The Weekly Roundup: The Women’s Manifesto, Assisted Suicide, Life Sentences, and Citizenship Appeals

25 November 2019 by Rosalind English

In the news

With an election on the horizon, a coalition of 29 women and human rights organisation has published a manifesto for women and girls. Their stated goals are to “end violence against women and girls”; “secure women’s equal representation in politics”; “promote equality in the workplace and in the home”; “invest in public services”; and “lift women and children out of poverty”.  To achieve these goals, they propose measures including a new ‘Violence Against Women and Girls’ bill to lay before Parliament; funding for high-quality sex and relationships education; improvements to the criminal justice system regarding allegations of rape and sexual assault; equal pay; increased maternity pay and maternity allowances; an end to pregnancy discrimination; and a strengthening of the law on sexual harassment at work, creating a duty on employers to prevent harassment from occurring. The manifesto is available here.

The backlash against internet intermediaries and ‘surveillance capitalism’ continues this week. Amnesty International have released a report entitled ‘Surveillance Giants’, which analyses in detail the human rights threats posed by Facebook, Google, and other technology corporations. The report is available here. Meanwhile, in the courts, Singh LJ granted Ed Bridges permission to appeal the facial recognition judicial review which he lost in September, noting that Mr Bridges’ appeal had a reasonable prospect of success.

Parents in Oxford have won the right for a secular alternative to traditional religious worship in schools, in a legal battle funded by Humanists UK against the Oxford Diocesan Schools Trust, the Guardian reports. The parents say that other schools will follow suit, while the Oxford trust insists this was a pragmatic decision to avoid excessive costs. The Department of Education has emphasised that this was only a settlement between the parents and the school, and has no implications for the law more widely.  

Finally, in the midst of the various parties’ passionate electoral pledges about the NHS, a report was leaked this week detailing catastrophic failings at Shrewsbury and Telford NHS Trust. The findings have been described as ‘the largest known maternity scandal in the UK, by far’, stretching over 40 years. It appears that the trust was guilty of countless avoidable deaths, as well as long-term failures in respect of informed consent for mothers, a lack of transparency and communication with bereaved families, and a lack of kindness and respect to parents and families. The report was obtained by the Independent, and is discussed in detail here.

In the courts

This week saw two important human rights decisions. These concerned assisted suicide and the life sentence regime for foreign prisoners:

• Newby, R (on the application of) v The Secretary of State for Justice: Philippe Newby, a longtime sufferer from motor neurone disease, wants to end his life. He applied for a declaration of incompatibility under s.4 HRA 1998 in respect of the law on assisted suicide in s.2(1) Suicide Act 1961. He argued that it was incompatible with Articles 2 and 8 ECHR; a blanket ban was disproportionate. In rejecting the application, the court reiterated the position reached in Nicklinson, Conway, and T that it is ‘institutionally inappropriate’ for the court to rule on a matter such this. In light of the ECtHR’s approval of UK law in Pretty v UK (2002) and Nicklinson v UK (2015), it is for Parliament to change the law on assisted suicide. As Irwin LJ and May J explained, “there is no consensus to be gleaned from evidence…the private views of judges on such moral and political questions are irrelevant, and spring from no identifiable legal principle.” Considering Parliament’s rejection of any change to the law, in the form of the Assisted Dying (No. 2) Bill 2015, the court was bound to refuse Mr Newby’s application.
• Akbar, R (on the application of) v The Secretary of State for Justice: this case related to the sentencing and parole regime for life sentence prisoners subject to deportation orders in respect of which they are ‘appeal rights exhausted’ (ARE). For ordinary life sentence prisoners, the SSJ has the power to move them from higher to lower security condition prisons, until they eventually reach ‘open conditions’. However, this power was abolished by the SSJ in respect of ARE prisoners in 2014, in the form of the new rule 7(1A) of the Prison Rules 1999. The claimant, an ARE prisoner, challenged this change to the law on the grounds that (i) it violated Article 14 ECHR, being discriminatory in respect of Articles 5 and 8, and (ii) it was irrational. The court rejected his claim on both grounds. Rule 7(1A) had a legitimate aim, was rationally connected to that aim, and could not be achieved by a less intrusive measure. A different rule would deprioritise domestic prisoners, and lead to an increased risk of ARE prisoners absconding. As such, the rule was rational, and did not violate Article 14.  

There were also appeals relating to deportation of foreign criminals and deprivation of citizenship:

