Media By: Alethea Redfern

The Round Up: Amnesty for Ireland and Another Anisminic

20 May 2019 by Alethea Redfern

By a narrow 4-3 majority, the Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review, despite a powerfully-drawn ‘ouster clause’ which sought to prevent the decisions of the Investigatory Powers Tribunal from being questioned by a court. 

Lord Carnwarth, who delivered the majority judgement, noted the ‘obvious parallel’ with the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Turning to the ouster clause in the present case, he considered that ‘a more explicit formulation’ might have ousted the jurisdiction of the High Court to consider a challenge to a decision by the IPT, but that, such as it was, the clause was not sufficiently clear to do so.

Lord Carnwarth also stated that: ‘It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.’ Although it was not necessary to decide on the general lawfulness of ouster clauses, he saw ‘a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.’ Lord Lloyd-Jones, another of the Judges in the majority, remained neutral on this statement. 

Lord Carnwarth’s ‘rule of law’ argument was echoed by Caroline Wilson Palow, Privacy International’s general counsel, and Simon Creighton, of Bhatt Murphy Solicitors, which acted for Privacy International. Megan Goulding, a lawyer at Liberty, which supported Privacy International, stated that the ouster clause was ‘not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.’

In contrast, Professor Richard Ekins, a Tutorial Fellow in constitutional law at Oxford University, has stated that the ruling ‘violated the sovereignty of parliament.’ Ekins credited the three dissenting judges for their willingness to ‘[give] effect to parliament’s authoritative choice’ to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services.  

In the News

• The foreign secretary, Jeremy Hunt, has appointed Rita French, formerly his principal private secretary, to a post as the UK’s first human rights ambassador. Hunt put the appointment implicitly in the context of Brexit, stating that ‘as the UK enters a new chapter in its history’ he will ensure human rights are not forgotten in the rush to secure desperately needed free trade deals. Shami Chakrabarti, shadow attorney general, made her skepticism clear: ‘Rita French’s task will be an uphill struggle in a party that has consistently campaigned to scrap human rights instruments and cosied up to every despot in the pursuit of trade.’
• The appointment came shortly after Human Rights Watch published a 115-page report condemning the UK government for breaching its duty to protect citizens from hunger by pursuing ‘cruel and harmful policies’ with little regard for children living in poverty. While a government spokesperson dismissed the findings, school staff and food bank volunteers confirmed that the report tallied with their experiences. 
• On Wednesday, the defence secretary, Penny Mordaunt, announced ‘a statutory presumption against prosecution’ for alleged offences committed in the course of duty more than ten years ago, covering wars in Iraq and Afghanistan. Following the announcement, Mordaunt went further, stating that she would like to see the proposed exemption extended to period of the Troubles in Ireland. Mordaunt’s comments were quickly met with criticism from human rights groups, a string of Conservative MPs, Ireland’s deputy prime minister Simon Coveney, and Sinn Féinn’s deputy leader Michelle O’Neill. An editorial in The Independent argued that the move would set human rights back by decades, allowing ‘the UK [to] opt in and out of the ECHR, depending on whether it is at war,’ while Amnesty UK’s campaign manager for Northern Ireland argues that the move undermines victims’ ‘fundamental rights to justice.’

In Other News

• Ukraine responded angrily after ministers of the Council of Europe voted overwhelmingly in favour of allowing Russia to ‘participate on an equal basis’ in the council’s committee of ministers and parliamentary assembly, five years after the country was stripped of its voting rights over the seizure of Crimea. Ukraine’s envoy to the Council stated that the decision was not ‘diplomacy’ but rather ‘a surrender’.
• US President Donald Trump has outlined his ‘strongly pro-life’ views on abortion days after Alabama passed a law banning abortion in almost all cases. In a series of tweets, Mr Trump stated that he was against abortion except in cases of rape, incest or ‘protecting the life of the mother’. While Republicans eager to overturn the 1973 Roe v Wade ruling welcome the ban and Trump’s approbation of it, Democratic presidential candidate Elizabeth Warren characterised the prohibition as ‘dangerous and exceptionally cruel’, and Human Rights Watch described the legislation as ‘a shocking abdication of responsibility by Alabama law makers’. 
• In the Washington Times, Neil Bush called for the release of  Marsha Lazareva, a prominent Russian businesswoman imprisoned in Kuwait since May 2018 after being found guilty of embezzling 17 million dinars from the Kuwaiti Port Authority. Her latest hearing has been delayed until 9 June, after the judge recused himself unexpectedly. The manner in which Lazareva was tried and sentenced has been criticised by a number of human rights groups and diplomatic figures, including the former US Representative Ed Royce. Louis Freeh, a former judge and Director of the FBI, expressed concern for Lazareva’s health and wellbeing, and called the refusal of the Kuwaiti authorities to release her on a $33 million cash bail something he had ‘never heard of’ in his years as a judge and advocate. Lord Carlile of Berriew QC, senior counsel for Lazareva, has said that the ‘expert auditor’ on whose testimony much of the evidence relied has since been charged with the forgery of the three documents on which he depended during the case. 

