By: Guest Contributor

Myanmar’s Compliance with the ICJ Provisional Measures Order & the Road Ahead

3 September 2020 by Guest Contributor

In this article, Prachiti Venkatraman and Ashley Jordana of Global Rights Compliance analyse the case before the International Court of Justice relating to the persecution of the Rohingya people by the Myanmar authorities.

Readers are encouraged to read the previous articles about this topic published on the blog here and here.

To read more about Global Rights Compliance’s work with the Rohingya, please see: https://www.globalrightscompliance.com/en/projects/the-rohingya-accountability-project.

The perilous situation of the Rohingya in Myanmar continues – the recent UN policy brief on Covid-19 in South-East Asia highlighted the compounded effects of the nation’s weak healthcare system and an ongoing armed conflict that targets ethnic communities.

On 11 November 2019, The Gambia filed an Application to commence proceedings against Myanmar before the International Court of Justice (‘the Court’). The Application alleged that Myanmar had violated its obligations under the Genocide Convention by committing acts intended to destroy in whole or in part the Rohingya community, as well as attempting and conspiring to commit genocide, inciting genocide, being complicit in its commission, and failing to prevent and punish genocide. To demonstrate the validity of these allegations, The Gambia relied on the actions of the Burmese military (‘the Tatmadaw’) and individuals connected to the State of Myanmar during the ‘clearance operations’ in 2016 and 2017 which led to the mass murder, sexual violence, and destruction of Rohingya villages in Rakhine state.

BAME representation at the bar

5 August 2020 by Guest Contributor

After the killing of George Floyd in Minneapolis in May, we published on this blog a short statement and an in-depth article by Michael Paulin examining systemic racism in the legal system.

The UK Human Rights Blog is committed to continuing to raise awareness of the vital issues that were brought to public attention in May and June. In this piece, we look at diversity at the bar, with particular focus on the commercial bar.

This article is largely an edited version of a piece which appeared in The Lawyer online in April this year and may be found here. We are very grateful to The Lawyer and to Harry Matovu QC for their kind permission to reproduce that content here.

Although a record number of black and Asian minority ethnic (BAME) barristers were awarded silk status this year (a total of 22), there is still a large diversity gap in the industry. BAME barristers accounting for just under 8 per cent of the QC population overall, according to the latest figures from the Bar Standards Board (BSB). Within the commercial bar, the representation of BAME barristers is particularly low, with only 8 per cent of barristers at a range of leading commercial sets being BAME.

The umbrella term of BAME also requires nuance. According to the BSB, of the 3,364 BAME barristers in this country, 1,497 are Asian or mixed, while 479 barristers are black. The difference is even greater at silk level; just 20 of the 149 BAME silks are black.

In a nutshell, therefore, BAME barristers as a whole are underrepresented, and under that umbrella, the representation of black barristers and silks is particularly low.

Barclays Bank plc v Various Claimants: further blurring boundaries in employment status? – by Anna Williams

28 July 2020 by Guest Contributor

This article was first published here on the UK Labour Law Blog on 6^th July 2020 and is reproduced with the author and editors’ kind permission.

Introduction

In a judgment handed down on 1 April 2020, the Supreme Court reversed the decisions of Nicola Davies J (as she then was) and a unanimous Court of Appeal, allowing the appeal on the ground that no vicarious liability can lie for the acts of an independent contractor: Barclays Bank plc v Various Claimants (‘Barclays’). This was one of a pair of decisions, each concerned with a limb of the vicarious liability test: the requisite relationship (Barclays) and the necessary connection between that relationship and the wrongdoing (WM Morrisons Supermarkets plc v Various Claimants (‘Morrisons’)). While much could be said, to use the language of recent case-law, about whether this latest development means that vicarious liability is still ‘on the move’ (Various Claimants v Child Catholic Welfare Society (‘Christian Brothers’)), has ‘come to a stop’ (Cox v Ministry of Justice (‘Cox’)), or has even been thrown into reverse, this post will instead focus on the judgment’s implications for the test(s) for employment or worker status across various contexts. Although Barclays may bring a certain kind of clarity, or at least predictability, to future vicarious liability cases, it nonetheless blurs boundaries in several areas of law. Three of these will be addressed below.

