The Weekly Round-up: Liberalisation in Northern Ireland and a Report on the Digital Welfare State

28 October 2019 by Rosalind English

In the news

This has been a turbulent week for Brexit. Despite gaining approval for his adapted version of Theresa May’s deal, Boris Johnson has been unable to secure approval for his Brexit timetable, with a narrow consensus in Parliament that the deal requires longer scrutiny. Meanwhile, EU leaders have granted permission for a further extension to Article 50 until 31^st January 2020, in response to the letter sent by the Prime Minister to comply with the Benn Act. Leaving on October 31^st is no longer possible; Parliament is preparing for a December general election.

Another important deadline elapsed this week. On Monday 21^st October, the Northern Irish executive had still failed to restore any effective power-sharing arrangement (it has been suspended since 2017). As a result, Stella Creasy MP’s amendment to the Northern Ireland (Executive Formation etc) Act 2019 came into force, legalising abortion and same-sex marriage in Northern Ireland. In terms of abortion, this repealed sections 58-59 of the Offences Against the Person Act 1861, which criminalise abortion, and were only still in force in Northern Ireland; a consultation has now begun to achieve effective access to abortion services within Northern Ireland by March 2020. As to same-sex marriage, Westminster regulations will require the provision of same-sex marriages and civil partnerships within Northern Ireland from January 2020 onwards.

Despite this ray of hope for social progress in the UK, an array of information released this week reminds us of the problems this country still has to grapple with. A report by the Equality and Human Rights Commission concludes that universities are ‘oblivious’ to the scale of racial abuse and harassment on campus, and overly optimistic about their abilities to deal with it. According to the report, 24% of BAME students in the UK have experienced racial harassment on campus; although 43% of universities believed all incidents against students were reported, the report found that 2/3 of students had not reported their experiences. Secondly, data released this week on hate-crimes makes for troubling reading, highlighting a 25% increase in sexual orientation hate-crimes, a 37% increase in hate-crimes against the transgender community, a 14% increase in disability hate-crime, and an 11% increase in race hate-crime. Thirdly, a report by the cross-party Education Committee highlighted how government policies are failing children with special educational needs (SEN) and disabilities, noting a serious disconnect about the ambition of government educational reforms and the funding made available.

Looking to the future, the UN Special Rapporteur on Extreme Poverty and Human Rights, Philip Alston, released a report this week on the ‘Digital Welfare State’. His report concludes that the world is ‘stumbling zombie-like into a digital welfare dystopia’, where the private sector dominates the new technologies of digital welfare, operating in an ‘almost human-rights free zone’. In this dystopia, we have algorithms that replicate the biases of their designers; an excessively free tech market that inevitably disregards human rights considerations; a blurring of private and public technologies of surveillance, together with an entangling of private and public data silos; and a high risk of new technologies of surveillance being used to exploit and/or harass the poor, coercing them to surrender their rights to privacy and data protection in order to receive social benefits.

In the long-term, the report explains, we risk entering a system where the digital welfare state has morphed into a fully predictive enterprise, and its algorithms seek to manipulate and control our social behaviours, such as sexual activity, use of alcohol or drugs, having children, and virtually any other preference one can think of. To avoid the dystopia he imagines, Alston recommends that the focus of digital welfare technologies should shift from an obsession with ‘fraud, cost savings, sanctions, and market-driven definitions of efficiency’ towards improving the standard of living for the vulnerable and disadvantaged.  

The Public Law Project has released a press release (15 October) regarding the new Immigration Bill which represents a change in Government policy for the appeal rights of EU citizens who are refused settled status.

The new Immigration Bill is set to give EU citizens and family members the right to appeal decisions made through the EU Settlement Scheme, even if the UK leaves the EU without a deal.

Prior the Queen’s Speech, the Government’s position was that the right to appeal would be contained in the Withdrawal Agreement Bill and would only have effect in the event of a deal. This was because an appeal right was required by the draft Withdrawal Agreement negotiated with the EU.

