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On Thursday, representatives from Liberty, Amnesty International, Human Rights Watch, and Inclusion London addressed journalists at a briefing in Westminster to call for politicians and the public to stay alert to human rights issues over the election campaign period. Warnings were given about the diminution in worker’s and migrant’s rights, among others, in recent years. Calls were made by multiple representatives for closer scrutiny of the potential implications of challenges to human rights frameworks such as the HRA and ECHR. “Human rights in the UK have too long been cast in political debate as an obstacle”, said Sacha Deshmukh, Chief Executive of Amnesty International. “In reality, they can provide solutions to the problems we face here, at home, and on the global stage”.
Several anti-racism campaigning groups, led by Action for Race Equality, published a manifesto last Friday in anticipation of Windrush Day calling for immediate reform to the Windrush Generation documentation scheme, claiming that the ongoing backlog is worsening the ‘unconscionable’ trauma inflicted upon the Windrush Generation. Government figures suggest over 50,000 individuals remain eligible for the scheme. Saturday saw the sixth annual celebration of Windrush Day, marking 76 years since the arrival of the HMT Empire Windrush in 1948 which carried hundreds of passengers arriving to the UK from the Caribbean. The Windrush Generation had been invited to Britain in an attempt to help rebuild the post-war economy. In April 2018, the ‘Windrush scandal’ begun when it emerged that the Home Office had kept no formal records of Commonwealth individuals living in the UK with indefinite leave to remain granted under the Immigration Act 1971. This had resulted in those affected being unable to prove their legal migration status, thus unable to access healthcare, housing, employment and more. Many were deported or threatened with deportation. Windrush Day celebrates the legacy of these individuals in the UK and the contributions they have made to British society. The event was marked on Saturday with exhibitions, block parties, and other festivities.
In Other News
Last Wednesday, the UN Office for Human Rights published a thematic report finding that Israeli airstrikes in Gaza might have ‘systematically violated’ several of the ‘fundamental principles of international humanitarian law on the conduct of hostilities’. ‘When committed intentionally’, the report states, ‘such violations may amount to war crimes’. Six events were investigated as emblematic incidents of attack since October 7th. The events were assessed across the principles of distinction, proportionality, and precautions in attack, finding breaches of all. ‘The scale of human death and destruction wrought by Israel’s bombing of Gaza since 7 October has been immense’, the report states. The report calls for immediate, thorough, and transparent investigations into all allegations of violations of international human rights law, noting that the time already elapsed since several of the incidents assessed ‘calls into serious question the compliance of [Israeli Government] processes with international obligations to ensure prompt and effective accountability’. Israeli representatives have condemned the report. Israel’s mission to the UN have stated they believe “the only objective of this thematic report is to lambast and single-out Israel, while further shielding Hamas terrorists in Gaza”.
Last Tuesday, Thailand’s Senate passed a marriage equality bill by an overwhelming majority during an ad-hoc parliamentary session, the bill garnering the approval of 130 out of 152 members. The country will become the first in Southeast Asia to recognise same-sex marriage and the third Asian jurisdiction after Taiwan and Nepal. The bill will become effective following royal assent and 120 days after publication in the Government Gazette. The bill will amend Thailand’s Civil and Commercial Code to replace gendered words like ‘man’ and ‘woman’ with gender neutral alternatives such as ‘individual’. Mookdapa Yangyuenpradorn, representative for the human rights organisation Fortify Rights, has called the bill’s passage a “triumph for justice and human rights”. She added that “marriage equality is fundamental to human dignity, and it is essential that Thailand protects these rights without delay or discrimination.”
In the Courts
The Namibia High Court has held that the common law offences of sodomy and unnatural sexual offences are unconstitutional as they amount to unjustified discrimination against the LGBT community. As such, the impugned laws have been declared invalid. In June 2022, Namibian LGBT+ activist Friedel Dausab launched a legal challenge to the constitutionality of Namibia’s anti-homosexuality laws. The laws criminalise same-sex sexual activity – the campaign sought to see the laws held unconstitutional and to overturn the convictions made under them. In May 2023, the Namibian Supreme Court recognised same-sex marriages lawfully entered abroad, after which the parliament passed bills restricting marriage to those of opposite sex. Support or promotion of same-sex unions was criminalised with up to 6 years imprisonment. Dausab has celebrated the judgment, stating: “I feel elated. I’m so happy. This really is a landmark judgment, not just for me, but for our democracy.”
