The Weekly Round-Up: Human Rights vs Unfettered Trade: a Party divided?

25 January 2021 by Calla Randall

In the news:

Last week’s round-up detailed China’s ongoing oppression of Uyghur Muslims in Xinjiang province. This week, the government narrowly defeated a backbench rebellion in the form of an all-party amendment, strongly endorsed in the Lords, which would have given victims of genocide the ability to obtain a determination in the High Court confirming the existence of genocide in their country. Such a determination would have required Parliament to reconsider all trade deals with the country in question. The amendment aimed to deal with a current impasse whereby international courts cannot make a ruling on genocide because the involved nations, for example, China, veto such matters from consideration, or do not recognise the relevant courts. The Trade Secretary, Greg Hands, had strongly opposed the amendment, suggesting that it fundamentally undermined Parliamentary sovereignty in giving the courts too much power to determine UK trade deals. The government’s failure to act in seeking to prevent serious violations of human rights has been widely criticised. Tobias Ellwood, the chair of the defence select committee, suggested that ‘the UK was suffering from an absence of clarity about what we believe in’. In response to the motion’s defeat, the independent peer Lord Alton, who co-sponsored the motion in the Lords, has stated that the amendment will be re-drafted to make explicit the requirement that Parliament would vote on the revocation of all trade deals with a country where a determination of genocide had been made. The revised amendment will be re-submitted in the Lords as quickly as possible. The US State Department’s declaration that the treatment of Uyghur Muslims in China represents genocide and crimes against humanity on Tuesday, is likely to embolden rebels to maintain their pressure on the UK government for further action.

In other news

• Joe Biden became the 46^th President of the USA after his inauguration on Wednesday, and has since wasted no time in reversing much of Donald Trump’s controversial legacy. In particular, many of the policies implemented by Trump which promoted human rights violations have been overturned, including the reversal of the ban on immigrants from several Muslim-majority countries, withdrawing a Trump order which banned Federal agencies from using critical race theory in equality training, and rejoining the Paris Climate Agreement.
• The charity Pregnant Then Screwed is bringing a judicial review claiming that the self-employed income support scheme (SEISS) is indirectly discriminating against women. Introduced alongside the furlough scheme last year, SEISS offers payments calculated at 80% of average earnings between 2016-2019. However, this average does not exclude periods in which women were not earning because they were on maternity leave, and nor does it take into account statutory maternity payments, resulting in a significant loss of earnings. The founder of Pregnant Then Screwed, Joeli Brearley, criticised Chancellor Rishi Sunak’s claim that maternity leave was equivalent to illness or a period on sabbatical, saying that child care was vital and important work and should be viewed as such by the government.
• The High Court has granted the Tavistock NHS Trust leave to appeal a decision handed down in December last year which ruled that children under 16 were unlikely to be mature enough to give consent to receiving puberty-blocking drugs. The original decision was criticised by Susie Green, the CEO of Mermaids, a charity which offers support to transgender and non-gender conforming children, as forcing children to go to court to access basic healthcare.
• The Public and Commercial Services Union, which represents CPS employees, ushers and security staff in UK courts, has warned that there is likely to be industrial action unless the courts in England and Wales are closed while improvements are made to coronavirus safety. The union suggested that cases could be dealt with virtually for the time being, and that the safety of staff should be a priority. The Ministry of Justice criticised the statement, saying there was no ‘elevated risk’ for those attending court, and that it was ‘clear justice must continue to be done’, particularly given concerning reports that the backlog of unheard cases reached a peak of 54,000 this week.
• BT is facing a £600m lawsuit over claims that is has failed to compensate elderly customers who were overcharged for landlines. In 2017, BT significantly reduced its landline prices after Ofcom criticised telephony providers for increasing landline prices between 25% and 49% even though the cost of providing the service had dropped by 26%. However, campaigners have argued that loyal customers should be compensated for the years of overcharging, particularly given that those affected were largely older, on lower incomes, and vulnerable. BT responded by saying it would defend itself ‘vigorously’ against any claim that it was abusing it market position to the detriment of vulnerable people.

