The Weekly Round-up: A British response to Uyghur forced labour

19 January 2021 by William Craig Cohen

In the news

For several years, China has been enacting a policy of repression and brainwashing against over a million Uyghur Muslims in its northwest Xinjiang province. Reports include instances of forced sterilisation. Its hundreds of ‘re-education’ camps have been revealed as places where contact with relatives, the ability to pray and even when to use the toilet are tightly controlled. A leaked document reveals the state’s use of algorithms to score inmates on a ‘behaviour-modification’ points system, which tells guards when to mete out rewards and punishments. Absent from their homes, Uyghur places of worship are secretly bulldozed en masse.

On Tuesday, the UK government announced new rules that seek to prevent UK companies profiting from forced Uyghur labour. Companies will have to demonstrate that their supply chains are free from slavery. Public procurement rules will also attempt to exclude suppliers with links to human rights violations. This new policy appears to implement Key Proposal no. 5 of the newly created China Research Group, a think tank set up by Tory MPs to ‘counter violations of international universal human rights’. The ERG-style group was formed after China’s coronavirus cover-up operation became clear.

Two thousand miles away, on China’s southern border, David Perry QC has come under fire this week for his prosecution of nine activists in Hong Kong, including Jimmy Lai, the pro-democracy media mogul and prominent critic of the Chinese Communist Party. Although they are not being prosecuted under Hong Kong’s broadly worded and strongly opposed national security legislation, Mr Perry QC’s prosecution comes at a time when the UK government has been mulling over the decision to withdraw distinguished British judges from the ex-colony-turned Special Administrative Region of China, in reaction to the new laws.

David Cameron’s ‘golden era’ of London-Beijing relations, announced in 2015, seems a world away.

In other news

• Victims of trafficking and modern slavery are launching legal proceedings against the recycling company Biffa Waste Services and employment agency Smart Solutions. Although the Polish gang that trafficked 400 people to the UK were jailed in 2019, the victims have accused the companies of not doing enough to prevent their forced labour, for which they were paid £5 a week by the traffickers.

• Doreen Kathambi, a Glasgow NHS worker with settled status was prevented from boarding a plane back to the UK after traveling to Kenya for her father’s funeral. She had received a letter from the Home Office which stated that she could prove her settled status online and showed airport staff the government webpage entitled ‘View and prove your immigration status’. Nevertheless, she was told she could not board without a biometric residence card that had not arrived.

• UK doctors have called for emergency legislation to prevent a surge of manslaughter lawsuits based on gross negligence. This would protect them from claims arising during the coronavirus pandemic, preventing them from bearing legal responsibility for not attending dying patients due to lack of capacity. This comes after the Care Quality Commission saw a jump in complaints last year relating to blanket decisions not to attempt resuscitation of patients without consultation.

In the courts

• In RS, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 54 (Admin), the High Court held that a man held in immigration detention, pending deportation to Jamaica, was to be released on bail. Applying the Hardial Singh principles, Mr Timothy Corner QC determined that the claimant’s severe depression and previous instances of compliance with bail conditions justified his release. The government’s own ‘Adults at risk’ (AAR) policy placed the claimant in Level 3, which identified that he was at risk of harm from continued detention. This was carefully balanced against his risk of absconding and reoffending. Although it was suggested in mid-December that deportation was likely within seven weeks, there was “no actual evidence” whether a charter flight was likely even by the end of March. A link to coronavirus was not explicitly mentioned in the judgment, but the situation faced by RS resembles many detainees who have had deportations cancelled or delayed as a result of the pandemic.

• Although the decision in Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22 is nearing its twentieth anniversary, claims originating from the improper use and production of asbestos are still generating litigation in the High Court. The Tuesday decision in Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work And Pensions [2021] EWHC 30 finalises an earlier judgment from November in which sections of the Social Security (Recovery of Benefits) Act 1997 (the Act) were declared incompatible with the Article 1 Protocol 1 rights of insurers to their private property. These insurers offered ‘long-tail’ employers’ liability to businesses which were found culpable in the asbestos scandal. The original judgment determined that a scheme in the Act, which enabled the Department for Work and Pensions to retrieve in full from the employers’ insurers the cost of several types of social security payments given to victims of mesothelioma was in breach of the insurance companies’ human rights. Changes in the law, including that in Fairchild, which significantly lowered barriers to claimants recovering for their exposure to asbestos, greatly increased the number of asbestos claimants. This increase was unforeseeable both to Parliament and the insurers in 1997. The Act, which creates an ongoing obligation on insurers, no longer did ‘no more than is necessary’ to achieve its aim of recovering from tortfeasors. It also did not strike a fair balance between the Article 1 interests of the claimants and the interests of the community. These are the tests of necessity and proportionality familiar to ECHR jurisprudence. Tuesday’s judgment deals with the consequences of the November decision, including stating that the legislation can and should be read down under section 3 of the Human Rights Act, rather than utilising a section 4 declaration of incompatibility.

In the UKHRB

• Joanna Curtis analyses the ECtHR decision requiring the immediate release of Turkey’s pro-Kurdish opposition leader Selahattin Demirtaş from pre-trial detention. 
• 1COR’s Michael Spencer and Jon Metzer discuss with Emma-Louise Fenelon the most significant landmark decisions of 2020 in the latest episode of the Law Pod UK podcast.