In this series, Lucy McCann and Rajkiran Arhestey speak to Lady Justice Whipple, Sally Smith KC, Clodagh Bradley KC, Cara Guthrie, Judith Rogerson, Isabel McArdle, Emma-Louise Fenelon and Chloe Turvill about their experiences, in the hope of drawing out some key reflections and continuing the conversation about gender and the profession.
In this episode, Lucy and Kiran discuss a number of issues relating to parenthood, including pregnancy, maternity and paternity leave, childcare, gendered assumptions about caring and family life.
A report published by the Runnymede Trust on Monday found that black people, and especially black children, are subject to disproportionate rates of strip search across all police forces in England and Wales. The report analysed Home Office data and concluded that black children are 6.5 times more likely to be subject to a strip search than white children, and black adults 4.7 times more likely than white adults. The report described how strip searching “can be severely traumatic and humiliating, particularly for children, with long lasting effects such as anxiety, depression and lower educational attainment”. The Home Office recently a conducted a consultation on proposed reforms to police codes of practice which would create additional protections for children subjected to strip searches, noting that “too often… safeguarding and child protection have not been sufficiently prioritised”. The government’s response is due to be published later this year.
It was the seventh anniversary of the Grenfell Tower fire on Friday. Campaigners from the Infected Blood scandal and the COVID-19 Bereaved Families group joined Grenfell United to call for a national body to scrutinise the implementation of recommendations made following inquests and inquiries. Campaigners said that the lack of oversight prevents lessons being learnt that could prevent future deaths, and argued that if recommendations made by a coroner following the 2009 Lakanal House fire had been implemented, the Grenfell Tower fire might have been avoided. The Grenfell Tower Inquiry’s Phase 2 Report will be published on 4 September.
In international news
Lord Sumption warned that Hong Kong is “slowly becoming a totalitarian state” in an opinion piece explaining his decision to resign from the territory’s final court of appeal. Lord Sumption explained that the “oppressive atmosphere” and challenges such as the “illiberal” national security legislation meant he felt it was no longer realistic to hope that he could help sustain the rule of law as an overseas judge. The government of Hong Kong issued a statement refuting Lord Summation’s comments, stating that any claims of political pressure on judges were “totally baseless”.
In the courts
On Tuesday the European Court of Human Rights handed down judgment in Nealon and Hallam v United Kingdom. Nealon and Hallam spent 17 and 7 years in prison respectively before their convictions were quashed by the Court of Appeal. The two were denied compensation for the time they had spent in prison because they could not prove their innocence beyond all reasonable doubt. The pair argued that once their convictions had been overturned, they should be presumed innocent and that the compensation scheme therefore violated their Article 6 rights. The Court found that Article 6 was engaged, but a majority of 12 found that that the UK’s compensation rules did not breach the presumption of innocence in practice. The Court held that requiring an applicant to show beyond all reasonable doubt that they did not commit an offence was not tantamount to a positive finding that they did the commit the offence. Further, the majority commented that it was not the Court’s role to “determine how States should translate into material terms the moral obligation they might owe to persons who had been wrongfully convicted”. A dissenting judgment of five judges noted that the test in the UK was “virtually insurmountable” and revealed a “highly undesirable attitude towards the presumption of innocence”.
This article was first published in Edition 33 of the Journal of Environmental Law and Management. It is reproduced here with the kind permission of the editors at Lawtext Publishing Limited
On Monday 9 April 2024 the Strasbourg Court handed down judgment in three cases involving climate change: Carême v France (ECHR no 7189/21), Duarte Agostinho v Portugal and 32 others ( ECHR no 39371/20), and Verein Klimaseniorinnen v Switzerland [2024] ECHR 304, no 53600/20.
Interestingly, shortly before the Strasbourg judges had reached their decision in these three cases, the New Zealand Supreme Court considered an application for strike-out of a challenge to a number of carbon-emitting businesses based on the tort of public nuisance as well as a new form of action, that involved a duty to cease materially contributing damage to the climate system: Michael John Smith (appellant) v Fronterra Co-operative group Ltd and Others [2024] NZSC 5. I will come back to this judgment later in this article.
First, we turn to the more recent Strasbourg cases. Each of these cases was examined by the same composition of the Grand Chamber, and each raised unprecedented issues before the Court.The particular nature of the problems arising from climate change in terms of the Convention issues has not so far been addressed in the Court’s case law. I will concentrate on the one successful application, Verein Klimaseniorinnen v Switzerland. Both Carême and Duarte Agostinho failed with their applications on procedural grounds; most notably, the Duarte Agostinho application was dismissed due to a failure to exhaust domestic remedies.
