The Weekly Round-up: Online Safety Bill, access to abortion and religious freedom 

13 December 2022 by Tabitha Hutchison

In the news

• The Online Safety Bill returned to parliament on 5 December after a five-month delay. The bill had been postponed until after the summer recess in July in light of the confidence vote called by Boris Johnson. The bill has changed significantly since originally proposed by Theresa May in the online harms white paper, including the recent adjustments to requirements relating to “legal but harmful” content, as noted in last week’s round-up.
• A Freedom of Information request by Big Brother Watch has revealed that the Metropolitan police were rebuked by the information commissioner’s office in 2020 for video surveillance of children as young as 10 at a March 2019 climate protest. According to the ICO, the data-gathering was unlawful because the force had failed to consider the privacy rights of the children at the protest, and had not considered their entitlement to added data protections in light of their age.
• Data on stop and search activity in London from the Mayor’s Office for Policing and Crime show that black Londoners of all ages were three times more likely overall to be stopped than white Londoners between April and June 2022.

In other news

• The cross-party ‘Children and Families Act 2014 Committee’ has concluded that the Act has been “a largely missed opportunity”. The report notes the aims of the Act, including better protection for vulnerable children, support for children whose parents are separating, help for children with special educational needs and disabilities and assistance for parents balancing work and family life. However, according to the committee’s investigation: “the sheer breadth of the areas covered by the Act, a lack of due concern given to implementation, poor data collection to measure impact and a lack of joined up action at all levels, has contributed to children and their families feeling let down by the system.” The report noted that several areas were notably absent from the Act, including mental health. It made a number of recommendations across adoption, family justice and employment rights. The Government response to the report is due by 6 February 2023. 
• The US Supreme Court has heard argument in the case of a woman who refuses to build websites for gay weddings. Two lower courts have ruled against Lorie Smith, upholding Colorado anti-discrimination law, but she says that her constitutional right to free speech has been violated. A ruling in her favour could have sweeping consequences for discrimination against LGBTQ+ people. Justice Sonia Sotomayor said that if it ruled against Colorado, it would be “the first time in the Supreme Court’s history” that it had allowed a business serving the public to “refuse to serve a customer, based on race, sex, religion or sexual orientation”.

In the courts

• On 7 December 2022 unanimous judgment was handed down in Abortion Services (Safe Access Zones), Reference by the Attorney General for Northern Ireland [2022] UKSC 32. The Northern Ireland Abortion Services (Safe Access Zones) Bill provides for the designation and enforcement of “safe access zones” around abortion clinics. Clause 5(2)(a) makes it an offence for a person to act in a designated safe access zone “with the intent” of, or “reckless as to whether” their act has the effect of “influencing”, “directly or indirectly” a person attending a designated abortion clinic, their accompaniers, or people working at the premises. The Attorney General argued that this clause was incompatible with Article 9, 10 and 11 rights. The Supreme Court rejected this submission, holding that the clause was compatible with the ECHR and accordingly within the legislative competence of Stormont. Any restrictions on Convention rights were justifiable in light of the pressing social need for such restrictions to be imposed in order to protect the rights of women seeking treatment or advice, in particular, and also in the interests of the wider community [154]. In striking that balance, the Court considered, among other things, the Article 8 rights of women and girls accessing abortion services, the fact that such women and members of staff are a captive audience for protestors, and that the Bill does not prevent the exercise of Convention rights but merely imposes a limitation upon where they may be exercised.
• On 6 December 2022 judgment was handed down in N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588. This was an unusual example of an appeal relating to a case management order, which in this case provided for the appointment of a female independent social worker to determine child arrangements and education in relation to an 8-year-old boy. The appellant father, who is a member of the Hassidic Haredi Orthodox Jewish community, asserted that an order permitting the instruction of a female ISW was an infringement of his human rights because he would have difficulty engaging with a woman on “intimate” issues. The grounds of appeal were that (1) in appointing the female ISW, the court failed to attach adequate weight to the father’s right to a fair hearing; (2) the appointment of an alternative male ISW would have made no difference to the court timetable; and (3) in appointing the female ISW, the court failed to attach adequate weight to the father’s religious and cultural beliefs. The Court dismissed the appeal, holding that the judge below had balanced all relevant factors and was fully entitled to reject the appellant’s human rights arguments, particularly because he had not actually raised the Article 9 argument at that stage. It was not necessary for the Court to say whether it could ever be right to specify an expert of a particular gender [45] but Lord Justice Dingemans did emphasise the importance in Article 9 cases of adducing evidence to identify the relevant religious belief and how the manifestation of that religious belief would be interfered with by the proposed action [49]-[53], which the appellant had failed to do in this case.