent Supreme Court ruling on Equal Civil Partnership. He also wrote an earlier article outlining the background here.
- There are several new episodes of Law Pod UK: the first is on Brexit (featuring Catherine Barnard), and the remainder are highlights from a seminar on Inquiries and Inquests.
- Michael Rhimes explains two recent judgements from the Canadian Supreme Court concerning religious freedom.
- Jeremy Hyam QC posted about the medical negligence case of R (Parkinson) v. HM Senior Coroner for Kent and Others.
- Michael Paulin considered the Pimlico Plumberscase, in which the Supreme Court ruled on the employment status of a contractor.
- ALBA Summer Conference, Saturday 21st and Sunday 22nd July 2018 at St John’s College Cambridge. More information here.
- Reform of the Parole Board, HRLA, July 3rd at Matrix Chambers. More information here.
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