In Verein Klimaseniorinnen, some female senior citizens and a representative organisation (Klimaseniorinnen) argued that the impact of global warming on their health breached a number of Articles of the ECHR. The Strasbourg Court was satisfied in this instance that they had exhausted their local remedies, although it found that the individual applicants had not satisfied ‘victim status’ for the purposes of Article 34 ECHR; they had failed to demonstrate the existence of a sufficient link between the harm they had allegedly suffered (or would suffer in the future) and climate change. But the Court held, by 16 votes to one, that the applicant association did have locus standi in the present proceedings and that its com- plaint should be examined under Article 8 of the Convention.
Having admitted the association’s complaint, the Grand Chamber found that states are under a positive obligation under Article 8 to provide effective protection from ‘serious adverse effects of climate change on their life, health, well-being and quality of life’. In order to achieve this, states must enforce regulations that are capable of mitigating current and future impacts of climate change by having in place a plan for the reduction of greenhouse gas (‘GHG’) emissions and achieving carbon neutrality over the decades leading to 2050. Switzerland had failed in this in that it had not quantified a carbon budget, nor had it set limits on greenhouse gas emissions. It had also exceeded its previous GHG emission reduction targets, which resulted in a violation of Article 8. There was ‘no doubt’, said the Court, that climate change-induced heatwaves had caused, were causing and would cause further deaths and illnesses to older people and particularly women (represented by the Klimaseniorinnen association).
There was one sole dissent from the majority’s findings on admissibility and the merits. Further on in this article I will explore the different opinion of the British representative on the panel, Judge Eicke. Before that, we will look at the main arguments before the Court.
The Swiss Government argued that global warming had not reached the necessary level to create a tangible effect on the private and family life of the individual applicants under Article 8, including on their mental well-being.
The respondent state party also maintained that the Court should not allow the applicant association to circumvent the mechanism established under the Paris Agreement by seeking to establish, under the Convention, an international judicial control mechanism to review the measures to limit GHG emissions.
Various other governments intervened in this application to say, in effect, that the response to climate change should be an effective global response and that the Court should not, indeed could not, engage in a form of law- making and regulation which would bypass the role of the democratic process and institutions in the response to climate change.
The Swiss Federation also had quite a forceful argument on the in limine question of jurisdiction: it submitted that GHG emissions generated abroad could not be considered as attracting the responsibility of Switzerland as those emissions could not be directly linked to any alleged omissions on the part of Switzerland, whose authorities did not have direct control over the sources of emissions. Moreover, the whole system established by the UNFCCC, the Kyoto Protocol and the Paris Agreement was based on the principle of territoriality and the responsibility of states for emissions on their territory.Thus, said the respondent, the applicants could not complain about certain imports containing ‘embedded emissions’ from other jurisdictions. The Court did not agree. Although ‘embedded emissions’ contained an extraterritorial aspect, it did not raise an issue of Switzerland’s jurisdiction in respect of the applicants, but rather one of Switzerland’s responsibility for the alleged effects of the ‘embedded emissions’ on the applicants’ Convention rights.
A group of UN experts has expressed concern regarding deception and exploitation faced by migrants coming to work in the UK. The Seasonal Worker Scheme, put in place to cover labour shortages in the UK, has been criticised for creating conditions where deception, exorbitant recruitment fees, debt bondage, undignified living conditions and potential deportation are widespread. This is due to some recruitment agencies charging illegal recruitment fees, sometimes thousands of pounds, so migrants are frequently in debt even before they arrive in the UK. Once in the UK, they may find that there is no work for them, fewer hours than promised, or they may be forced to work in exploitative conditions. As the migrants’ visas do not allow them to change employers within the UK, many remain working under such conditions due to the threat of being removed from the UK. The Bureau of Investigative Journalism has published recent investigations on the hostile and humiliating working conditions faced by agricultural labourers and care workers, arguing that in some cases their treatment amounts to modern slavery.
In international news
President Biden has imposed strict new measures allowing officials at the Southern Border of the USA to turn away asylum-seekers. The Presidential proclamation states that when border crossings exceed the threshold specified by the President (currently 2,500), asylum seekers who cross the border without permission will be barred from applying for asylum until border crossings drop below a seven-day average of 1,500. The American Civil Liberties Union (ACLU) has announced that they are launching a legal challenge against the new measures.