• Secretary of State for the Home Department v KF (Nigeria): a deportation order in respect of KF, a Nigerian citizen convicted of burglary and robbery, had been overturned by the First-tier Tribunal and Upper Tribunal on the basis of s.117C(5) of the Nationality, Immigration and Asylum Act and Rule 399 of the Immigration Rules. KF had children based in the UK, and the lower courts considered this amounted to a ‘genuine and subsisting relationship’ in respect of which it would be unduly harsh to deport KF to Nigeria. The High Court overruled the lower courts. In so doing, the court echoed the very recent case of SSHD v PG (Jamaica), stressing that the harshness required under s.117C(5) must be beyond what would necessarily be involved for the children of a foreign criminal – i.e. mere deprivation of shared parental support would not be enough. However strict it might seem, the will of Parliament must be respected, per Hickinbottom LJ in PG.
• CI (Nigeria) v The Secretary of State for the Home Department: CI is a Nigerian national, who was seriously abused by his mother, and taken into care at 15. He had committed a series of thefts and robberies, and was diagnosed with a serious ‘depressive disorder’ with ‘some post-traumatic traits’. The Upper Tribunal had upheld the Secretary of State’s deportation order. The High Court overruled this decision. In so doing, the court considered the criteria for ‘Exception 1’ under s.117C(4) of the NIAA 2002. Although CI probably had not on balance been lawfully resident for ‘most of his life’, the court noted that he had been ‘socially and culturally integrated’, on the basis that his social and cultural identity was formed almost entirely in the UK, and he had maintained some academic success and romantic and family relationships; and that there were ‘very significant obstacles to reintegration’ in Nigeria, as he would be too psychiatrically unwell to access mental health care in Nigeria. Accordingly, the UT could reasonably have decided that there were very compelling circumstances such as to outweigh the public interest in deporting CI, under s.117C(6). The case was therefore remitted to the UT for a re-hearing.
• The Secretary of State for the Home Department v E3 & Anor: The Secretary of State (SS) appealed a decision by the Special Immigration Appeals Commission (SIAC) to overrule her orders depriving two individuals of citizenship under s.40(2) of the British Nationality Act 1981. Both individuals were Bangladeshi citizens who had turned to Islamic extremism. The court was asked to consider whether the SS had been precluded from making the orders, on the basis that she was making the two stateless (under s.40(4)). The crucial piece of evidence for the SS was a ‘note verbale’ received from the Bangladeshi Ministry of Defence regarding the practice of Bangladeshi law, which appeared to indicate the two might not become stateless. In overruling SIAC’s decision, the court noted that SIAC had had a confused and inconsistent approach to the burden of proof, confusing the legal and evidential burdens. It was for the Secretary of State to prove that she was ‘satisfied’ that the individuals would not become stateless, and the burden then shifted to those individuals to prove otherwise. Further, SIAC had ‘mischaracterised’ the note verbale as ‘extra-official’, and it should have been given greater weight. The case was remitted to a differently constituted SIAC to be re-decided.  

In the ECtHR

• Razvozzhayev v Russia and Ukraine and Ukraine and Udaltsov v Russia : this case related to protests in Moscow in 2012, led by the supporters of opposition leaders Boris Nemtsov and Alexei Navalny, and actions taken against the applicants in the aftermath, including house arrest, abduction from asylum in Ukraine, and transfer to a penal colony in Krasnoyarsk. The court found an array of violations of Articles 3, 5, 6, 8, 11, and Article 1 Protocol 1 in respect of these actions by Russia and Ukraine.
• Nejdet Atalay v Turkey: a Turkish citizen was involved in a demonstration at a funeral for four members of the PKK (Workers’ Party of Kurdistan), a terrorist organisation. As a result, he was sentenced to ten months’ imprisonment under the Turkish criminal code. The court held that this was a violation of his rights to freedom of expression under Article 10 ECHR, and was neither proportionate nor necessary in a democratic society.
• Yurtdas and Soylemez v Turkey: two Turkish citizens were given a suspended sentence of two years imprisonment for chanting pro-Kurdish slogans. The court held that this was a violation of their rights to freedom of expression under Article 10 ECHR, and was neither proportionate nor necessary in a democratic society.
• Obote v Russia: a small group of people held a flash mob in front of a government office in Moscow, sticking blank sheets of paper to their mouth with sticky tape. When asked to disperse, the applicant asked the police why; he was then escorted to the police station, and subsequently convicted of an administrative offence under the Russian Public Events Act. The court held that this was disproportionate, given the quasi-criminal nature of the sanction, when the group had done nothing capable of causing disorder or disruption to ordinary life. There had therefore been a violation of the right to peaceful assembly under Article 11.
• TK and SR v Russia: this case considered in detail the human rights implications of extraditing ethnic Uzbeks to Kyrgyzstan for violent crimes. After a review of the reports and research available on the human rights situation in Kyrgyzstan, the court concluded that Uzbeks no longer constitute a vulnerable group such as to face risks of persecution solely based on ethnic origin in Kyrgyzstan. There was therefore no violation of the right against inhumane or degrading treatment under Article 3 in extraditing the applicants.
• Znakovas v Lithuania: a police officer used an electroshock weapon against a domestic violence suspect who was unarmed and handcuffed; there was no subsequent investigation into his conduct. The court held that this constituted a violation of the right against inhumane or degrading treatment under Article 3 in both its substantive and procedural limbs.
• KO and VM v Norway: the applicants were parents with a history of post-traumatic stress disorder and attention deficit disorder and psychiatric ill-health and drug abuse respectively. A number of anonymous notifications of concern were sent to child welfare services, resulting in an intervention which led to restrictions on contact between parents and daughter to a maximum of four visits a year. The court found that this was a violation of the right to family life under Article 8, because such infrequent contact amounted to child welfare services implicitly giving up the aim of reunification at a very early stage, without full justification of why this was considered appropriate.

On the UKHRB

• Daniel McKaveney reviews an important case which has overturned the Lord Advocate’s absolute immunity from suit for malicious prosecution
• Rosalind English discusses the legal problems created by emerging artificial intelligence technologies.
• In the latest episode of Law Pod UK Rosalind English takes a tour of the Middle Temple exhibition of 100 years of women in the law with the exhibition’s curator Rosalind Wright