In the Courts

• R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21: The Supreme Court considered whether the revised benefit cap, introduced by the Welfare Reform and Work Act 2016, s8, to lone parents with children under two years old (i) unlawfully discriminates against parents and/or their children, contrary to ECHR Articles 14 and 8 and the UN Convention on the Rights of the Child Article 3, and/or (ii) is irrelevant. The court concluded, by a majority of 5-2, that the rule engaged ECHR Article 8, but could be justified because it was not manifestly without reasonable foundation. Lady Hale and Lord Kerr, dissenting, considered that a fair balance had not been struck. 
• Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818: The Court of Appeal dismissed an appeal for wrongful dismissal by a nursing sister employed by the Trust. The sister was a ‘committed Christian’ fired for breaching an undertaking not to have inappropriate religious discussion with patients. One of the patients who lodged a complain was told by Mrs Kuteh that if he prayed to God he would have a better chance of surviving a major surgery for bowel cancer which he was about to undergo. ‘Even having regard to the importance of the right to freedom of religion,’ the court concluded that the Employment Tribunal’s decision was ‘plainly correct’, and the Trust’s decision to dismiss Ms Kuteh for misconduct ‘fell within the reasonable band of responses’ in this case.

On the UKHRB

• Dominic Ruck Keene summarises and discusses R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire v The Chief Coroner for England Wales [2019] EWCA Civ 809, in which the Court of Appeal conclusively held that the standard for proof for conclusions concerned suicide was the civil balance of probabilities, rather than the criminal beyond reasonable doubt test. 
• Jonathan Metzer assesses the Supreme Court’s ruling in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the Investigatory Powers Tribunal’s decisions are amenable to judicial review, despite the existence of a powerfully-drawn ‘ouster clause’.
• Episode 78 of Law Pod UK explores the implications of the EU Directive on Copyright in the Digital Single Market for the music industry. 

The Round Up: WikiLeaks and a White Paper on Online Harms

15 April 2019 by Alethea Redfern

In the News 

• On Monday last week, the government published its long-awaited white paper on online harms. The paper states that the the government will establish a new statutory duty of care on these companies to ‘take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services’. A new regulator will have formidable powers and sanctions at its disposal to oversee and enforce the fulfilment of this duty. 
• The document was praised by John Naughton in the Guardian as a global first: the first time the government of a major country has attempted to regulate social media companies. He celebrates the paper’s ‘flexible and, at least to some extent, future-proof’ approach as a savvy first step on the road to online regulation. 
• Conversely, writing in The Times, Greg Hurst criticised the paper for ducking key questions and deferring decision on controversial decisions, characterising it as ‘an important tactical victory’ for social media platforms eager to evade tighter control. In particular, he noted the paper’s insistence that the regulator’s focus should be on ‘on protecting users from harm, not judging what is true or not’, a distinction he called ‘at best hard to maintain and, at worst, unsustainable.’
• Commentators across the political spectrum noted that the paper’s implications for free speech were a source of tension and alarm. The paper identifies disinformation or ‘fake news’ as one of many online harms, and says that social media platforms will be expected to use fact-checking services and take action against disseminators of misinformation. The Spectator’s Toby Young states that the proposals pose ‘an unprecedented threat to free speech and could easily be used to impose a censorious code of conduct on newspapers and magazines’; in The Guardian, Alex Hern warned that the measures might prove ‘dangerous’ by ‘creating a regulator without the power to prevent the worst abuse, but with just enough power to scare away the best innovations.’
• The intersection of online activity with freedom of expression was also brought into focus by the expulsion of WikiLeaks founder Julian Assange from the Ecuadorean embassy on Thursday. Mr Assange faces charges of sexual assault and criminal theft of US state secrets, and the possibility of a US prison sentence, after Ecuador revoked his asylum and allowed officers from Scotland Yard to remove him from the premises. 
• A leading article in the Sunday Times argued that Mr Assange’s fate should be left to the courts. Elsewhere, however, Ed Pilkington focused on the indictment’s ‘potentially devastating effect on the basic acts of journalism’. The attitude of many commentators and advocacy groups can be summed up in these words, from a statement by the Freedom of the Press Foundation: ‘Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested.’