Ambassador Ammar Hijazi, representing Palestine, has sought to intervene in the case between South Africa and Israel at the International Court of Justice (ICJ). He argues that Palestine has the right to intervene under Article 62 of the Statute of the ICJ, which provides that a state may apply to intervene in a matter if it considers that it has a legal interest in the case. He also argues that the Palestinians whom he represents are permitted to intervene under Article 63, which provides that every state notified of a pending convention concerning them is permitted to intervene in proceedings. The United Kingdom does not recognise Palestine as a state.
The US House of Representatives has passed a Republican bill, with support from some Democrats, sanctioning the International Criminal Court (ICC), after ICC Prosecutor Karim Khan KC applied for arrest warrants for, among others, Israeli officials PM Benjamin Netanyahu and Yoav Gallant. The Illegitimate Court Counteraction Act sanctions any foreign individual who directly or indirectly aids the International Criminal Court in investigating, arresting, detaining or prosecuting “protected persons”, that is US officials or the officials of US allies, in particular Israel. The sanctions laid out in the bill are property blocking (i.e. blocking and prohibiting all transactions in all property and interests in property), imposing inadmissibility for visas to the USA and revoking current visas to the USA.
In the courts
The High Court has held that the Home Secretary acted unlawfully in failing to provide immigrants with documentary proof that they are legally in the UK under “section 3C leave”. Section 3C of the Immigration Act 1971 provides that where an immigrant with leave to remain in the UK makes an immigration application before the expiry of their leave, they may lawfully remain in the UK until the Home Office finishes processing their application. Processing for some immigration applications can take months or even up to a year. During this time immigrants lawfully in the UK can have difficulty accessing employment, housing or medical care due to the “compliant environment” policies. The High Court held that the Home Secretary’s failure to provide digital evidence of section 3C leave was irrational: “The underlying purpose of the legislative framework is that there should be a hostile and unwelcoming environment for those who are unlawfully present and so who are undocumented. The corollary of this is that those who are lawfully here should not face the hostile environment. That can only happen if they are documented”. The court also held that the Home Secretary breached his duties to promote the welfare and best interests of children impacted by section 3C leave.
The High Court has reiterated once again that duties under the Children Act 2004 apply to all children in the UK, no matter their immigration status, and Kent County Council cannot derogate from these duties with regard to unaccompanied asylum seeking children. Kent County Council is struggling to accommodate the many unaccompanied children arriving in the UK after travelling across the English Channel. Until last year the unaccompanied children were accommodated in hotels, until the High Court found that this practice was unlawful. Kent County Council issued what it called “section 11 notices” stating that it cannot safely accommodate the children. The court held that there was no statutory basis for using section 11 of the Children Act 2004 to “attenuate” duties to accommodate children under the act; instead section 11 “imposes an obligation to make arrangements for ensuring that Kent CC’s functions are discharged having regard to the need to safeguard and promote the welfare of children”.
The High Court in Belfast struck down sections 12 to 16 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 on Friday. The law granted automatic anonymity to people who are suspected of sexual offences where an allegation has been made to the police or the police have taken any step to investigate the offence, prohibiting reporting which might lead to the identification of such an individual. The prohibition only applied pre-charge, but continued for the duration of the suspect’s life and 25 years thereafter. The court found that the law was incompatible with Article 10 of the European Convention on Human Rights and did not strike a fair balance in public interest journalism cases, observing that “[p]ublic interest journalism serves a vital role in any democratic society”.
In other UK news, three prisoners were taken to hospital on Friday after disorder at HMP Parc, a prison in Bridgend, Wales, which is run by the private security firm G4S. 10 prisoners have died at the prison in the last 3 months. Families of those who have died at the prison had held a demonstration outside the prison earlier the same week. Deborah Coles, the director of INQUEST, said that “[t]he level of death and disorder at prisons like this one shows a complete failure of accountability on the part of government and a loss of control by ministers”.
In international news
An investigation by the Guardian and the Israeli-based magazines +972 and Local Call has alleged that Israel has deployed its intelligence agencies to surveil, pressure, and allegedly threaten senior ICC staff over the last decade. Israeli intelligence allegedly captured the communications of ICC officials, intercepting phone calls, messages, emails and documents. Yossi Cohen, the former head of Israel’s foreign intelligence agency, allegedly threatened Fatou Bensouda, a former ICC prosecutor, in an attempt to pressure her to abandon a war crimes investigation relating to Israel’s activities in the occupied Palestinian territories. The Guardianreported that Cohen’s activities were “authorised at a high level and justified on the basis that the court posed a threat of prosecutions against military personnel”. Cohen is alleged to have told Bensouda “[y]ou don’t want to be getting into things that could compromise your security or that of your family”. A spokesperson for Israel’s prime minister’s office said in response to the investigation: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.”