But the briefing on the Queen’s Speech briefing confirmed that an appeal right will be written into the Immigration and Social Security Co-ordination Bill, which means that it should be guaranteed regardless of whether there is a deal with the EU.

Dr Joe Tomlinson, PLP’s Research Director, said:

Decisions made through the EU Settlement Scheme will have an enormous impact on the lives and careers of millions of EU citizens and their families. When so much is at stake, it is only fair that those affected should have a right of appeal. That right should exist regardless of whether the UK leaves with or without a deal.

PLP has long argued that there should be an appeal right for applicants to the scheme no matter how the UK leaves the EU. Yesterday’s Queen’s Speech indicates that the Government now accepts that position.

For further information, please see Public Law Project’s ‘No Deal, No Appeal’ briefing and proposed amendment to Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19.

In the courts

• Aburas, R. (on the application of) v London Borough of Southwark: the applicant was a stateless Palestinian suffering from bipolar disorder and depression, who applied to Southwark council for care and support under the Care ACT 2014, and was refused it. Southwark argued that the proper route for the applicant was to seek relief from the Home Secretary and Asylum Support, being in circumstances of destitution as he was. Michael Fordham QC agreed, concluding that there was no ‘imminent prospect of serious suffering’ caused or aggravated by refusal to provide social worker support, and therefore no violation of Article 3 or Article 8 ECHR.
• PK (Ukraine) v The Secretary of State for the Home Department : the applicant had applied for asylum, having evaded conscription in Ukraine; his claim was rejected in the Upper Tribunal, on the basis that (i) there was no real risk of prosecution, and (ii) the fines, probations, and suspended sentences the applicant might face would not count as ‘persecution’  under the Geneva Convention. The High Court found that the Upper Tribunal had devoted insufficient attention to this second question, of “whether a draft evader facing a non-custodial punishment for failing to serve in an army which regularly commits acts contrary to [international humanitarian law] is entitled to refugee status”, which was a question of ‘overarching importance’. The case was therefore remitted to the Upper Tribunal to consider the question in greater detail, in light of background documents provided to the court by Amnesty International, the US State Department, and the UN High Commission on Human Rights.  
• Imam, (R on the Application Of) v Secretary of State for the Home Department: the appellant worked as a chef at Alishaan Indian restaurant in West Sussex. His application for leave to remain had been refused on the basis that his job did not qualify him to remain as a Tier 2 (General) Migrant under the Immigration Rules. This was on the basis of an exclusion in Appendix K of the Rules for chef jobs in ‘an establishment which provides a take-away service’. The appellant argued that (i) the exclusion only covered restaurants which primarily provided take-aways, and (ii) if it covered all restaurants offering take-away, the exclusion was unreasonable and therefore invalid. In dismissing the appeal, the court held that (i) the exclusion did indeed include any restaurant providing take-away services, and (ii) the exclusion was not unreasonable – this was an acceptable heuristic for the Home Secretary’s legitimate goal of identifying only the most skilled chefs, i.e. the top 5-8%, as take-away chefs were far less associated with the highest levels of culinary skill.
• BBC (R on the application of) v Newcastle Crown Court and Chief Constable of Northumbria Police: the BBC challenged an order under s.9 and Schedule 1 of the Procedure and Criminal Evidence Act 1984 (PACE) to provide an off-air interview with a footballer alleging sexual abuse against his former coach. This involved consideration of the ‘access conditions’ for evidence under Schedule 1 Paragraph 2 of PACE. The court held that the evidence of the interview was clearly requested ‘for the purposes of a criminal investigation’ and was ‘likely to be of substantial value’, but found that it had not been reasonable to believe that the material was ‘likely to be relevant evidence’, i.e. admissible in evidence at trial. The correct test was whether the evidence was immediately admissible, not whether it might become admissible in future, following Lord Taylor in R v Derby Magistrates Court ex parte B. The court therefore made a declaration that the production order had been unlawful.  

On the UKHRB

• Conor Monighan provides part 3 of his review of the papers presented at the Administrative Law Bar Association Conference 2019
• Alice Irving discusses the career of Lady Hale, President of the Supreme Court