The Weekly Round-Up: Women’s Rights – a Long Way to Go

15 March 2021 by Calla Randall

In the news:

Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.

In other news:

• Leading surgeons are warning of a likely wave of lawsuits concerning delayed cancer treatment caused by the Covid-19 pandemic. Patients whose scans were delayed, or whose urgent surgeries were cancelled because of the lack of intensive care beds during the second wave of the pandemic, are likely to seek substantial compensation. Postponed diagnoses and treatments can allow cancers to advance, resulting in adverse outcomes for patients: thousands of people are likely to have been impacted by delays of this kind.
• The Low Pay Commission has announced a review of the minimum wage exemption for domestic workers, prompted by the important decision of the Employment Tribunal in the case of Puthenveettil v Alexander & ors [2018] UKEAT 0165_17_3101. In that case, a domestic worker successfully persuaded the court that her exemption from the minimum wage was unlawful and indirectly discriminatory on the basis of sex. However, because judgements from the Employment Tribunal are not legally binding precedents, legislative change is needed to ensure other domestic workers don’t fall through the cracks. The Commission will present its report to the government in October, after which the government will consider possible statutory amendments.
• Equality and democracy campaigners have expressed concerns this week at government proposals to change the rules about ID at polling stations, making photo ID mandatory from 2023 in all UK and English elections. The government argues that the move is intended to combat voter fraud, but campaigners have pointed out that there was only one conviction for personation fraud in 2019. However, 24% of UK citizens, disproportionately from ethnic minority backgrounds, do not have any form of photo ID, so there are significant concerns that the new laws will effectively disenfranchise a large proportion of UK citizens.

In the courts:

Privacy International & Ors v Secretary of State for Foreign And Commonwealth Affairs & Ors [2021] EWCA Civ 330: The Court of Appeal unanimously rejected the appeal by three NGOs who alleged that MI5’s ‘Guidelines on the use of agents who participate in criminality’, also known as the Third Directive, was unlawful because it was ultra vires, effectively conferred immunity to its agents, and contravened human rights. Under the guidelines, MI5 can authorise undercover agents and informants to commit serious crimes in pursuit of intelligence. In particular, the Court held that the policy was not ultra vires because i) the Service Security Act (1989) contained an implied power to carry out criminal acts, and ii) before this act, there was an implied power under the prerogative. This power could be implied because it was essential to the effectiveness of MI5 that undercover agents should be allowed to carry out criminal acts to ensure their identities were not discovered, and thus Parliament must have intended this power to be conferred when passing the Act. The Court held that this did not give implied immunity to agents because it was very clear that they could still be prosecuted in a criminal or civil action. Finally, the Court suggested that the Appellants did not have standing to bring the human rights claims under s.7 of the Human Rights Act (1998), and so these were not considered.

Begum v Maran (UK) Ltd [2021] EWCA Civ 326: The Court of Appeal upheld the previous decision of the High Court that a claim for negligence by the widow of a deceased shipbreaker should not be struck out. The widow is seeking damages against a UK shipping company, Maran (UK), that sold their vessel to be demolished in Bangladesh, from which the deceased fell while working. The widow, Mrs Begum, argued that Maran (UK) owed workers such as the deceased a duty of care to ensure that ships are dismantled in a safe environment. The Court determined that it was at least arguable that Maran (UK) did have a duty of care to the deceased, because they could be responsible for, or have created, the state of danger that led to his death. This has potentially fundamental implications for liability in negligence where there are multiple third parties involved in the transaction. However, the Court of Appeal overturned the High Court’s contention that the limitation period of one year for negligence claims, imposed by Bangladeshi law, was not applicable because the claim was arising out of environmental damage. Rather, it held that it would be a matter for the High Court as a preliminary issue to determine whether the one-year limitation period would impose undue hardship on the widow. The High Court will now hear Mrs Begum’s claim in full.

Ncube, R (on the application of) v Brighton and Hove City Council [2021] EWHC 578 (Admin): The High Court ruled that during the Covid-19 pandemic councils can give emergency housing to homeless people who would normally not be eligible because they have no recourse to public funds. The issue concerned the ‘Everyone In’ scheme initiated by the government in the early stages of the pandemic, which aimed to get homeless people off the streets given their particular vulnerability to the virus. The question was whether it was in fact unlawful to offer this emergency funding to homeless people without recourse to public funds, given the legal restrictions on accommodating unlawfully present people in the Housing Act (1985) and Schedule 3 of the Nationality, Immigration and Asylum Act (2003). In this case, Mr Justice Freedman held that the Council did in fact have powers under s.138 Local Government Act (1972) to take action to provide accommodation or assistance in a state of emergency where there was a threat to life. Section 2B National Health Service Act (2006) also permitted the Council to offer temporary accommodation to otherwise ineligible individuals where this would improve the health of people in the area.

On the UKHRB:

• Ruby Peacock discusses why the term ‘revenge porn’ is a misnomer with reference to the Criminal Justice and Court Act (2015).
• Shaheen Rahman reports on the recent court case concerning the legality of the Sarah Everard vigil within the current coronavirus restrictions.