On Wednesday the European Commission announced that it considers that there is no longer a clear risk of a serious breach of the rule of law in Poland, and that it would therefore close the Article 7 procedure against Poland which had been triggered in 2017. Article 7 of the Treaty of the European Union allows the EU to suspend certain rights from a member state. The Commission stated that Poland has introduced legislative and non-legislative measures to address concerns regarding the independence of the judiciary, and that it will continue to monitor the implementation of those measures. Human Rights Watch criticised the move as premature.
In the courts
On Thursday the High Court of the Hong Kong Special Administrative Region delivered its verdict for 16 of the 47 activists and former politicians known as the ‘NSL 47’. The 47 were charged with conspiracy to subvert state power under the new National Security Law, which was passed in March this year. 14 were convicted, with two being acquitted and the remaining 31 pleading guilty. The charges arose from the activists’ participation in an unofficial primary election in July 2020 to pick opposition candidates for the 2020 legislative elections, which were then postponed. The UK said the case showed how authorities have used the controversial National Security Law to “stifle opposition and criminalise political dissent”. A spokesperson for Beijing’s Office for Safeguarding National Security defended the prosecution, saying the OSNS supported the Hong Kong judiciary’s decision to “punish acts and activities endangering national security according to the law, with no tolerance for any interference by external forces in the rule of law in Hong Kong.”
The Government’s response to the delayed Ouseley report was finally published on 29 May 2024, the last day before the dissolution of Parliament. In this piece a leading Special Advocate describes that response as underwhelming, especially after so long.
Let us turn to NIHRC and JR295’s applications for judicial review [2024] NIKB 35, in which the High Court disapplied sections of the Illegal Migration Act 2023 (IMA) – the Government’s flagship statute to tackle illegal migration – in Northern Ireland. It is important to understand why, despite some alarming reactions to the judgment, it was both foreseen and avoidable – and why the alarm should be sounded in the Houses of Parliament instead.
Following the Strasbourg Court’s dismissal of Kosher and Halal groups’ challenge to the ban on no-stun slaughter of food animals, Rosalind English talks to animal welfare campaignerPaula Sparks about the complex web of laws surrounding our treatment of farm animals in the abattoir. The welfare rules in the UK post Brexit require a level of “protection of animals at the time of killing” (known as PATOK), but there are many difficult areas where this protection is difficult and expensive to apply, such as the depopulation of intensively reared birds due to highly pathogenic avian flu, or the disposal of male chicks in hatcheries where only laying hens are commercially viable.
The cases and legislation referred to in the episode are as follows:
On 20 May, the Infected Blood Inquiry, chaired by Sir Brian Langstaff, published its final report. The inquiry was set up to investigate the circumstances in which people treated by the NHS were given infected blood and blood products, in particular since 1970. The inquiry found that more than 3,000 deaths of NHS patients are attributable to infected blood, blood products and tissue. The report details the many failures which lead to this situation, such as flaws in the licensing regime which allowed for the import of high risk blood products, failing to ensure sufficiently careful donor selection, and treating children at Treloar School (a school for disabled children) with risky commercial blood products for research. The report is strongly critical of the lack of candour shown by the NHS and successive governments. Patients were told they were receiving “the best treatment available” and some documents were deliberately destroyed. The report makes many recommendations to memorialise what happened to the people affected and to ensure lessons are learnt, yet the “principal recommendation” is that “a compensation scheme should be set up now”.
The Post Office (Horizon System) Offences Act received the Royal Assent this week. This is the final stage of the legislative process after the Bill was examined by the House of Lords. The Bill will quash the convictions of hundreds of postmasters and others in England, Wales and Northern Ireland who were charged with fraud, theft and other offences due to the faulty Post Office Horizon IT system. The “Post Office scandal” is also the subject of an inquiry led by Sir Wyn Williams. Paula Vennells, the former CEO of the Post Office Ltd, gave evidence to the inquiry this week. Recordings of the inquiry hearings are available here.
