Open justice, Northern Ireland Protocol and protest rights: The Weekly Round Up 

13 February 2023 by Anna Moody

In the news

• The Public Order Bill has concluded its Report Stage in the House of Lords and is now due to return to the House of Commons. The Peers voted down several government proposed amendments including those which allowed police powers to (i) pre-emptively shut down protests before any disruption is actually caused; (ii) stop and search without suspicion; (iii) impose Serious Disruption Prevention Orders without conviction. The removal of these amendments does mitigate some of the damage that the Bill threatened to have on the Article 11 right to protest. However, not all amendments were put to a vote and concern prevails about the future impact of the bill. 

• The Church of England’s General Synod has voted in favour of offering blessings to same-sex couples within Anglican churches following a legal marriage ceremony. This step faces conservative resistance, for example by the Church of England Evangelical Council, whilst also conspicuously falling short of allowing same-sex marriage within the Church.

• The UK government has introduced a new amendment to the Social Housing Regulation Bill which enforces time limits within which landlords will have to investigate and fix instances of damp and mould. Tenants will be able to rely on these rules which will be incorporated into tenancy agreements. This new amendment is named “Awaab’s law” after two-year old Awaab Ishak who died from respiratory failure that was caused by a landlord’s failure to resolve mould issues in his home.

In other news

• Human Rights Watch has called for the UK government and EU to investigate crimes against humanity against Uyghurs and Turkic Muslims in the Xinjiang region and impose sanctions rather than meet with the Chinese Communist Party deputy secretary on February 21. The UK government has been questioned for declaring “mounting evidence of war crimes” by Russia yet remaining silent on the nature of crimes in Xinjiang.

• A Crown Prosecution Service study has found significant disproportionality in the treatment of defendants from mixed ethnic backgrounds and has identified that they are statistically more likely to be charged. An independent disproportionality group has now been established by the CPS to identify the factors that contribute to these concerning disparities.

• The UK government has stated an intention to amend the Victims Bill so that children born as a consequence of rape can receive extra support from criminal justice agencies. Evidence of the long-term harm that is suffered by rape-conceived people has been identified in the Centre for Women’s Justice evidence review. The Victims Bill is expected to be introduced in the House of Commons within the coming months.

• Recent Constitution Unit research carried out as part of the Democracy in the UK after Brexit project, has revealed overwhelming public support for the central role of judges in protecting human rights and holding politicians to account. A useful summary of the findings can be found here. 

In the courts

• The Supreme Court has unanimously rejected all of the unionist leaders’ arguments in the case of Allister and others and Clifford Peeples v the Secretary of State for Northern Ireland and others and affirmed the lawfulness of the Northern Ireland Protocol. Significantly, the claimants argued that the Acts of Union were “constitutional statutes” that could not be repealed by the Protocol. The Court unanimously rejected this as merely “academic” and reinforced the “clearly expressed will of parliament” in enacting the new legislation. The impact of this decision on the concept of “constitutional statutes” in future cases remains to be seen. 

• The vice-president of the Court of Protection has issued guidance which states that closed hearings should now always be a matter of last resort. This guidance reinforces the principle of open justice and answers important practical questions that were raised in the case of Re A (Covert Medication: Closed Proceedings) where a young woman was given hormone treatment without her mother’s knowledge.

• In C8 v France, the European Court of Human Rights has found that there was no violation of Article 10 ECHR (freedom of expression) where financial sanctions were imposed on C8, a French broadcasting company for showing controversial content on its show “Touche pas à mon poste”. The content was found to have perpetuated a stigmatising stereotype of homosexual people and also of women. Where the primary purpose of this content was to attract the widest possible audience for commercial gain, and considering the particular impact of the footage on younger viewers, the Court found that the State had a wide margin of appreciation to impose proportionate sanctions.