Transgender Rights, an Inquest Update, and the British Judge Suing the EU- The Round Up
4 May 2020
Conor Monighan brings us the latest updates in human rights law
In the News:
The long-delayed Domestic Abuse Bill returned to Parliament last week. It contains a number of measures, including a statutory definition of domestic abuse. The new definition will include not only physical violence, but also emotional, coercive and economic harm.
The Coronavirus has highlighted the importance of the Bill. Many have expressed concern about the impact of the lockdown on abused individuals. Victims are trapped in their homes and many domestic abuse services reduced their support.
In Parliament, a number of MPs spoke out about their experience of domestic abuse. Bolsover MP Mark Fletcher described growing up with an abusive stepfather. Rosie Duffield MP, who herself is a survivor, also spoke powerfully.
The government has announced a number of measures to help domestic violence victims and rough sleepers. A £76 million package has been put together. Mr Jenrick, the Housing Minister, also emphasised that victims of domestic violence are not required to stay at home during the lockdown and can seek help.
It seems likely that the Bill will also outlaw the so-called ‘Rough Sex Defence’. This term is used to describe the claim that consensual violent sexual activity led to a victim’s death.
The Government has been conducting a review on the issue. Robert Buckland MP, the Minister of State for the Ministry of Justice, told Parliament the review would be concluded in time for its findings to be implemented.
Harriet Harman MP, who tabled an amendment on the issue, described the defence as a ‘double injustice’. “Not only does [the abuser] kill [the victim] but he drags her name through the mud”, Ms Harman said.
In Other News….
- A British Advocate General is suing the European Council and the European Court of Justice for deciding to sack her. The bodies justified their announcement on the basis that the UK has left the EU. Eleanor Sharpston QC’s term was due to end in October 2021. She is likely to argue that she should be allowed to stay on until the end of her term and that her removal undermines the judicial independence of the court. Ms Sharpston argues replacing her is unlawful because it would go against primary EU law governing the court’s makeup. (More from the Legal Gazette here).
- The Chair of the Bar Council, Amanda Pinto QC, has described the impact of the virus on the Bar. In a message to members, she said that many civil and family cases where being adjourned “for no good reason” and that there is “genuine concern about the sustainability of the profession”. A survey showed that many barristers are now working under 18 hours a week. The impact on the criminal bar is especially bleak. Without financial aid, 87% of criminal barristers said they did not expect to still be in practice by October 2020. The government and the CPS have made some changes to try to assist criminal barristers, which may help them access payments early. (More from Legal Futures here).
- The Chief Coroner for England and Wales, Mark Lucraft QC, issued guidance that inquests are not “a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers”. The effect of the guidance is effectively to exclude these issues from inquests. Related problems, such as human failures which led to an individual being infected, can be considered. The announcement has attracted criticism. Lord Falconer, the new shadow Attorney General, described the announcement as “very worrying” and said it may “have an unduly restricting effect on the width of inquests”. The Chief Corner justified his announcement by pointing out that inquests are “not the right forum for addressing concerns about high-level government or public policy”. More from The Guardian here.
In the Courts:
- R (On the Application Of) McConnell & Anor v The Registrar General for England and Wales: The Court of Appeal considered whether a transgender man (and the holder of a gender recognition certificate) was entitled to be registered as the “father” or “parent” on his son’s (YY’s) birth certificate. s.12 Gender Recognition Act 2004 states that a gender recognition certificate “does not affect the status of the person as the father or mother of a child.” The appellant argued s.12 only had a retrospective effect- i.e. that the issuance of a gender recognition certificate can affect the status of the mother or father, provided that the child was born after it was issued. The court rejected this and held s.12 had both a retrospective and prospective effect. It reached this interpretation because: (i) the ordinary meaning of s.12 supported the conclusion; (ii) accepting the appellant’s argument would make other parts of the Act nonsensical; (iii) the same language was used elsewhere in the Act in respect of matters which must have a retrospective and prospective effect; (iv) other provisions which were to have a purely retrospective effect clearly stipulated that fact. Whilst s.12 did interfere with the applicant’s Article 8 rights, the effect was justified. Interestingly, the court emphasised the wide margin of appreciation enjoyed by Parliament in matters such as this.
- R (On the Application Of) Halabi v The Crown Court At Southwark: This case concerned a challenge to Notification Orders (“NOs”). NOs essentially require individuals who have been convicted abroad of a sexual offence to provide UK police with certain information. The Claimant had been convicted of rape in France. He argued that the Crown Court’s decision to subject him to a NO was disproportionate and contravened Article 8 ECHR. This argument was rejected by the High Court. It found that there was no need to conduct a proportionality analysis (as required by Article 8) before imposing an NO. It was not possible for the police to conduct a risk assessment before a NO has been granted. The court also held that the inherent uncertainty about the behaviour of sexual offenders meant it was right to take precautionary steps in relation to them. It was difficult to see what less intrusive measure could be used and the seriousness of sexual offences weighs heavily in any proportionality analysis. Claim dismissed.
- ST (A Minor) & Anor v L Primary School: A Head Teacher decided to send a letter to the parents of children who were in the same year as a disabled child. The letter explained that the child (ST) had Downs Syndrome, needed time to integrate, and that no children were being placed at risk by ST’s behaviour. The court found the letter breached the Data Protection Act 1998. ST’s parents had not consented to the letter being sent and typing the letter amounted to data processing. Sending the letter was not “necessary” to enable the school to meet its legal obligation to provide education. There was no evidence that the costs and benefits of sending the letter had been analysed, or that alternative measures were considered. The Head Teacher’s decision to send the letter also breached Articles 8 (the right to a private/ family life) and 14 (the anti-discrimination provision) of the ECHR. Finally, and for largely the same reasons outlined above, the letter amounted to a misuse of S’s private information. The court awarded £1,500 to ST and £3,000 to her mother.
On the UKHRB
- Rafe Jennings considered the data privacy considerations of Contact Tracing Apps.
- Oliver Jackson examined the impact of the new Coronavirus Regulations, which came into force at 11am on Wednesday 22 April 2020.
- Suzanne Lambert wrote about the impact of Covid-19 on immigration detention.
- Leo Davidson wrote an article arguing that the lockdown does not breach human rights.
- David Hart QC explained R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government and its implications for statutory intepretation.
- Jonathan Metzer examined an important Supreme Court judgment, which alters the approach to Article 3 in medical cases.
And on LawPod:
- Rosalind English and William Edis QC consider the legal issues arising from Commercial Surrogacy Arrangements.
- Emma-Louise Fenelon speaks to Rajkiran Barhey about the most recent issue of the Quarterly Law Medical Review.
- The ‘policy spiral’ of Domestic Abuse Disclosure Schemes, with IALS, 7th May at 12:30pm. Details here.
- The Law of Facebook: Borders, Regulation and Global Social Media CITY, with City Law School, 15th May at 2pm. Details here.
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