International Criminal Court (ICC) Prosecutor Karim Khan KC made an application for arrest warrants for Yahya Sinwar (Head of the Islamic Resistance Movement “Hamas” in the Gaza strip), Mohammed Diab Ibrahim Al-Masri (Commander-in-Chief of the military wing of Hamas), Ismail Haniyeh (Head of the Hamas Political Bureau), Benjamin Netanyahu (Prime Minister of Israel), and Yoav Gallant (Minister of Defence of Israel). Khan KC submits that the Hamas officials bear criminal responsibility for war crimes and crimes against humanity including extermination, murder, hostage taking, rape and other acts of sexual violence, and torture. He submits that the Israeli officials bear criminal responsibility for war crimes and crimes against humanity including starvation of civilians as a method of warfare, wilful killing or murder, and intentionally directing attacks against a civilian population. Khan KC also published a report by international law experts arguing, amongst other things, that the ICC has jurisdiction over the alleged war crimes in Israel/Palestine. The International Court of Justice (ICJ) has reaffirmed its previous measures and published further provisional measures in relation to South Africa’s case against Israel. One of the most significant measures requires Israel to “immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its destruction in whole or in part”.
A French court found three Syrian officials guilty of crimes against humanity and sentenced to life imprisonment in absentia. The three men are Ali Mamlouk (former Head of the National Security Bureau), Jamil Hassan (Head of the Air Force Intelligence Directorate) and Abdel Salam Mahmoud (former director of the directorate’s investigations branch). The Syrian officials were charged with complicity in the arrest, torture and deaths of Patrick Dabbagh and Mazzen Dabbagh, both of whom had dual French-Syrian nationality. This case is the first time officials working for the regime led by Bashar al-Assad have been tried and convicted in France.
In the courts
The High Court held that protest regulations, that gave the police the power to intervene in protest where they caused “more than minor” disruption, were ultra vires (i.e. beyond the legal power of the Secretary of State). The regulations were ultra vires because the primary legislation gave the police the power to intervene where there was “serious” disruption. The Secretary of State used a Henry VIII power (i.e. a delegated power which allows them to amend primary legislation using secondary legislation) to define “serious” as “more than minor”. The court held that this was ultra vires because “as a matter of ordinary and natural language ‘more than minor’ is not within the scope of the word ‘serious’”. The regulations were also unlawful because they were introduced after an procedurally unfair and one-sided consultation procedure, in which the Secretary of State consulted law enforcement agencies but failed to consult with the public or any body or organisation who may have opposed the proposed regulations.
Julian Assange has been given permission to appeal his extradition to the USA to face trial for conspiracy to obtain and disclose national defence information, after the US government failed to provide diplomatic assurances requested by the High Court. The court’s ex tempore judgment was reported on by Joshua Rozenberg KC (hon) here.
A bill in Georgia demanding that all foreign entities and NGOs which receive more than a fifth of their funding from international sources must be labelled as ‘bearing the interests of a foreign state’ passed its third and final reading in the Tbilisi Parliament. Such organisations would be subjected to increased scrutiny by the Georgian Justice Ministry and could be subjected to fines if they fail to disclose sensitive information that is requested of them. There are fears that the bill may be used to silence dissidents and will harm Georgia’s chances of joining the EU. The High Representative of the European Commission has confirmed that “the adoption of this law negatively impacts Georgia’s progress on the EU path. The choice on the way forward is in Georgia’s hands”. The US State Department has also said it is “gravely disappointed” by the advance of the bill, which it has called “Kremlin-inspired”. Major protests against the bill have been ongoing for nearly a month, and there is little indication they will die down. The protestors have been met with riot police, leading to violent altercations. The British Embassy in Tbilisi has called for an end to the “unlawful intimidation” of protestors, suggesting tactics such as “threatening phone calls, unlawful detention, beatings and personalised posters portraying civil society members as traitors” have been deployed by police. Georgia President Salome Zourabichvili – an opponent of the Prime Minister, Irakli Kobakhidze who supports the bill – told the BBC she would veto the law. However, the Prime Minister’s party Georgian Dream has sufficient numbers to overrule her, having just backed the bill in its final reading by 84 votes to 30.
The New Yorker is in hot water following the publication of a story on the upcoming retrial of Lucy Letby, who was convicted in August 2023 of the murder of seven babies and attempted murder of a further six. The jury failed to return a verdict on a further six counts of attempted murder, one of which will be the subject of the retrial in June. The Court has ordered reporting restrictions in the lead up to the retrial in order to prevent the trial being prejudiced and to protect the integrity of the jury. The New Yorker article was in contravention of these restrictions – which could amount to contempt of court. The article has now been blocked online and is inaccessible to UK readers, but print editions featuring the story on the cover were circulated last week. While the New Yorker does not have an incorporated entity in the UK against whom contempt orders can be enforced, its parent company Condé Nast does. It remains to be seen whether action will be taken. Conservative MP David Davis queried the blocking of the article in the UK, stating it seems “in defiance of open justice”. Other commentators have suggested the opposite, that the purpose is to ensure Letby receives the fair trial to which she is entitled.
