The Weekly Round-up: The Coronavirus Act 2020 under review

28 September 2020 by

Harriet Harman MP, chair of the Joint Committee on Human Rights. Photo: Chris McAndrew

In the news

This week, 6 months after it was passed, the Coronavirus Act 2020 is due for a review in Parliament. In advance of that review, the Parliamentary Joint Committee on Human Rights has published a report on the human rights implications of the government’s response to COVID-19. In the report, the committee highlights a wide range of failings, including in particular: widespread confusion over what is law and what is guidance; police failing to fully understand their powers under coronavirus legislation; privacy, data protection and discrimination concerns about test & trace; reduced access to justice; disproportionate harm to school children with special educational needs and disabilities; and harms inflicted by blanket bans on visits to people in care homes, prisons, and mental health facilities. The report can be viewed here; the JCHR’s proposed amendments to the coronavirus legislation to be discussed this week are here.  

The JCHR is also due on Monday to scrutinise the government’s Overseas Operations (Service Personnel and Veterans) Bill, which proposes a presumption against prosecution for service personnel and veterans. Concerns have been raised about the risks of the UK contravening its international legal obligations, and creating impunity for serious war crimes and torture.

Concerns about surveillance in the UK continue, as it was revealed this week that surveillance cameras manufactured by Chinese company Hikvision are being used across the UK; their use has expanded in the wake of the COVID-19 pandemic. Hikvision was blacklisted by the US government for human rights violations in connection with the Uighur concentration camps in Xinjiang. Hikvision says it has been engaging with the UK and US governments to “clarify misunderstandings”, and claims it is “committed to cybersecurity standards which are compliant with the most rigorous certifications and best practices.”

US Supreme Court judge Ruth Bader Ginsburg passed away this week, just over a month before November’s election (Ruby Peacock discusses her legacy here). The Republican party is seeking the confirmation of a conservative justice, with President Trump nominating Amy Coney Barrett this week to fill the position. If she is confirmed in time, the court will be stacked 6-3 in favour of the conservative justices, opening the way to a reversal of decisions relating to issues such as reproductive rights, voting rights, LGBT rights, and healthcare.  

There has been speculation that a newly elected Democrat government could buck convention by expanding the size of the Supreme Court, to restore a balance between liberals and conservatives on the bench. This would be a drastic decision, given that expansion has historically been opposed by liberal and conservative justices alike, including Bader Ginsburg herself, and by Democratic presidential nominee Joe Biden – but in the extraordinary conditions of the upcoming election, nothing can be ruled out.

Finally, concerns continue about the functioning of the UK justice and penal system. The Guardian calls this week for repairs to the creaking edifice of the courts, and more funding for the Ministry of Justice, noting the serious harms done to children in young offender’s institutions by bans on face-to-face visits, the risks of extending custody limits to allow longer detention before trial, and the erosion of public trust caused by delays and deficiencies in underfunded courts.

In other news:

  • Amnesty International reports that European surveillance companies Morpho/Idemia, Axis Information, and Noldus Information Technology are selling their technologies to China, in some cases directly for use in Chinese mass surveillance, even while EU governments condemn the human rights abuses in Xinjiang, and call for stronger human rights safeguards in the use of these technologies. Amnesty’s report on the failure of EU laws to regulate digital surveillance exports effectively is here.
  • Meanwhile, a study by the Australian Strategic Policy Institute indicates that the scale of ‘re-education’ camps in Xinjiang is greater than was previously thought. The report can be found online here. This comes alongside a report by the Jamestown Foundation that China is using hundreds of thousands of people in Tibet for forced labour, drawing comparisons with the programme in Xinjiang: this report is available here.  The Chinese government continues to deny that there are ongoing human rights abuses in Xinjiang.  
  • Facebook has identified and disabled two networks of fake accounts based in China and the Philippines, which were interfering in Filipino and US politics. Hundreds of thousands of people in the Philippines were reached with posts supportive of President Duterte, labelling his opponents as ‘communists’ or ‘terrorists’. As the US election approaches, Facebook can be expected to be under continuing scrutiny in its oversight of fake accounts.
  • In other news on the regulatory failings of the social media platforms, Amnesty International has highlighted ongoing failures by Twitter to protect women from online violence and abuse; their report is available here.
  • The Guardian reports that Rohingya refugees say they are being detained and subjected to sexual assault in Bangladesh, at Bhasan Char; these allegations are denied by the Bangladeshi refugee commissioner. The UN has not yet been allowed to conduct a humanitarian visit to the facility.  

