By: Guest Contributor


Supreme Court dismisses solitary confinement appeal

22 July 2021 by

R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28

The Supreme Court has unanimously dismissed an appeal which considered whether treatment throughout a 55 day period in solitary confinement of a then 15-year-old appellant in Feltham Young Offenders’ Institution constituted a violation of Article 3 of the European Convention on Human Rights.

Facts

The case concerned the treatment of the Claimant, AB, whilst he was detained at Feltham Young Offenders’ Institution (FYOI) at the age of 15, between the period of 10th December 2017 and 2nd February 2017. AB had been remanded in custody at FYOI whilst awaiting sentence for indecent exposure and sexual assault. The pre-sentence report concluded that his risk of dangerousness was high, as was his risk of causing serious harm.

Throughout the above period at FYOI, AB had been placed under a “single-unlock” system, whereby he could not leave his cell when any other detainees were out of their cells, apart from some time in “three-officer unlock” which involved three officers being present whenever he left his cell. It was undisputed that he was placed under this regime for his own safety, as well as for the protection of others.

AB appealed to the Supreme Court to decide two questions. The first: whether the solitary confinement of persons under 18 automatically constitutes a violation of article 3 of the European Convention on Human Rights (“the Convention”). The second: if not, whether there is a universal test for the compatibility of solitary confinement of children, namely that “exceptional” circumstances must determine the treatment as “strictly necessary”.


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Child Tax Credit: Two-Child Limit and the Limits of Review

16 July 2021 by

SC, CB and 8 children, R. (on the application of) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26 (9 July 2021)

The Supreme Court has rejected a challenge against the two-child limit on the individual element of child tax credit payments. In a unanimous judgment delivered by Lord Reed, the Court held that the provision imposing the limit was not contrary to the appellants’ Convention rights.

The Court found that the rule was potentially indirectly discriminatory against women, as well as children living in households with more than two children. However, any such discrimination could be validly justified and was considered to be proportionate on the basis of ‘protecting the economic well-being of the country’. 

Background

Child tax credit is a welfare benefit scheme designed to provide financial support to families with children. The individual element of child tax credit, which is the subject of this case, entitles an individual to £2,830 per annum in respect of each child they are responsible for. 

In 2015, the Conservative Party announced as part of that year’s General Election manifesto that they intended to limit a person’s entitlement to child tax credit to just two children, unless one of a narrow range of prescribed exceptions applied. This was part of a wider policy pledge to substantially reduce the amount spent on welfare benefits. 

In March 2016, a bill was passed to that effect, and the limit came into force in April 2017. 


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The Tigray Conflict: Ethiopia’s Humanitarian Disaster — Harry Sanders

3 June 2021 by

Map of the Tigray conflict, which began in November and remains ongoing

This article was written by Harry Sanders, a content writer for the Immigration Advice Service.

Since November 2020, the Tigray region in the north of Ethiopia has been the epicentre of an awful (and hugely underreported) humanitarian disaster. War and violence have sent the region’s inhabitants fleeing over the Ethiopian border in search of asylum, while those who have not escaped are left to suffer increasingly disturbing conditions. Although the conflict was declared ‘over’ very quickly by the Ethiopian central government, abhorrent human rights abuses have continued while humanitarian access has been turned away. To understand how a nation led by a Nobel Laureate has fallen from grace on the world stage so dramatically, it is important to consider the circumstances which led to the outbreak of violence, and furthermore what it may mean for the future of Ethiopia and her people.

Ethiopia has long been a fairly fractious nation in terms of the patchwork of demographics within its borders. The Tigray region (bordering Eritrea to the north) is home not only to a majority of Tigrayan people – who account for 6.1% of Ethiopia’s population – but also myriad other ethnic groups. The majority ethnic group in Ethiopia are the Oromo, comprising 34.4% of the Ethiopian people.

Upon taking office, Ethiopian PM Abiy Ahmed promised to heal Ethiopia’s ethnic divide; all things told, he has been fairly true to his word, and in 2019 he was awarded the Nobel Peace Prize for having brought an end to the 20-year old conflict with Eritrea. However, 2020 proved to be a defining chapter in Abiy Ahmed’s political career; citing social restrictions necessary to curtail the spread of COVID-19, he delayed the Ethiopian General Election from August 2020 to 5th June 2021. These actions were already disagreeable enough to some critics, though Abiy only stoked tensions further by having several of his rivals incarcerated. Most notably among these was Jawar Mohammed, who saw his ‘terror charge’ as a badge of honour and denounced PM Abiy for his blatant targeting of political opponents.


