The Weekly Round-up: Employment Rights, ‘Spy Cops’, and Abandoned Rape Prosecutions
1 February 2021
In the news:
The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage. This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law. Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’. During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work.
On Wednesday, the Commons considered House of Lords amendments to the Covert Human Intelligence Sources (Criminal Conduct) Bill (AKA the ‘Spy Cops’ Bill), rejecting all but one, to which it made an amendment. The Bill, considered ‘deeply dangerous’ by Amnesty International, would grant power to security and intelligence agencies, law enforcement agencies, and several public authorities to authorise Covert Human Intelligence Sources (CHIS) to participate in conduct which would in other circumstances be criminal. MI5 and law enforcement agencies have welcomed the Bill but several rights organisations and opposition MPs have expressed concerns, especially given the lack of explicit limitations on the types of crimes which could be authorised. The Lords’ amendments which were rejected included provisions outlawing the authorisation of murder, sexual offences and torture under the Bill; granting persons injured by authorised criminal conduct the right to seek compensation; and placing limitations on criminal conduct authorisations being granted to children and vulnerable sources. The Bill will now return to the Lords for further consideration.
In other news:
On Sunday, Hong Kong British National (Overseas) (BNO) passport holders and their immediate dependents will be able to apply for a UK visa, which would allow them to apply for settlement after five years and British citizenship after six years. The new visa was announced in July 2020 after China imposed a new security law in Hong Kong. The UK said the law threatened the Joint Declaration made in 1984, before Hong Kong was returned to China. The agreement was to grant Hong Kong Special Administrative Region status, protecting freedom of assembly and free speech, rights which are limited in mainland China. China has called the visa scheme a violation of China’s sovereignty and from Sunday will no longer recognise the BNO passport.
The End Violence Against Women (EVAW) coalition of women’s rights organisations finally had their judicial review claim against the CPS heard in the Court of Appeal 26 and 27January. The group submits that a covert CPS policy change meant that in 2016-17 the ‘merits based approach’ to prosecution of rape cases was dropped and prosecutors were instead encouraged not to charge ‘weaker cases’, so as to improve their conviction rate. This led to rape prosecutions dropping by over 50% over a two year period and 98.6% of reported rapes resulting in no charge or summons in the 2019/2020 year. The group, represented by lawyers from the Centre for Women’s Justice (CWJ), was initially denied permission for their judicial review claim and consequently asked by the CPS for high costs recovery, despite their funding as a charity coming mainly from small donations. That initial decision was overturned by the Court of Appeal in July 2020, which granted permission for this week’s full judicial review with three senior judges. After such a long fight to get their case heard, the outcome will no doubt be keenly awaited by those individuals who, after reporting and providing evidence of their rape, were told a jury wouldn’t believe them.
In the courts:
Lowe v Secretary of State for the Home Department  EWCA Civ 62: the Court of Appeal heard an appeal against an Upper Tribunal decision to reverse the First-tier tribunal’s (FTT’s) decision regarding a deportation order. The Appellant, Mr Lowe, is a Jamaican national who came to the UK aged three with his parents. He was issued a deportation order following a criminal conviction for offences committed aged 17. Mr Lowe made a human rights claim appealing the order based on the ‘private life exception to deportation’, since he would face ‘very significant obstacles’ to his integration into Jamaica, a country he has not known since he was three years old. The FTT judge allowed Mr Lowe’s appeal but the Home Office successfully appealed to the Upper Tribunal, which overturned the FTT decision. Mr Lowe then appealed to the Court of Appeal on the basis that the Upper Tribunal had been wrong in overturning the FTT decision. The Court found for the Mr Lowe, stating that ‘
the UT was indeed wrong to hold that the decision of the FTT was irrational and that it was also wrong in substituting its own assessment of whether there were “very significant obstacles” to the Appellant’s integration into Jamaica after deportation for that of the FTT
In other words, the role of the Upper Tribunal judge is not to substitute his or her own interpretation of the evidence for that of the FTT judge, but to assess whether the findings of the court below are irrational on the basis of the evidence. Only then should an appellate court intervene.
Thacker & Ors v R.  EWCA Crim 97: The Court of Appeal held that the appellants, a group of activists known as the “Stansted 15”, should “never have been prosecuted” for a terror-related offence under s.1(2)(b) of the Aviation and Maritime Security Act 1990 (“AMSA”). In March 2017, the appellants cut through a fence at Stansted Airport and locked themselves together around a plane chartered by the Home Office for the deportation of 60 individuals. Their actions prevented the plane from leaving and the Appellants were initially charged with the minor offence of aggravated trespass under s.68 Criminal Justice and Public Order Act 1994 (“CJPOA”) but later charged with, and convicted of, the far more serious offence of “endangering safety at an aerodrome”, contrary to s.1(2)(b) ASMA. This offence carries a maximum sentence of life imprisonment and implements into domestic law the ‘Montreal Protocol’, an international counter-terrorism convention. These convictions led to a Join Letter to the UK government from the UN Working Group on Arbitrary Detention and three Special Rapporteurs, urging the UK not to use terrorism-related legislation to prosecute peaceful protesters. On Friday, the Court of Appeal allowed the first of five submitted grounds of appeal, holding that “[t]he Appellants should not have been prosecuted for the extremely serious offence…because their conduct did not satisfy the various elements of the offence.” Specifically, their conduct “did not likely endanger the safe operation of this particular aircraft, still less the aerodrome as a whole or the safety of persons present.” All appellants’ conviction were quashed. For a more detailed explanation of the judgment and circumstances of the case, read Samuel March’s article on UKHRB.
On the UKHRB:
- Emma-Louise Fenelon speaks to Máiréad Enright on Law Pod UK about Ireland’s recent Mother and Baby Homes Commission of Investigation Report
- Samuel March discusses the Court of Appeals quashing of the Stansted 15’s convictions in Thacker & Ors v R.  EWCA Crim 97
- David Hart QC examines the meaning of ‘continuing nuisance’ in relation to the Court of Appeal’s judgment in Harrison Jalla and others v. (1) Shell International Trading and Shipping Company (2) Shell Nigeria Exploration and Production Company Limited EWCA Civ 63