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Police officers direct traffic in the wake of new legislation
In the News
In the past week, Covid-19 has once again dominated the news, effectively occluding all other topics. Given that Monday evening saw leaders including Emmanuel Macron, Michel Barnier, Donald Trump and Sir Keir Starmer expressing their hopes for Boris Johnson’s swift recovery after his sudden removal to intensive care, this dominance does not seem disproportionate.
Among legal commentators, the focus has been on the Coronavirus Bill 2020. The regulations, to which the United Kingdom became subject on 26 March, are the most severe restrictions ever imposed on liberty in this country, going far beyond the wartime measures in the Defence of the Realm Act 1914 and the Emergency Powers (Defence) Act 1939. But most accept that they are also vital to the global fight against the virus.
Perhaps the most prominent figure among those who do not appear to accept the measures as necessary is former Supreme Court judge Lord Sumption, who warned a week ago, before the legislation came into force, that the UK was in danger of becoming a “police state.”
Since his statement, the first Covid-19 convictions have begun to come through the courts. A man who coughed on a police officer, threatened to bite him, and claimed to have the virus was convicted of assaulting an emergency worker and jailed for six months. A man who boasted on social media of visiting a hospital without a medical reason was jailed for 12 weeks after he pleaded guilty to causing a public nuisance and admitted breaking the emergency restrictions. Perhaps most significantly, British Transport Police admitted to incorrectly charging a woman under the Act; the woman was detained for two days and fined £660. Meanwhile, a solicitor representing a 17-year-old arrested for gathering with five others attacked the “ridiculous” decision to bring multiple defendants into court in custody, thereby exposing a substantial number of other people to the risk of contracting the virus.
Other lawyers have since echoed Sumption’s warning, including the head of serious and general crime at Hickman & Rose solicitors.
In contrast, Professor Jeff King has published a two-part article on the UK Constitutional Law Association (“the UKCLA”) blog entitled “The Lockdown is Lawful,” in which he asserts that he is satisfied that the lockdown legislation is fundamentally compatible with human rights principles.
Shortly afterwards, lawyer and journalist David Allen Green claimed the same blog had refused his offer to write a response criticising the regulations, and stated UKCLA were “not showing the true breadth of the current constitutional concerns.” However, he also said he was satisfied, for the time being, that the required debate was taking place on other blogs and sites. In particular, Tom Hickman QC, Emma Dixon and Rachel Jones argued on the Blackstone blog that a “plausible” defence of the legal basis for the regulations could be mounted before a sympathetic court, but suggested respects in which they could be “tightened, reinforced and improved to enhance legal certainty and civil liberty.” In addition, Robert Craig’s response to Professor King on this blog went further still, concluding that “the legal underpinnings of the provisions are so thin it is difficult to see how their vires can remain unquestioned.”
A few months ago, it was already a stock observation that the political upheavals of the past few years would make their way into constitutional law textbooks. As a new debate begins, it seems the books have more amendments in store.
In Other News
Among the important items of news which have been overshadowed by the virus recently is the publication of the long-awaited “Windrush: Lessons Learned Report” published on 19 March. It is available in full here. Among other findings and recommendations, the report called on the government to provide an unqualified apology to those affected, found that misconceptions and ignorance on race contributed to the scandal, suggested some Windrush victims remain vulnerable to homelessness and unemployment due to Home Office policies, and stated the Home Office’s ‘target-dominated’ work environment fostered defensiveness and a lack of empathy.
In addition, the Post Office has used the outbreak to justify delaying the launch of a scheme to independently assess applications from current and former postmasters who believe they experienced shortfalls related to previous versions of its computer system Horizon. A spokesperson said that the Post Office’s “immediate focus is to prioritise support for our postmasters through the current coronavirus health crisis.” Postmasters were prosecuted and imprisoned after the Horizon accounting system allegedly showed their branches to be in deficit. Others were fired, lost their homes, suffered ill health, declared bankruptcy, or committed suicide. The scheme was promised after the Post Office paid a landmark £57.75 million settlement late last year after more than 550 claimants brought legal action. The settlement was finally reached after an appeal was rejected by Lord Justice Coulson in a searing judgement, in which he stated that the appeal was based on the premise that the Post Office “was not obliged to treat [postmasters] with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner.”
In the Courts
Whittington Hospital NHS Trust v XX [2020] UKSC 14: by a majority, the Supreme Court dismissed an appeal against the Court of Appeal’s decision to award a claim for the costs of commercial surrogacy and the use of donor eggs, after a series of negligent cervical smears and biopsies failed to detect the claimant’s cervical cancer before it was too far advanced for her to retain the ability to bear her own child. This was in spite of the fact that commercial surrogacy arrangements are banned in the UK under s2(1) of the Surrogacy Arrangements Act 1985. Lord Carnwarth dissented on the basis that it would go against the broad principle of legal coherence for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. A full summary can be found here.