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The Chinese State attacks the Bar: A Call to Arms – Lord Sandhurst QC

31 March 2021 by

On 26 March, the Government of the People’s Republic of China announced sanctions against a number of British individuals and entities. Most publicity has been attracted by the inclusion of well-known politicians on the list. But the most sinister inclusion may be “Essex Court Chambers”. Whereas the sanctioning of a politician, who is unlikely to own property in China, is a largely symbolic gesture, the announcement in respect of the set of barrister’s chambers strikes at the heart of the English legal system and the services offered by English lawyers. It also has serious ramifications for all commercial transactions relating to China.

The decision against Essex Court Chambers is understood to be related to the fact that four individual members of those Chambers had together written an opinion concerning the treatment of the Uighur population in the Xinjiang Uighur Autonomous Region. It appears that that legal opinion was written pursuant to instructions received from the Global Legal Action Network. Each of the four barristers was thus providing independent legal advice for a client pursuant to their professional obligations and qualifications as members of the Bar of England and Wales subject to the regulatory supervision of the Bar Standards Board. According to the chambers’ website, my source for this material, none of those four barristers published that legal opinion.


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Pandemic NHS workers should be granted indefinite leave to remain — Aaron Gates-Lincoln

17 March 2021 by

There is widespread gratitude for NHS workers for their service during the ongoing pandemic

Migrant workers have been essential to the operations of the NHS ever since its inception in 1948. Over the decades, many programmes have been used to encourage and find overseas workers and help them migrate to the UK to be employed in the healthcare system, demonstrating our governments acknowledgment of how important they are. As early as 1949, campaigns were made by the UK government in the Caribbean to recruit NHS staff, through advertisements in local newspapers.

However, throughout the current COVID-19 pandemic, many have argued that migrant workers have not been given the rightful respect or recognition in which they truly deserve. Many of them have been putting their lives on the line every single day fighting against a deadly virus, yet still face immigration insecurity.

There are currently 170,000 overseas NHS workers from 200 countries residing within the UK, many of which have to apply every year for five years to renew their work visas. Some are required to have employers provide certificates of sponsorship for them, and if they do not, then they can be deported at any time despite their critical service to the country. These certificates are necessary for those applying for skilled worker visas, to prove that the conditions of the visa have been met. If they are not signed it becomes increasingly difficult for migrants to apply for the visa needed to remain in the UK. As the pandemic has raged on since March 2020, support for a Private Member’s Bill which would grant migrant NHS workers indefinite leave to remain has grown.


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Overseas Operations Bill: Getting Away With Murder – Dr Ronan Cormacain

20 January 2021 by

Pardons versus failure to prosecute

One of the many outrages perpetrated by Donald Trump in the waning of his Presidency was granting a pardon to four private military contractors for their role in the Nisour Square massacre.  Those military contractors had opened fire indiscriminately, killing 14 Iraqi civilians, including two children.  

As with many of Trump’s assaults on the Rule of Law, the thought was that this kind of abuse could not happen in the UK. But certainty over our moral high ground will be short-lived if Parliament passes the Overseas Operations (Service Personnel and Veterans) Bill – a Bill whose precise aim is to make it much harder to prosecute British military personnel for abuses (including murder) carried out overseas.  The Bill reaches Second Reading this week in the House of Lords.

Hurdles to prosecution under the Bill

The Bill introduces three substantial hurdles to the prosecution of British soldiers if the incident took place overseas more than five years ago.  The first is that prosecutions must only be “exceptional circumstances”.  The second is that the consent of the Attorney General is required.  The third is that, in contemplating prosecutions, prosecutors must place particular weight on a list of exculpatory factors, but with the absence of a list of factors tending in favour of prosecution.


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Freeman on the Land: Canadian lawyer responds

23 December 2020 by

What’s a judge to do when the Magna Carta/Freeman on the Land crew threaten you with hanging and start menacing court clerks as well?

As Rosalind English noted in a previous post, Canada’s latest Freemen judicial decisions in AVI and MHVB and Jacqueline Robinson (I and II) have had to answer those pointed questions.

