The Weekly Round-Up: public executions, same-sex adoption and refugee rights

27 September 2021 by

In the news:

A spokesman for the Taliban has said that working women must stay at home for their own safety as “a very temporary procedure” until systems are in place to ensure their safety.  The spokesman also told Afghans not to go to Kabul airport and said the US should not encourage them to leave Afghanistan.

Last week, the former head of religious police for the Taliban confirmed that punishments such as execution and amputation would return to Afghanistan.  Prior to the takeover of Kabul, a Taliban judge told the BBC that Sharia law was clear and included punishments of 100 lashes in public for sex out of marriage, being stoned to death for adultery, and “[f]or those who steal: if it’s proved, then his hand should be cut off.”

On Saturday it was reported that the Taliban hung the bodies of four alleged kidnappers from cranes in Herat city square, before moving them to other areas of the city for public display. An unidentified Taliban commander said the aim was “to alert all criminals that they are not safe”.

In other news:

  • There are concerns over the fitness of the hotels used by the Home Office as temporary accommodation for refugees.  Brighton and Hove city council has asked the Home office to stop using one hotel due to safety concerns. Councillor Hannah Clare, chair of Brighton’s children, young people and skills committee, said the Home Office “dumped a load of kids in there with no Covid-19 risk assessment and no safeguarding”, with less than 24 hours’ notice given to the local authority.  Meanwhile, solicitor Stuart Luke, has said unaccompanied minors were “de facto detained” as they have been told not to leave their accommodation.  He added that he had been prevented by officials from assessing an unaccompanied minor held at a Kent hotel, in breach of the child’s right to access a lawyer.
  • Women’s rights activist Huang Xueqin and labour rights campaigner Wang Jianbing, both from China, have been missing for over a week.  Friends fear they have been detained by Chinese authorities.  Huang, a prominent #MeToo campaigner and journalist, was due to fly from Guangzhou to the UK on 19 September to study a Masters at Sussex University under the British Chevening Scholarship.  Wang was reportedly accompanying her to the airport when both went missing.  In 2018 Huang wrote a survey report on sexual harassment and assault on Chinese women in journalism, and in 2019 she joined and reported on anti-extradition bill protests in Hong Kong. She was previously detained for three months for “picking quarrels and provoking trouble.”  Meanwhile friends of labour activist Wang say he may have been detained over “incitement to subvert state power” due to gatherings held at his home.
  • The UN Special Rapporteur for Myanmar, Tom Andrews, told the Human Rights Council on Wednesday that the Myanmar military junta is systematically abducting relatives, including babies, of people it sought for arrest.  Andrews said at least 75 children aged 14 months to 17 years had been killed by the military as of July.  On Thursday the UN Human Rights Office said these and other abuses by the Myanmar junta may amount to war crime and crimes against humanity.

In the courts:

  • Cornerstone (North East) Adoption and Fostering Services Ltd, R. (On The Application Of) v HM Chief Inspector of Education, Children’s Services and Skills (OFSTED) [2021] EWHC 2544–  – the appellant Cornerstone is an Independent fostering agency, which finds carers for children needing to be fostered or adopted.  It is an Evangelical Christian organisation which required carers to sign and agree to Cornerstone’s Statement of Beliefs including to “[s]et a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including…homosexual behavior and wilful violation of your birth sex.” OFSTED considered this policy to contravene the Equality Act 2010 and the Human Rights Act 1998 as being discriminatory on grounds of sexual orientation and religion or belief, and required Cornerstone to amend its recruitment policy to allow carers outside of this bracket.  The court upheld the High Court finding that the policy was not discriminatory against religion or belief, due to the exception in Schedule 23, paragraph 2 of the Equality Act 2010. The policy was however discriminatory on grounds of sexual orientation, as section 10 of the same paragraph disapplies the exception in cases of sexual orientation restriction where an organisation is acting on behalf of a public authority under the terms of a contract. [38] Interestingly, discrimination against people who do not conform to their birth sex was not addressed.
  • PW, Re [2021] EWCOP 52 – an 80-year-old Jehovah’s Witness who required a blood transfusion in order to receive life-sustaining surgery or further medical investigation was found to lack capacity to decide on whether or not to accept a transfusion. She had signed an advance decision document, stating that she would in no circumstances accept a blood transfusion, but the Court found that her apparent indecisiveness invalidated the advance decision. She had initially agreed to the transfusion when told she could die without it, but when asked again 30 minutes later she refused and could not recall being asked before. Lacking capacity to consent to treatment would not automatically invalidate an advance decision, indeed, this is precisely the case in which such a decision would be looked to. However, in this case the patient’s evident indecision rendered the document invalid per section 25(2)(c) of the Mental Capacity Act 2005, which states that an advance decision is not valid if the patient “has done anything else clearly inconsistent with the advance decision remaining his fixed decision.” The judge found that a) the patient lacked capacity to refuse or consent to a blood transfusion, b) her advance decision concerning blood transfusions was invalid and c) it was in her best interests to receive the blood transfusion to receive life-sustaining treatment.
  • Huxtable, R (On the Application Of) v Secretary of State for Justice [2021] EWCA Civ 1394 – a judicial review challenge to a rule change introduced by Parole Board Rules 2019 has failed.  The challenge held that the new “Reconsideration Mechanism”, which grants a prisoner or the Secretary of State a 21-day period to apply for administrative review of a Parole Board decision was ultra vires, and incompatible with ECHR Articles 5(1) and 5(4).  During the 21-day period the prisoner remains detained.  The Court of Appeal held that the change was not ultra vires, or beyond the power of the Secretary of State to make, as it concerned a procedural change and did not change the Parole Board’s substantive. The power to make procedural rules is granted to the Secretary of State under s.239(5) of the Criminal Justice Act 2003.  ECHR Article 5(1) establishes the right to liberty and security of the person in accordance with the law and requires a sufficient causal connection between conviction and deprivation of liberty.  The Reconsideration Mechanism does not break the causal connection because a final and binding decision on parole is not taken until the end of the 21 days. There is therefore no delay of the prisoner’s release.  ECHR Article 5(4) establishes that lawfulness of a detention shall be subject to speedy court decision and release ordered if a detention is unlawful. The Reconsideration Mechanism does not breach Article 5(4), in fact it favours the prisoner whose only option prior to the new rule was the lengthy process of administrative review.  It also allows a prisoner or Secretary of State to shorten the 21-day period to suit their case.  A prisoner’s liberty is thus arguably “further protected, not infringed, by the Reconsideration Mechanism.” [40]

On UKHRB:

  • Henry Tufnell considers what counts as a “philosophical belief” in the Forstater case.
  • Law Pod UK is back after the summer break with a new episode on Closed Material Proceedings in cases involving top secret evidence

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