The Weekly Round-up: An ‘Attack’ on Human Rights and Two Failed Judicial Reviews

14 December 2020 by

Photo: Andrew Parsons

In the news

This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.

Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.

In other news:

  • President Trump and his legal team continue in their attempts to challenge the US election result. The US Supreme Court this week threw out two such challenges. A challenge by the Texas Attorney-General to the results in battleground states was rejected in a single-page order stating that Texas had “no cognizable interest” in the result; a challenge by a Pennsylvania congressman to the Pennsylvania result was met with a single sentence stating “the application for injunctive relief…is denied”.    
  • As Azerbaijan celebrated a victory over Armenia in the Nagorno-Karabakh conflict, human rights organisations have raised concerns about torture, beheadings, and other human rights abuses. Amnesty’s report is available here.
  • A list of Uighur prisoners held in Aksu prefecture in Xinjiang has been obtained by Human Rights Watch. The list reveals the use by the Chinese authorities of a ‘predictive policing’ network, following individuals’ online activity, personal connections, and daily life. Reasons for detention include “being generally untrustworthy”, being “born after the 1980s”, and “having links to sensitive countries”. This is the second prisoner list obtained by human rights organisations, after the Karakax list in February, which indicated similarly bogus reasons for detention, such as “minor religious infection”, growing long beards, praying, “thinking is hard to grasp” and “untrustworthy person born in a certain decade”.
  • Civicus Monitor has issued its annual report on global civil liberties. The report finds that 87% of the world’s population are living in countries that are “closed”, “repressed”, or “obstructed”, a 4% increase on 2019. The report notes how many government have used COVID-19 to justify censorship, indefinite detention, intimidation, and harassment. Within Europe, the report emphasised authoritarian measures taken by Hungary, Poland, Slovenia, and Serbia. The findings are available here.
  • A New York Times investigation into adult content site Pornhub alleged this week that the site was failing to eliminate non-consensual and child abuse content. Having initially said the claims were “irresponsible and flagrantly untrue”, Pornhub has now removed its download function and introduced user verification for video uploads.  In response to the investigation’s findings, Mastercard and Visa have blocked use of their cards on the site.

In the courts

Free Speech Union & Anor v Office of Communications (Ofcom)

This was a judicial review challenge to Ofcom’s approach to regulating coronavirus-related misinformation in broadcasting.

Toby Young and the Free Speech Union brought a challenge to two Ofcom Guidance Notes from March 2020. These Notes highlighted that Ofcom would prioritise its enforcement of broadcast standards in relation to potentially harmful health claims, potentially harmful medical advice, and potential inaccuracy or material misleadingness in relation to COVID-19.

The claimants argued that Ofcom was purporting to regulate any material which (i) questions public policy, or (ii) could undermine the advice of public health bodies, or (iii) could undermine mainstream sources of information and/or (iv) could therefore reduce trust in government or public institutions. This broadcast material, they contended, could not in law be “harmful” purely by virtue of falling into those categories. Young et al contended that Ofcom had approached the issue of “harmful” material in relation to COVID-19 as having “no limits” and including merely “speculative” harm.

Their fundamental claim was that Ofcom’s notes were outwith its powers under the Communications Act 2003 and/or contrary to Article 10 ECHR.

The court had little sympathy for these arguments. Fordham J noted that Ofcom had not at any point purported to regulate solely on the basis of the features identified by the claimants; there was no sign that it had classified any broadcast material as ‘harmful’ solely on the basis of features (i)-(iv); and there was no sign that it had lost sight of freedom of expression. The claim was “premised on a misinterpretation and mischaracterisation of Ofcom’s Guidance Notes”, and was dismissed.  

Colchester, R. (On the Application Of) v Secretary of State for Education

This was a challenge to 2019 regulations and guidance on sex and relationship education in schools, brought by aggrieved parents and campaigners. These regulations introduced a new compulsory curriculum of relationships education for primary school pupils and relationships and sex education for secondary school pupils, from September 2020 onwards.

The parents argued that the relevant regulations were unlawful in that (a) they restricted statutory and ECHR rights for parents to excuse their children from sex education which is contrary to their religious or philosophical convictions, and/or (b) they were ultra vires the Children and Social Work Act 2017 under which they were made, and/or (c) contrary to the parents’ rights under Article 2 of the 1st Protocol to the ECHR by undermining ‘plurality in education’.  

As the regulations had been made in June 2019, and it was apparent then that they would come into force on September 2020, the challenge was out of time. The question was therefore whether it would be just to grant an extension of time. The claimants argued that it would because (i) their coalition had only formed when they realised no-one else was litigating this important issue; (ii) the issue was of public importance; (iii) the issue of delay had not been raised by defendants in correspondence; and (iv) fundamental rights were at stake.

The court gave these arguments short shrift. The claimants had shown no reason why they could not have brought the claim sooner, especially given the public importance of the matter. Although the claimants’s grounds were arguable, they did not outweigh the clear detriment to good administration of extending time; the claim was dismissed.  

On the UKHRB

  • Rosalind English runs through a ‘smorgasbord of favourites’ in a look at the best of Law Pod UK in 2020
  • Alex Ewing considers the decision of the ECtHR on Article 8 ECHR and deportation in Unuane v UK
  • Rosalind English explains a possible ‘duty to pass subordinate legislation’ under the Human Rights Act

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