Rosalind’s note canvassed the first decision by Justice Robert Graesser of the Alberta Court of Queen’s Bench calling out the actions of Jacqueline Robinson who had inserted herself into a high-conflict child custody case with disastrous results for the mother she was ‘helping’.  Robinson’s efforts included invoking Article 61 of the 1215 Magna Carta despite it having been repealed some 800 years previous and a demand for the return of the mother’s “property” (read ‘child’).  With Robinson’s Magna Carta Lawful Rebellion help, the mother went from having shared child access to no access and being removed as a guardian.


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The right to establish identity: donor offspring — David Gollancz

17 December 2020 by

Image: Pixabay

This is the second of two posts by David Gollancz, a barrister at Keating Chambers and donor-conceived adult, about the UK system of birth registration and certification.  The first post concerned the treatment of transgender parents.  This second post deals with the position of the offspring of gamete donation.

In two recent claims by trans parents, JK and TT/McConnell, the court determined that the law requiring trans people to be registered as parents in their native gender interfered with their Article 8 ECHR rights to respect for their private and family life, but that the interference was justified under Article 8(2).  A significant, possibly decisive, reason for the court’s decision was the right of the children concerned to identify their biological ascendants. – described by the judge in JK [109] as “an important element of his or her fundamental identity”. 

This is nothing new.  The ECtHR has repeatedly emphasised that Article 8 includes the right to establish identity and, accordingly, the right to know the identity of one’s biological ascendants (Mikulić [53], Jäggi [37 – 38], Godelli [52]).   The domestic court, in Rose [45] held (on the preliminary issue of whether Article 8 ECHR was engaged) that

Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them.

But where a person is conceived in a UK licensed fertility clinic (a “clinic”) — like Mr McConnell’s son — their birth registration does not record, and their birth certificate does not disclose, the fact that they are donor-conceived, let alone the identity of their donor parent.   Their donor’s identity is recorded by the Human Fertilisation and Embryology Authority (“HFEA”) (s31 Human Fertilisation and Embryology Act 1990).  Since 1 April 2005, under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 (the “disclosure regulations”), a person aged 18 or over can require the HFEA to disclose whether they are donor-conceived and the identity of their donor (if the donor provided the relevant information after 31 March 2005).  But that right is unlikely to be exercised unless someone tells them the truth, or it is obvious because their legal parents are of the same sex. 


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The right to respect for identity: transgender parents — David Gollancz

16 December 2020 by

Freddy McConnell, who was unsuccessful in the courts in his attempt to be registered as the father or parent of his child. Image: The Guardian

This is the first of two posts by David Gollancz, a barrister at Keating Chambers and donor-conceived adult, about the UK system of birth registration and certification.  This first post concerns the treatment of trans parents.  The second post will deal with the position of the offspring of gamete donation.

In two recent applications for judicial review by trans parents, JK, discussed on the UK Human Rights Blog here and TT (McConnell in the Court of Appeal), discussed on the blog here and here, it was held that the current UK rules on birth registration, interpreted in light of ss9 and 12 Gender Recognition Act 2004 (the “GRA”), require a woman (JK) to be or remain registered as her children’s father and a man (McConnell) to be registered as his son’s mother.  The requirement interfered with the Article 8 ECHR rights of the parents.  In an echo of the ECtHR in Goodwin (see in particular [77]) the Court of Appeal said (McConnell [55])

… requiring a trans person to declare in a formal document that their gender is not their current gender but the gender assigned at birth …represents a significant interference with their sense of identity, which is an integral aspect of their right to respect for private life.

The requirement also interfered with the children’s rights.  The registration of parents as “father” and “mother”, when the children in question knew them respectively as a woman and a man, would be at odds with their family relations and might create anxiety and tension.  However children also have a countervailing right, to know the identity of their biological parents. 

The defendant Registrar General (the “RG”) admitted the interference but argued that it was justified in the interests of maintaining an “administratively coherent system” of birth registration and to protect the child’s right to identify its biological father.  Absent an ECtHR judgment directly on point or a common approach among the signatory states, the UK enjoyed a margin of appreciation. The interference was held to be justified.


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The Weekly Round-up: More restrictions and court backlogs

30 November 2020 by

In the news:

On Monday 23rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system. 

Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:

  • Tier 1 (Medium Risk):
    • The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
    • Pubs and restaurants must shut at 11pm
    • Limited numbers of spectators may be permitted at sports and music events
  • Tier 2 (High Risk):
    • People from different households may not meet indoors
    • The ‘Rule of Six’ will apply for outdoor gatherings
    • Pubs and restaurants must shut at 11pm
    • Alcohol can be served only alongside a substantial meal
  • Tier 3 (Very High Risk):
    • People from different households may not mix indoors or outdoors in hospitality venues or private gardens
    • People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
    • Pubs and restaurants must close except for takeaway and delivery services
    • Travelling into and out of the area is discouraged

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Use of force by police: what is the standard for determining misconduct?

28 October 2020 by

Jermaine Baker was shot dead in December 2015. Image: The Guardian

The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct [2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.

The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.

In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.


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Free School Meals and Governmental Responsibility — Dr Kirsteen Shields

22 October 2020 by

Marcus Rashford has campaigned prominently on this issue. Image: Wikipedia

This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.

Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).

This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.

In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).

When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)

It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.


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Redress for ‘historical’ child abuse in care: what can Scotland learn from Ireland? — Dr Maeve O’Rourke

21 October 2020 by

The Scottish Parliament is considering a Bill for redress for survivors of child abuse in care. Image: Wikipedia

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently undergoing parliamentary scrutiny.

How survivors experienced Ireland’s institutional abuse ‘redress’ schemes (the Residential Institutions Redress Board (RIRB) and the Magdalen Restorative Justice Ex-Gratia Scheme) over the past two decades can tell us a great deal about the elements of good practice in the Scottish Bill and the areas requiring amendment.

The Scottish Bill improves greatly on some problems that have beset Irish redress schemes by proposing a non-adversarial approach, provision of legal and other assistance throughout a survivor’s engagement with the scheme, freedom of expression for survivors, and a prohibition on the review body reducing the payment proposed at first instance.

However, the Bill’s shortcomings include the waiver requirement, the five-year time limit for applications, the anticipated obligation on survivors to provide documentary evidence ‘in all but exceptional cases’, and the exclusion of corporal punishment from the scheme’s scope. My recent correspondence to the Scottish Parliament’s Education and Skills Committee discusses all of these issues.

Here, I focus on the waiver. This requires that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000.

Scotland has the opportunity to use this redress scheme to support survivors who wish to pursue litigation against the State and/or other entities, by contributing to these individuals’ psychological and financial security in the short term. Instead of the current waiver proposal, the Bill could direct the courts to reduce any future damages award by the amount already paid by the relevant Defendant under the scheme. This approach would recognise the absolute and inalienable human right of survivors of torture or other cruel, inhuman or degrading treatment to accountability for such abuse, and to compensation commensurate with the gravity of the harm suffered. Such recognition would strengthen current and future protections against torture and ill-treatment while redressing past failings.


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The UK Internal Market Bill and the Mother of all Ouster Clauses – Ronan Cormacain

15 October 2020 by

The United Kingdom Internal Market Bill is due for second reading in the House of Lords on 19 October 2020.  It is not an understatement to say that the Bill contains provisions which represent one of the most egregious assaults on the Rule of Law in recent times, nor is it an understatement to say that there is a remarkable hostility to it from across the political spectrum, and across the Brexit divide..  It has also united the UK’s legal profession against it.   In Reports for the Bingham Centre for the Rule of Law here and here we pointed out how this violation of international law breaches the Rule of Law.  I have also previously argued that the Bill contains an unacceptable breach of domestic law.  The former Attorney General Dominic Grieve argued that the Bill contained an unacceptable ouster clause.  I wish now to hone that argument by characterising what is now clause 47 of the Bill as containing not just a simple ouster clause, but the mother of all ouster clauses.

Brief explanation / history of ouster clauses

An ouster clause is a provision in primary legislation which ousts the jurisdiction of the courts.  It deems that provision (or decisions made under or in accordance with that provision) as not susceptible to judicial challenge. An ouster clause makes the subject matter of the clause non-justiciable, putting it outside or beyond the reach of the courts.

Parliament and the courts have played a game of cat and mouse over ouster clauses for at least the last 70 years.


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Folk Heroes, Villains and the Overseas Operations Bill — Conall Mallory

12 October 2020 by

UK troops leaving Afghanistan. Image: Flickr

The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.

This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here  and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.


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