The Weekly Round-up: Discriminatory policing, online privacy and puberty blockers

20 September 2021 by Hugo Murphy

In the news:

This week saw the Government’s controversial Police, Crime, Sentencing and Courts Bill undergo its second reading in the House of Lords. The proposed legislation, which would broaden police powers, enable the extraction of more information from mobile phones and impose harsher sentences for assaults on emergency workers, has drawn strong criticism for its predicted discriminatory impact.

Two provisions have attracted particular concern. First, the introduction of Serious Violence Reduction Orders (SVROs), which would authorise the police to stop and search people on account of their previous offending history without requiring ‘reasonable grounds’ to do so. Such discretionary powers are predicted to have a disproportionate effect on black people, given that police figures demonstrate they are already nine times more likely to be stopped and searched than white people. In an open letter published on Monday, criminal justice organisation Liberty said that the law ‘effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat’ and risks ‘compound[ing] discrimination’.

A number of human rights charities are also perturbed by the Bill’s criminalisation of ‘residing on land without consent in a vehicle’, a measure designed to target Gypsy, Roma and Traveller communities.

In an equalities impact assessment published on Monday, the Government admitted that particular communities would be impacted in disproportionate ways, but argued that these effects would be ‘objectively justified’. It wrote, ‘There is no direct discrimination within the meaning of the Equality Act as the law will apply equally, regardless of any protected characteristic…any discriminatory impact for those of a particular race or ethnicity will be indirect.’ It said the plans represented a ‘proportionate means of achieving the legitimate aims of prevention and investigation of crime and the protection of the rights of others, notably those of the occupier and the local community.’

In other news:

• A Guardian investigation revealed that the Department for International Trade has invited six countries included on the Foreign Office human rights concern list to Europe’s biggest arms fair, which began in London this week. Among those invited were Egypt and Iran, countries with a recent track record of violent internal repression. A UK government spokesperson commented, ‘We always undertake strict checks before inviting foreign governments to export summits, including DSEI 2021.’

• Writing on the twentieth anniversary of the 9/11 attacks, Cressida Dick accused tech giants of undermining terrorist prevention efforts by virtue of their focus on end-to-end encryption. The Metropolitan Police Commissioner said that it is ‘impossible in some cases’ for the police to fulfil their role by protecting the public. Insisting on users’ right to privacy, social media companies are unlikely to reshape their platforms to facilitate more extensive monitoring.

• On Tuesday, the British Medical Association voted to replace its official opposition to assisted dying with a neutral stance on the issue. The 150,000-strong doctors’ union had opposed legalising assisted dying since 2006. A second motion was passed to accompany the historic change, calling for ‘robust conscience rights’ to be enshrined in any future legislation on assisted dying, so that individual healthcare workers would retain the freedom to refuse participating on conscientious grounds.

• Throughout the week, Home Office immigration policies came repeatedly under fire. First, the French Government suggested that ‘pushback’ strategies for returning channel-crossing migrants could violate international law. Then UN representative Rossella Pagliuchi-Lor warned MPs that enacting the Nationality and Borders Bill, which criminalises those who travel to the UK by illegal routes, risks unfairly punishing many Afghan refugees. Meanwhile, academics at Edinburgh Napier University published a report on Home Office hotels for asylum seekers during lockdown, describing them as ‘akin to detention centres’.

In the courts:

• Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363 (17 September 2021): The Court of Appeal overturned a Divisional Court decision to provide guidance which medical professionals must follow when deciding whether children under the age of 16 considering gender reassignment are capable of giving informed consent to receive puberty-blocking drugs. Delivering the court’s unanimous judgment, Lord Burnett CJ questioned the validity and neutrality of evidence relied upon by the Divisional Court in making its decision and held that it was ‘inappropriate’ for the court to issue guidance restricting the circumstances in which a minor could be considered ‘Gillick competent’. It is for doctors working closely with children and their families to discern whether the life-altering implications of prescribing the drug are truly grasped. The law does ‘not entitle a court to take on the task of the clinician’.

On the UKHRB:

• Rosalind English looks at the recent decision in Cambridge University Foundation NHS v AH and others (by her Litigation Friend and the Official Solicitor, in which the Court of Protection considered whether to continue life-saving treatment for ‘the most complex Covid patient in the world’. 

Upcoming Events:

• At 12pm on 21st September join the Bar Human Rights Committee of England and Wales (BHRC) and the All Party Parliamentary Human Rights Group (PHRG) for a discussion on ‘A Diminishing Democracy? Human Rights and the Rule of Law in India Today.’ Find out about their incredible line-up of speakers and book your ticket here.
  
  For a refresher, revisit our webinar on the Rule of Law in India held in January 2021 here.

• On 11th – 12th October join the Annual JUSTICE Human Rights Conference, a highlight of the CPD calendar. Taking place over Zoom, hear from keynote speaker Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, expert speakers debate ‘Covid-19 and Human Rights’ as well as join two breakout sessions on ‘Crime, Housing and Homelessness, Immigration and Asylum (on 11 Oct) and Protest as a Human Right, Family and Child Rights, and Judicial Review (on 12 Oct).
  
  Tickets are £100 for JUSTICE members / £150 for non-members. A recording will be available to attendees after the event. Read the full programme and book your place here.