Upcoming Human Rights Lawyers Association Event

28 July 2020 by Guest Contributor

Race and Rights in the UK: Do Black Lives Matter Today?

The recent killing of George Floyd at the hands of US authorities has sparked a global outcry, with individuals and organisations demanding accountability and an end to the racial oppression that black Americans face. Within the United Kingdom, a much-needed debate is also taking root in response to these events, which focuses on systemic racism that denies people their basic rights here. From discriminatory policing, to the racism inherent in the Windrush and Grenfell scandals as well as the disparate racial impacts of COVID-19, evidence of systemic racial injustice within the UK abounds.

Drawing on the knowledge and experience of our panellists, this event hosted by the Human Rights Lawyers Association (HRLA) tomorrow, will provide a forum to discuss some of these issues and recommend solutions in order to advance this debate at this critical juncture. Presentations will touch on the following four key areas as part of this discussion and will be followed by a live Q&A:

– Discriminatory policing
– Grenfell
– Windrush
– Race and Covid-19

Panellists:

Laurie-Anne Power, 25 Bedford Row (Chair)
Judge Peter Herbert OBE, Co-Founder BMELawyers4Grenfell, Chair of the Black Lawyers’ Society
Dr Nishi Chaturvedi, Professor of Clinical Epidemiology at University College London
Martin Forde QC, One Crown Office Row, Independent Adviser to the Windrush Compensation Scheme
Zainab Asunramu, Activist and Writer
Rohan Samuel, @poet_rs Spoken Word Poet

Event lead and Introduction: Tetevi Davi, HRLA Executive Committee

Registration details here.

You might also be interested to hear Martin Forde QC discuss systemic racial inequality on episode 117 of our podcast Law Pod UK or read Michael Paulin‘s look at Racism and the Rule of Law on the UK Human Rights Blog.

Surrogacy and human rights — Anna Dannreuther

26 June 2020 by Guest Contributor

In Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39 the Family Court read down section 54 of the Human Fertilisation and Embryology Act 2008 to enable a parental order to be granted where an intending parent died shortly before the child’s birth. This ensured the child’s Article 8 and 14 rights were protected, and prevented much emotional hardship for this family.

The case has already been cited in Re A (Surrogacy: s.54 Criteria) M [2020] EWHC 1426 (Fam) as comprehensively setting out when a court may ‘read down’ the statutory criteria in section 54.

Parental orders – an introduction

Section 54 of the Human Fertilisation and Embryology Act 2008 enables two people to apply for a parental order over a child who has been born as the result of a surrogacy arrangement. A parental order transfers legal parenthood from the legal parents at the time of the child’s birth (usually the surrogate and – if applicable – her husband or civil partner) to the intended parents.

Parental orders are recognised as having a “transformative effect on the legal relationship between the child and the [intended parents]. The effect of the order is that the child is treated as though born to the applicants. It has a clear implication as regards the right to respect for family life under Article 8.” A v P [2011] EWHC 1738 (Family), per Munby J [24].

Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic — Paul Bowen QC

4 May 2020 by Guest Contributor

This article first appeared on the UK Constitutional Law Association blog — the original can be found here.

As we watch the Covid-19 pandemic unfold our attention is naturally on the steps that HM Government (‘HMG’) is taking to mitigate the immediate crisis.  The time is approaching, however, when it will be necessary to evaluate HMG’s preparation for, and response to, the pandemic.  Calls are being made by the TUC and doctors’ groups for a public inquiry into one aspect of its response, namely failures to procure adequate personal protective equipment (‘PPE’) for NHS staff, at least 100 of whom are believed to have died having contracted the virus while treating patients.  HMG is accused of failing to respond to a national exercise in 2016 testing the UK’s resilience to a similar flu pandemic which highlighted an increased need for ventilators.  Other criticisms go further.  This blog argues that the state owes a duty under Article 2 of the European Convention on Human Rights to investigate some deaths caused by Covid-19.  This duty will require not only inquests into individual deaths but also a public inquiry under the Inquiries Act 2005 to address those systemic issues not suitable for determination by an inquest.  The post builds on and responds to posts by Conall Mallory, James Rowbottom and Elizabeth Stubbins Banes.  It also foreshadows the need for reform in this area.