Barclays Bank plc v Various Claimants [2020] UKSC 13: the Supreme Court unanimously allowed Barclay’s appeal against the decision that it is vicariously liable for 126 sexual assaults allegedly committed between 1968 and 1984 by the late Dr Gordon Bates, a self-employed medical practitioner whose work included conducting medical assessments of prospective Barclays employees. The Court held that, since Dr Bates was an independent contractor and not a Barclays employee, it cannot be held liable for his wrongdoing. A full summary can be found here.
WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12: the Supreme Court unanimously allowed an appeal against a decision that the appellant was vicariously liable for a disgruntled employee’s deliberate decision to upload payroll data for the appellant’s entire workforce to a publicly accessible filesharing website, in breach of the Data Protection Act 1998. The Court held that, since the employee was not engaged in furthering his employer’s business, but was rather pursuing a personal vendetta, the “close connection” test was not satisfied, and so the employer was not liable.
The Secretary of State for the Home Department v FTH, R. (On the Application of) (Rev 1) [2020] EWCA Civ 494: the Court of Appeal allowed an appeal against the Upper Tribunal decision that the “expeditated process” employed by the Secretary of State, in her attempt to deal with children in the Calais refugee camp who refused to make asylum applications in France and claimed to have close relatives in the UK, had breached article 8. The Secretary of State had breached her common law obligations of procedural fairness due to deficiencies in the expedited process, but not article 8. The Court restricted the tribunal’s declaration to reflect this decision, and quashed an order for the Secretary of State to pay damages, since damages were dependent on a finding that she had been in breach of article 8.
On the UKHRB
Guest contributor Robert Craig analyses some of the restrictions on movement of individuals announced by the government, arguing that they raise serious constitutional concerns.
Gideon Barth asks what the issues at inquests into deaths in custody from Covid-19 are likely to be.
Robert Kellar QC provides an overview and assessment of the recent decision of the Supreme Court in Barclays Bank v Various Claimants [2020] UKSC 13.
William Edis QC assesses the Supreme Court’s decision to hold a defendant hospital liable for the costs of a commercial surrogacy arrangement in Whittington Hospital NHS Trust v XX [2020] UKSC 14.
Dominic Ruck Keene offers an assessment of R (DN – Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, in which the Supreme Court held the Claimant was entitled to pursue a claim for unlawful detention.
In the first post of a two-part series, Darragh Coffey explores why the Coronavirus Act 2020 was considered necessary, and outline some general aspects of the Act.
Rosalind English summarises the decision of the Supreme Court in WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12, concerning vicarious liability in relation to breaches of the Data Protection Act 1998.
Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
Caroline Flack appearing at Highbury Corner Magistrates’ Court
The intersection between technology and human rights is growing exponentially. In places, the growth is immensely productive. The internet has become integral to how we communicate in moments of historic crisis and transformation. Social networks have played a complex and contradictory role in pivotal episodes from the Arab Spring to #MeToo. For more than three billion people, the internet directly facilitates access to news and information, religion and politics, markets and trade, and even justice. In this country, half the population gets their news from social media. In 2016, a report from the Human Rights Council of the United Nations General Assembly declared access to the internet to be a basic human right. This blog post is itself both byproduct and contributor to the phenomenon.
Civil liberties groups have responded with opprobrium to the Metropolitan Police’s plan to begin using live facial recognition (LFR) cameras on London’s streets as of next month. Purportedly, the Met’s technology compares the structure of faces to those recorded in a database of suspects, and alerts officers on the scene if a match is found. If no alert is generated, the image is deleted. The Met has claimed that the system is 70% effective at spotting wanted suspects and only produced a false identification in one in a thousand cases. In addition, it claimed 80% of people surveyed backed the move.
A year of disruption, disappointment, contention and uncertainty is finally drawing to a close. On 19 December, with Christmas around the corner, the country got a hint of what 2020 might bring. The Queen’s Speech, in which the new Conservative government laid out its legislative priorities for the year to come, included more than 30 bills the government hopes to turn into law.
The debate about the proper role of judges in our democracy has taken on the shape of the political landscape in which we find ourselves: pitched between two distant poles. Lord Sumption’s Reith lectures put forward the thesis that the courts have been getting more powerful while politics has been getting less powerful; he criticises this perceived shift, holding that while ‘law has its own competing claim to legitimacy … it is no substitute for politics’. Lady Hale’s recent response rejected ‘the suggestion that judicial processes are not also democratic processes,’ proffering instead the view that the courts have been, and must go on, ‘doing their job — the job which Parliament has given them or which the common law has expected of them for centuries’. Brexit, the polarising problem which has been pushing judges into the public eye recently, seems also to have pushed them into expressing starkly opposite points of view.