In the Courts
The High Court has declared that parts of the Police, Crime, Sentencing and Courts Act 2022 are incompatible with the human rights of travellers. The Act provided for an increase in the duration for which police can ban travellers from an area from 3 to 12 months, as well as conferring powers upon police to seize homes and fine, arrest, or imprison those living in unauthorised encampments. Gypsies, Roma, and travellers are considered a distinct racial group and are thus protected from discrimination on grounds of their identity. The Court found that the increase in the no-return period constituted a disproportionate interference on the travellers’ Article 14 ECHR rights (freedom from discrimination) when read with Article 8 (the right to respect for private and family life) as a result of the unavailability of transit sites where travellers can stay without fear of a criminal penalty. The Court issued a rare declaration of incompatibility, which prompts Parliament to examine the offending legislation and consider amending it in order to achieve compatibility with the ECHR. Marc Willers KC, lead counsel for the Claimant, said: “This is hugely significant judgment. In granting the declaration of incompatibility, the court recognised that there is a lack of lawful stopping places for Gypsies and Travellers and that unless the government increases provision, the law as currently drafted will amount to unjustified race discrimination.” The charity Friends, Families, & Travellers who acted as intervenors in the case have called the judgment a “serious” blow to the Police Act 2022.
The High Court in Northern Ireland has upheld a previous ruling that parts of the Illegal Migration Act 2023 are incompatible with Article 2 of the Windsor Framework, and further declared that the offending sections of the Illegal Migration Act are incompatible with the ECHR. Article 2 WF provides that there must be no diminution of rights conferred under the Good Friday Agreement as a result of the UK’s withdrawal from the EU. The Windsor Framework is legally ‘supreme’, meaning any legislation with which it conflicts must be disapplied. Every provision challenged before the Court was found to cause a diminution in rights and has therefore been disapplied in Northern Ireland. This includes a number of significant provisions, including on detention and removal. A declaration of incompatibility was also issued in respect of various provisions of the IMA, declaring the provisions to be incompatible with ECHR Articles 3 (prohibition of torture), 4 (prohibition of slavery), & 8 (right to respect for private and family life). Although Humphreys J acknowledged the status of declarations of incompatibility as “a measure of last resort”, the making of one was justified on account of the “significant nature of the violations identified”. DUP leader Gavin Robinson told Good Morning Ulster that he believes “if the government do not assert the sovereignty of Parliament and ensure a UK-wide immigration system”, Northern Ireland risks becoming a “magnet” for migrants. Lord Sharpe, Parliamentary Under-Secretary of State, stated to the House of Lords that “the Government will take all steps to defend their position, including through an appeal”. PM Rishi Sunak has suggested that the ruling will not affect the Government’s efforts to remove migrants to Rwanda.
A whistleblower who leaked documents revealing war crimes committed by the Australian military in Afghanistan has been sentenced to prison. David McBride pled guilty to the charges after the evidence supporting his whistleblowing defence was struck out on grounds of national security. McBride had been a military lawyer who did two tours of Afghanistan, including one with the Australian special forces where he became concerned with the conduct of commanders towards their officers. Having tried internal procedures and reporting to the defence and police minister, McBride eventually leaked documents he had covertly copied to the Australian Broadcasting Corporation believing they would prove that Australian commanders were scapegoating their officers in an attempt to escape allegations of unlawful killings. Instead, the dossier included The Afghan Files, a series of reports which revealed the commission of war crimes Australian forces in Afghanistan. The Brereton Report has since found credible evidence of the war crimes revealed within the documents. Despite this, calls to drop the charges against McBride were refused. Mossop J during sentencing emphasised the severity of the offences charged – stealing Commonwealth property, breaching the Defence Act and disclosing confidential information – and placed weight upon the fact that McBride’s actions constituted a “gross breach of trust” for which he shows “no contrition”. He has been sentenced to 5 years and 8 months. The sentence has led to calls for increased whistleblower protection in Australia. The Asia Director at Human Rights Watch has called it “a stain on Australia’s reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person convicted in relation to these crimes is a whistleblower not the abusers”.
Personal data is intimately connected to privacy (art 8, ECHR) but is regulated by specific data protection regimes, such as the UK GDPR. Attention-grabbing legal issues arising out of Big Data dominate the public discourse around data protection: can generative AI use datasets without breaching intellectual property laws; how should the NHS use its mass of personal data; should we be compensated for the value of the data we provide to tech companies who go on to use it in advertising.