In the courts

Salvato, R (On the Application Of) v Secretary of State for Work and Pensions [2021] EWHC 102 (Admin): The Claimant, Ms Salvato, won her case in the High Court challenging the childcare component of Universal Credit on the basis that it constituted a form of indirect discrimination against women and was irrational. Currently, parents can only obtain Universal Credit childcare support once they have paid for childcare and supplied ‘proof of payment’. This is not a requirement of any other component of Universal Credit. Mr Justice Chamberlain found for the Claimant on both grounds, holding that Article 14 of ECHR, when read with Article 8 and/or Article 1 of Protocol 1, was violated by the policy because women were more likely than men to require childcare support in order to work, and thus were subject to indirect discrimination; and that it was also irrational, forcing parents to work fewer hours because they could not afford the childcare needed to work more hours, which contradicted the stated aims of Universal Credit in incentivising recipients to work. The Secretary of State for Work and Pensions is appealing the decision.

United Trade Action Group Ltd & Anor, R (On the Application Of) v Transport for London & Anor [2021] EWHC 72 (Admin): In a damning judgement handed down this week, the High Court ruled that the Mayor of London and Transport for London’s ‘Streetspace’ scheme and associated guidance, which created numerous bus-only corridors preventing access to taxi drivers and other road vehicles, was unlawful. In two consolidated claims for judicial review brought by United Trade Action Group (UTAG) and the Licensed Taxi Drivers Association, Mrs Justice Lang ruled that four out of the five grounds of challenge were satisfied. First, the scheme failed to recognise taxis as a legitimate form of public transport by failing to distinguish them from general traffic, which in turn particularly disadvantaged disabled people who relied on taxis to travel. Second, TfL and the Mayor of London had failed to have proper regard for their public sector equality duty under s.149 of the Equality Act 2010 because they had not subjected the plans to the required ‘detailed and conscientious’ scrutiny. Third, the Claimants’ legitimate expectation to pass on London’s roads was breached by the plans. Finally, the treatment of taxis in the plans was irrational, because the stated justification for the scheme, namely that reduced public transport as a result of the pandemic would create an increase in cyclists and pedestrians, whose health and safety would be risked by excessive traffic, was not supported by evidence. The court issued quashing orders, requiring the defendants both to re-consider and substantially alter the schemes.

In the matter of X (A Child) (No 2) [2021] EWHC 65 (Fam): The High Court dismissed an application which sought to challenge current law dictating that no child has the absolute right to refuse potentially life-saving medical treatment, even when they are Gillick competent (a test from Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 which determines when a child under 16 has legal capacity to consent or refuse treatment). X is a 15 year old child who suffers from sickle-cell syndrome, a condition which intermittently requires life-saving blood transfusions. However, X opposes this treatment due to her religious beliefs as a Jehovah’s Witness. The argument presented to the court was that societal and legal developments, particularly the Human Rights Act (1998) and the Mental Capacity Act (2005), implied that the conventional rejection of patient autonomy for children with serious conditions no longer accurately reflected the law. Sir James Munby dismissed that argument, holding that while the common law was ‘capable of moving with the times’, the original law was not brought into question by these new legislative developments. Accordingly, alteration of this principle was a matter for Parliament, not the courts.

On the UKHRB

• Robert Kellar QC discusses the ramification of the recent revisiting of ‘wrongful life’ in Toombes v Mitchell [2020] EWHC 3506 (QB).
• Sapan Maini-Thompson offers an extended look at the recent judgement on Julian Assange in United States Of America v Assange [2021] EW Misc 1 (MagC).
• Rosalind English reports on the German District Court’s recent ruling that the ban on social contact in their Corona Ordinance is unlawful.
• Rosalind English also covers the recent case in Belgium which declared enforced mask-wearing unconstitutional.