In Other News

• On Thursday, Omar al-Bashir, the military officer who took power in Sudan in 1989, was overthrown. Mr Bashir is the subject of an international arrest warrant issued by the International Criminal Court (ICC), which accuses him of organising war crimes and crimes against humanity in Sudan’s western Darfur region. While the Sudanese people have celebrated the toppling of a regime that has overseen decades of brutal repression and a desperate economic crisis, it remains unclear whether the generals behind the military coup intend to hand power over to civilian rule. 
• In a decision described as a ‘devastating blow for victims’, the ICC has rejected a request to investigate war crimes and crimes against humanity in Afghanistan, citing a lack of cooperation from the US, Afghan authorities and the Taliban. 

In the Courts

• Miller and Others v The United Kingdom [2019] ECHR 285 (11 April 2019): The applicants complained that under Article 3 of Protocol No. 1 to the Convention that as convicted  prisoners in detention they had been subject to a blanket ban on voting in elections. The ECHR unanimously declared the applications admissible, and held that the finding of a violation alone was sufficient satisfaction for the applicants. 
• Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20: The Supreme Court heard a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who allege their health and farming activities have been damaged by toxic emissions from the Nchanga Copper Mine into the waterways upon which they rely for drinking water and crop irrigation. The United Nations has recognised access to clean drinking water as an essential human right; this case also engages Article 6 (the right to a fair trial), Article 1 (the right to the peaceful enjoyment of one’s own property) and potentially Article 2 (the right to life). The court found that England was not the ‘proper place’ for the proceedings. However, since there was a real risk that substantial justice would not be obtainable in a more appropriate foreign jurisdiction, namely Zambia, this finding was academic. 
• Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661: The Court of Appeal heard two separate appeals brought by the Secretary of State against decisions of the Upper Tribunal, which found that the public interest did not require the removal of either Respondent, on the ground of Article 8 (the right to respect for family life). The court found that AB, a father who saw his son three times a week to assist with homework, had a ‘genuine and subsisting relationship’. AO, a father who was only permitted ‘indirect contact’ with his son, did not. The Secretary of State’s appeal was dismissed in the case of AB and allowed in the case of AO. 

On the UKHRB:

• Jeremy Hyam QC encourages the GMC and the medical profession to reflect as Dr Bawa Garba, a paediatrician convicted of gross negligence manslaughter in November 2015, returns to work. 
• Charlotte Gilmartin summarises and discusses the Court of Appeal’s judgement in Boyd  Anor v Ineos Upstream Ltd & Ors [2019] EWCA Civ 515, in which it considered whether a ‘persons unknown’ injunction would have a ‘chilling effect’.

The Round-Up: Christchurch, Islamophobia, Home Office Failures and Modern Slavery

25 March 2019 by Alethea Redfern

A white supremacist murdered 50 worshippers and injured 50 more in two consecutive terrorist attacks at mosques in Christchurch, New Zealand during Friday Prayer on 15 March 2019.  The victims’ ages ranged from 3 to 77. Immediately prior to the attacks, the perpetrator emailed a 73-page manifesto to more than 30 recipients, including several media outlets and the office of Prime Minister Jacinda Arden. It expressed anti-immigrant hate speech, white supremacist rhetoric, and an unequivocal statement that the motive behind the attacks was to accelerate anti-Muslim and anti-migrant sentiment across majority white nations. 

The Round-Up: Right or Wrong to Die and Rent?

4 March 2019 by Alethea Redfern

In the News 

Opinion has been divided this week after a landmark High Court ruling on Friday declared that the government’s right to rent scheme is breaching human rights laws and actively creating racial discrimination in the housing market. 

The scheme requires landlords in England check the immigration status of tenants, with fines of up to £3,000 and a potential prison term if they fail to do so. Introduced by sections 20-37 of the Immigration Act 2014, right to rent is a cornerstone of the government’s hostile environment policy, which aims to reduce the number of illegal immigrants in the UK. The High Court said that it would be illegal to roll the scheme out out in Scotland, Wales and Northern Ireland without further evaluation. Mr Justice Spencer noted that the scheme had ‘little or no effect’ on immigration control, and that independent evidence ‘strongly showed’ the scheme was ‘indirectly’ discriminatory, causing landlords to turn down potential tenants because of their nationality or ethnicity. 

The Round-up: Domestic Violence Consultation and some Strasbourg cases

28 January 2019 by Alethea Redfern

In the News 

The Home Office has published a domestic violence consultation response and draft bill  as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech. 

The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services. 

Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.