But on the other end of the scale from big data claims sits what might be thought of as ‘small data’ – issues around the use of one individual person’s data and the sometimes serious effects that can have. Jasper Gold joins Lucy McCann in a new episode of Law Pod UK to discuss the intersection of data protection, distress and personal injury, and consider some of the legal and tactical issues for litigants involved in these claims.
Brown v Commissioner of the Police of the Metropolis & Anor(2016), Claim No. 3YM09078 (at first instance) and [2019] EWCA Civ 1724 (in the Court of Appeal, on the issue of qualified one way costs shifting)
The case of R (TTT) v Michaela Community Schools Trust [2024] EWHC 843 (Admin) in the High Court before Mr Justice Linden concerned a claim brought by a pupil referred to as a TTT (“the Claimant”) against the Michaela Community Schools Trust; (“the School”). The School is a secular secondary free school in the London Borough of Brent, which appeared as an interested party. The School is ethnically and religiously diverse, although over half of the pupils, including the Claimant are Muslims [1].
This post addresses only Ground 1 of the Claimant’s claim – alleged breach of the right to religious freedom under Article 9, ECHR – although the judgment (all 83 pages of it!) includes extensive discussion on Indirect Discrimination [214-232], the Public Sector Equality Duty (“PSED”) [257-273] and school exclusions [294-311], none of which were successful save for Ground 4b which concerned procedural unfairness around exclusions.
This week Israel began military operations in Rafah, a town at the south of the Gaza strip where 1.4 million displaced Palestinians are sheltering. Israeli PM Benjamin Netanyahu stated that the military offence was necessary to secure the return of Israeli hostages and eliminate Hamas: “military pressure on Hamas is an essential condition for the return of our hostages”. The announcement was met with a mixed response from the US, a key Israeli ally. At the beginning of the week Lloyd Austin, the US defence secretary, stated that the Biden administration paused the supply of weapons to Israel. Later in the week the US state department released a declassified report (available here), which stated that Israel is likely to have violated international law but confirmed that the supply of weapons would continue. South Africa is once again seeking provisional measures from the International Court of Justice, arguing that the Rafah offensive “gives rise to new facts that are causing irreparable harm to the rights of the Palestinian people in Gaza”. In a separate development, the UN General Assembly voted to enhance the status of the Palestinian delegation within the UN, and to urge the Security Council to give “favourable consideration” to full Palestinian membership.
Human Rights Watch has published a report about the conflict in Sudan, alleging that the Rapid Support Forces (RSF) and related militias are carrying out ethnic cleansing in West Darfur. The report details the RSF’s attacks in El Geneina, the capital of West Dafur between April and November 2023. Human Rights Watch alleges that the attacks constituted a campaign of ethnic cleansing against the Massalit and other non-Arab populations in the area, and included serious abuses including torture, rape and looting. The report cites a UN panel of experts which estimated that approximately 10,000 to 15,000 people were killed in El Geneina in 2023. A UNHCR explainer about the origins of the conflict is available here.
The Ministry of Justice has introduced a pilot scheme providing free counselling and 24/7 support for jurors following difficult cases. The pilot will run for ten months in 15 courts; jurors will be provided six free counselling sessions alongside a 24/7 telephone helpline with support advice and information. The current jury trial rules which allow for majority verdicts have come under scrutiny this week as research by Appeal, the miscarriage of justice charity, has shown that at least 56 miscarriages of justice in England and Wales occurred where the jury was split. The charity has published a report calling for a requirement of jury unanimity for criminal convictions and a repeal of s.8 of the Contempt of Court Act 1981, which guarantees the confidentiality of jury deliberations, so that the fairness of jury trials can be more closely studied.
The government has accepted a proposal put forward by Lord Reed, President of the UK Supreme Court and the Judicial Committee of the Privy Council (JCPC) to enable overseas judges to sit on the JCPC. Lord Reed commented that the change would “enhance the quality of the Privy Council’s decision-making” by providing “the benefit of the opinion of a judge with direct experience of local conditions”.
A substantial majority of Special Advocates has felt driven to decline to accept new appointments to the role. This is a result of the Government’s continuing failure to provide proper support for the controversial system for secret evidence and closed proceedings, avoidably heightening the unfairness that is inherent in such cases. Special Advocates are the security-cleared lawyers appointed to represent the interests of those excluded from closed proceedings and they are central to the functioning of the system.
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