Weekly Round-Up: defining “sex”, facial recognition, and Windrush recommendations

12 April 2023 by Anna Moody

Source: https://www.bbc.co.uk/news/uk-wales-65214494

IN THE NEWS

Controversial facial recognition technology that was ruled unlawful by the Court of Appeal for breach of privacy and equality rights in 2020 is due to be resumed for use by the South Wales Police. This follows a report commissioned with the Metropolitan Police, which apparently justifies the use of technology in certain settings. However, Liberty’s campaign highlights prevailing concerns about the technology as “oppressive”, in breach of privacy rights and causing increased race and sex discrimination.

On the five year anniversary of the Windrush scandal, the Black Equity Organisation announced that they are seeking judicial review over Suella Braverman for breach of the government’s Equality Act 2010 obligations. This challenges her decision to disregard key reform recommendations that were made as part of Wendy Williams’ Windrush Lessons Learned Review, 2020 which the Home Office had originally promised to implement. Over 50,000 people had signed a petition urging Suella Braverman to re-think her decision to drop key recommendations of the review, but as it stands, her decision is not to hold reconciliation events or to review and extend the powers of the independent chief inspector of borders and immigration. Whether this will be held “unlawful” under the Equality Act, as the Black Equity Organisation have suggested, remains to be seen. 

A watchdog report by the Investigatory Powers Commissioner’s Office previously identified non-compliance of intelligence agencies with the UK’s torture policy in cases where there is a “real risk of torture”. This is now sparking criticism of the torture policy itself, which is coming under increasing scrutiny. In particular, the human rights group Reprieve, have declared the policy to be “fatally flawed”. For example, it is being suggested that ambiguities in the policy may allow for “torture tipoffs” as in the case of Jagtar Singh Johal. 

IN OTHER NEWS

The definition of “sex”, as a protected characteristic in the Equality Act 2010, is under review. Ministers are considering whether to change the definition of “sex” under the Act so that it refers to a person’s biological sex at birth. However, the potential consequences for the trans community are being raised and there are suggestions that it may enable single-sex spaces and events to ban trans people from entry. The Minister for Women and Equality has requested advice from the Equality and Human Rights Commission about this, and their initial response urges the UK to carefully investigate the practical implications that this change could have. 

The UK’s approach to unaccompanied asylum seeker children came under further scrutiny this week. Firstly, the UK government has been warned by UN experts that their treatment of unaccompanied asylum seeker children who are placed in hotels may put them in breach of their international legal obligations. This is due to the increased risk of trafficking that these children are facing, and follows rising concerns about those who have gone missing. Meanwhile, further issues are being highlighted about the potential conflict between the new Illegal Migration Bill’s provisions for unaccompanied asylum-seeking children and the Children Act 1989 as well as the Convention on the Rights of the Child.

IN THE COURTS 

The European Court of Human Rights have requested that the UK provide written responses to the application of NSK v the UK. This concerns an Iraqi asylum seeker’s human rights if removed to Rwanda, and in particular his Article 3 rights (prohibition of torture and inhuman and degrading treatment) on account of the risk of harm that he would face while awaiting decisions on his asylum application in Rwanda. The Court have also notified the UK government that the interim measures which were implemented by the ECtHR in June 2022 to prevent the applicant’s removal to Rwanda, have now been lifted. This is due to the fact that the High Court had quashed the Home Secretary’s decision to remove NSK to Rwanda becuase of a failure to properly consider the applicant’s evidence and also a failure to provide adequate reasons for the decision. A summary of the legal human rights questions that the UK now has to answer, can be found here. 

The European Court has also determined that there was a violation of Article 10 (freedom of expression) in the protest case of Drozd v Poland. This case concerned a year-long ban on entry to the Sejm building which had been imposed on protesters against the Government’s judicial reforms. In particular, the protesters had displayed a banner outside the Sejm reading “Defend Independent Courts”. Distinguishing between protests that actually interfere with parliamentary debate and those which occurred outside of the building, the court held that in this case the sanction was not justified and violated Article 10.