In the courts

R (oao Elgizouli) v The Secretary of State for the Home Department

This was a judicial review of a decision by the Home Secretary to provide material to the US government under the US-UK Mutual Legal Assistance treaty, in relation to the prosecution of terrorist fighter Shafee El-Sheikh. Mr El-Sheikh worked in Syria with terrorist group ‘the Beatles’, who were involved in numerous beheadings including those of UK and US citizens. His mother, Maha Elgizouli, had previously challenged the transfer of this information before the Supreme Court, and her challenge had been upheld in light of the US’ failure to provide assurances that Mr El-Sheikh would not be given the death penalty. At this trial, after US Attorney-General William Barr had provided that assurance in August, she sought to challenge the transfer under the Data Protection Act, and on the basis of irrationality; her challenge focused on a CPS decision indicating that there was a real possibility of a domestic prosecution of Mr El-Sheikh.

Both claims were rejected, and permission to apply for judicial review refused. The court noted in particular that the necessity of transfer under s.73(2) DPA 2018 related to a particular law enforcement purpose, not some ‘inchoate or generalised objective’. Here, the relevant subject was prosecution of Mr El-Sheikh in the USA, not simply ‘prosecution’, which might also occur in the UK. Further, the disclosure was proportionate, as Mr Barr had expressly stated that a prosecution would not occur without it. As to irrationality, the court considered that there was no principle and no authority to say that the fact that Mr El-Sheikh could be prosecuted in the UK was a reason not to assist the US Attorney-General. The court noted that Mr El-Sheikh was currently in US custody, and the alternative to a US prosecution would be transfer to the Iraqi courts, where the guarantees of a fair trial would be less secure.  

R (oao II) v Commissioner of Police of the Metropolis

This case related to the retention of information on police and counter-terrorism databases. The Claimant, a 16-year-old boy, had been the subject of radicalisation concerns raised by an online tutor when he was 11 years old. Those concerns were referred to the Metropolitan Police under the Prevent scheme, but the police did not find any risk of radicalisation. In particular, police officers had noted at the time that the online tutor’s referral appeared to be ‘malicious’ – her claims that the Claimant had been ‘obsessed’ with killing the Prime Minister, and that he liked Game of Thrones ‘because of the beheadings’, appeared to be completely baseless.

The Claimant’s data was being held on 10 police databases, accessible mostly to police officers and counter-terrorism officers, and in one case also to Home Office staff and local authority personnel. He sought to challenge the decision by the police to retain his personal data on these databases, alleging breach of Article 8 ECHR, the DPA 2018, and the public equality sector duty (PSED) under s.149 of the Equality Act 2010. His mother expressed concerns that this data could be dug up in the future, and could jeopardise her son’s future prospects with higher education institutions and employers.

The court held that, although the police had complied with the PSED, there was a clear breach of both Article 8 and the first data protection principle under the DPA 2018. No policing purpose whatsoever had been demonstrated for continuing to hold the Claimant’s data, given the lack of any finding of radicalisation risk, and it would accordingly be a disproportionate interference to retain it, given the real risk of disclosure to other parties; it would not be ‘lawful and fair’ under the DPA to keep this data on the relevant police databases.

R (oao Christian Concern) v Secretary of State for Health And Social Care 

This case concerned a coronavirus measure enacted pursuant to the Abortion Act 1967. On 30 March 2020, the Secretary of State used the power under s.1(3A) to remove a requirement for a face-to-face consultation before a woman may conduct an ‘early medical abortion’ (under 10 weeks) by means of the prescription drugs Mifepristone and Misoprostol. In light of the coronavirus lockdown, remote consultations were authorised. The measure had been upheld in the court below.

The Applicant was granted permission to appeal on 2 grounds, namely that the measure was ultra vires s1 of the Act, and that the decision was contrary to the legislative purpose of the Act.  

The court held that the designation clearly fell within the powers of the Secretary of State under the Act, and the language of the Act was not obscure, ambiguous or absurd, so it was not appropriate to raise considerations as to legislative purpose.

On the UKHRB

  • Ruby Peacock discusses the legacy of US Supreme Court Justice Ruth Bader Ginsburg
  • Emmet Coldrick evaluates the lawfulness of the COVID-19 restrictions imposed in March 2020 – Part 1 is here, and Part 2 here
  • Rosalind English reviews a ‘bonanza’ of coronavirus-related class actions filed so far in the USA

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