Making Sense of the Amended Lockdown Law

1 May 2020 by Guest Contributor

As has been widely reported, not least on this blog, the ‘lockdown’ imposed by the UK Government to tackle the continuing pandemic is governed in the main by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) (the Original Regulations).

What has been less widely publicised is that the Original Regulations were recently amended by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447) (the Amending Regulations). These came into force at 11am on Wednesday 22 April 2020. 

As this could otherwise get confusing, I’m going to call the Regulations that are currently in force, i.e. the Original Regulations as amended by the Amending Regulations, the Current Regulations.

The Amending Regulations enact a number of changes to the lockdown law, some more consequential than others. This post does not go through the more insignificant changes in any great detail; for example, Amending Reg (4)(b)(iv) correcting the name of DWP in Original Reg 6(i)(iii) from “Department of Work and Pensions” to “Department for Work and Pensions”. 

What this post does instead is outline four of the changes provided for by the Amending Regulations in ascending order of importance.

The Coronavirus lockdown does not breach human rights (Part One) — Leo Davidson

30 April 2020 by Guest Contributor

Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.

In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.

In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.

Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.

These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough.  As a matter of human rights law, however, they are lawful.  The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.

Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful.  The analysis is wrong, primarily because:

1. It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
2. In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
3. The margin is particularly wide given the complex scientific evidence underlying the decision.

I address these three point in turn, below.

A disproportionate interference: the Coronavirus Regulations and the ECHR — Francis Hoar

21 April 2020 by Guest Contributor

This is a summary of an article published here and inevitably simplifies the detailed arguments and considerations within it.  The article represents the views of the author alone.

Note: This article involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.

The ‘lockdown’ imposed by the government to contain the coronavirus and Covid 19, the disease it causes has been enforced mainly through the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’), imposed under powers delegated by the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’).

Recently Lord Anderson QC, Robert Craig, Tom Hickman QC and others and Benet Brandreth QC and Lord Sandhurst QC have argued that the Regulations were or may have been ultra vires as secondary legislation beyond the delegated powers under Pt 2A of the 1984 Act.  In turn, Prof Jeff King has argued that the delegated powers were exercised lawfully.  It is the view of the author that the arguments against the vires of the legislation on that ground are more convincing. 

This article argues that the Regulations are also a disproportionate interference with the rights protected by the European Convention on Human Rights (‘the Convention’); and that, were they challenged by judicial review, should be disapplied if necessary to avoid a breach of s 6 of the Human Rights Act 1998.

Derogation in the time of Coronavirus — Nicholas Clapham

15 April 2020 by Guest Contributor

The Council of Europe has issued guidance to member states contemplating derogation from the European Convention of Human Rights during the coronavirus pandemic: Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States (SG/Inf(2020)11).

Derogation under the Convention is governed by Article 15 which states:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

A “public emergency threatening the life of the nation” is defined as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (Lawless v Ireland (No 3) App no 332/57 (A/3), [1961] ECHR 2).

Lockdown: A Response to Professor King — Robert Craig

6 April 2020 by Guest Contributor

Essential caveat

This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

In two recent posts for the UK Constitutional Law Association (here and here), Professor Jeff King has set out a focused analysis of key elements of the recent Regulations (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8)) that purport to place severe restrictions on the ability of ordinary citizens to leave the place where they are living.

Prof. King argues that these regulations are within the scope of the powers granted to make such Regulations under the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’) as amended. They were passed under the emergency procedure set out in s 45R which means they were not approved by Parliament due to the urgency of the situation.

In this post I make the contrary argument: that the Regulations go well beyond the powers under Part 2A of that Act.  I support this claim using only traditional vires arguments. It is also of course the case that the legality of these Regulations also falls to be determined by whether they violate the right to liberty under Article 5 ECHR, located in Schedule 2, Human Rights Act 1998. That issue warrants separate consideration, which I do not seek to undertake in this post.

Supreme Court holds hospital liable for commercial surrogacy — William Edis QC

3 April 2020 by Guest Contributor

Whittington Hospital NHS Trust v XX [2020] UKSC 14

The Supreme Court has held that a defendant hospital trust must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.

As a result of admitted negligence the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her amongst many other ghastly consequences of the repeated fault of the Trust.

Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant came from a large family and had always wished to have four children.  Her preference was to enter into a commercial surrogacy arrangement in the USA and she sought the cost of doing so as damages. She sought to use the stored eggs but also to rely on surrogacy with donor eggs fertilised by her husband’s sperm. The defendant argued that it should not have to pay damages to reflect the cost of UK surrogacy, the use of donor eggs and of the American commercial surrogacy.

Injunctions against “Persons unknown” in public protests curtailed – Gareth Rhys

20 March 2020 by Guest Contributor

Canada Goose UK Retail Ltd v Persons unknown and People for the Ethical Treatment of Animals (PETA) [2020] EWCA Civ 303 on appeal from [2019] EWHC 2459 (QB) – Gareth Rhys

All references in square brackets are to paragraphs in the Court of Appeal judgment

The Court of Appeal has articulated the guiding principles that apply when seeking interim and final relief against ‘persons unknown’ in cases of public protests. The decision will be regarded as a win for civil liberties organisations and activist groups given that the Court has greatly restricted the circumstances in which injunctive relief may be sought against unknown protesters. This case has distilled the jurisprudence following the decisions in Cameron v Liverpool Insurance Co Ltd [2019] UKSC 6 and Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515.

Background

Canada Goose is an international company that manufactures and sells clothing containing animal fur and down. They brought a claim in damages and injunctive relief against ‘persons unknown’ who protested the use of animal products outside Canada Goose’s Regent Street shop.

Rights in a time of quarantine – an extended look by Niall Coghlan

17 March 2020 by Guest Contributor

Quarantines and lockdowns are sweeping Europe: Italy, France, Spain. Through them, states seek to contain Covid-19 and so save lives. It is difficult to imagine higher stakes from a human rights perspective: mass interferences with whole populations’ liberties on one side; the very weighty public interest in protecting lives on the other; and all this under the shadow of uncertainty and disorder. What, if anything, do human rights have to say?

To begin sketching an answer to this complex question, this post analyses the situation in the European state furthest down this path: Italy. After outlining the Italian measures (I), it argues that Italy’s mass restrictions on internal movement are unlikely to violate the right to free movement but pose problems in respect of the right to liberty (II). I conclude by summarising the tangle of other rights issues those measures raise and making a tentative reflection on the currently limited role of human rights law (III).

Before beginning, I should note that analysing measures’ human rights compliance in abstracto is difficult and slightly artificial: a great deal turns on how measures are implemented in practice and particular individuals’ circumstances. Moreover, my analysis is limited to the European Convention on Human Rights (‘ECHR’), and I do not profess expertise in Italian law (which is proving complex to interpret). The aim of this post is therefore to start, not end, debate about human rights’ role as these measures begin to spread across Europe.

Lack of gender neutral option on passport forms: no breach of human rights –

12 March 2020 by Guest Contributor

R (on the application of Christie Elan-Cane) v Secretary of State for the Home Department with Human Rights Watch intervening [2020] EWCA Civ 363 – read judgment

When we apply for a passport, we are generally asked to state on the form whether we are a man or a woman, and this is generally reflected in our passports. However, in our modern day and age, there are now more than two genders – some people can choose to define as gender neutral, essentially meaning that they don’t like to describe themselves using the normal terms of “man” or “woman”. MX Elan-Cane is one of those individuals. They sued the Home Office because there was no “X” (as in, no gender neutral) option on the passport form as it was a breach of their Human Rights. The High Court said that yes, this engaged Article 8 of the Human Rights Convention (the right to private and family life), but the current passport policy did not breach that right. The Court of Appeal agreed with the High Court, both that this engaged Article 8, but that the rights to a private life were not breached here.