Given the vast, intricate, all-consuming issue that gave rise to the debate, it is interesting that both Lord Sumption and Lady Hale begin by centring their arguments on an acutely intimate issue. Lord Sumption singles out the case of Charlie Gard as an example of ‘law’s expanding empire’. He argues that the High Court’s intervention into the baby’s treatment illustrates an increasing tendency of the law to limit individual autonomy, even in cases where the exercise of that autonomy does no harm to others, and there is no consensus as to its morality. After making it clear that she will not be addressing the Supreme Court’s recent decision on the prorogation of Parliament, Lady Hale tackles this argument at once. Citing the decision of the High Court in the case of Tafida Raqeeb earlier this month, she argues that far from judicial over-reach, these cases simply illustrate the courts doing their job well: ‘resolving disputes according to clear legal standards in the light of all the available evidence’. The distinction between the cases of Charlie Gard, Alfie Evans and Isaiah Haastrup, in which doctors were allowed to withdraw life support, and Tafida’s case, in which her parents were permitted to transfer the child to Italy for treatment, was that the evidence as to her prognosis, awareness and pain level was less clear cut. Mr Justice MacDonald acknowledged that the decision as to her medical best interests was made on ‘a fine balance’.
Gina Miller outside the Supreme Court earlier today (Credit: The Telegraph)
The verdict is in. The Supreme Court has unanimously held that Boris Johnson’s advice to the Queen to prorogue Parliament until October 14 was ‘unlawful, void and of no effect’, since it had the effect of frustrating Parliament. As such, the prorogation was itself void.
The full judgment and the summary judgment are available and can be downloaded from the Supreme Court website. Lady Hale’s summary judgement is also widely available to watch in full.
Protesters outside the Marie Stopes clinic in Ealing have been told they must stay 100m from the building
In the News
Rumours of a coming parliamentary coup to avoid a no-deal outcome rumble on, prompting the usual range of responses.
Speaking at the G7 summit in Biarritz on Sunday, Boris Johnson stated that Britain can ‘easily cope’ with a no-deal Brexit. The Prime Minister ascribed sole responsibility for whether or not Britain crashed out of the European Union on 31 October to ‘our EU friends and partners’, while Brussels officials asserted that it was ‘squarely and firmly’ up to Britain to find a solution to the Irish border issue. His comments come after a week in which Angela Merkel and Emmanuel Macron indicated their unwillingness to countenance reopening the withdrawal agreement, while Donald Trump promised a ‘very big trade deal’ between the United Kingdom and the United States once the country had freed itself from the ‘anchor’ of the EU.
Writing in the Times, Cambridge historian Robert Tombs argues that those who consider parliamentary resistance a legitimate expression of its sovereignty would ‘do untold damage to the institution they claim to defend’ by preventing the government from ‘[carrying] out a policy approved by the electorate’. In the Guardian, Heather Stewart and Rowena Mason covered the opposing view, outlining the key points in the six-page document prepared for Jeremy Corbyn by the shadow attorney general, Shami Chakrabarti. The advice includes an assertion that Boris Johnson would be committing the ‘gravest abuse of power and attack on UK constitutional principle in living memory’ if he shuts down parliament to help force through a no-deal Brexit.
Earlier this week, the archbishop of Canterbury sparked criticism by Brexiteers, including former Conservative party leader Iain Duncan Smith, for reportedly meeting MPs with a view to chairing citizens’ assemblies to stop a no-deal departure from the EU. Today, Jeremy Corbyn met with the leaders of the SNP, the Liberal Democrats, Plaid Cymru, the Green party and the Independent Group for Change and issued a joint statement agreeing to work together to avoid ‘a disastrous no-deal exit’.
US President Donald Trump and Supreme Leader of North Korea Kim Jong-un
In the News
A number of reports and warnings on working conditions for junior judges, the criminal justice system’s treatment of victims of sexual violence, and prison sentencing for individuals with mental health issues have been published this week.
The Criminal Bar Association has warned that junior judges are being put on what are in effect zero-hours contracts, as their working days have been slashed and requests are being made for them to sit at the bench at impossibly short notice. The Guardian’s legal affair correspondent Owen Bowcott attributes the worsening working conditions to ‘a fresh round of austerity’, noting that the Ministry of Justice has suffered deeper cuts than any other Whitehall department since 2010. Conversely, the MoJ insists that the reason for the change is that the number of cases going to court has fallen and therefore fewer recorders are required. Caroline Goodwin QC, vice-chair of the Criminal Bar Association, said: ‘Exactly how recorders are to fulfil their sitting obligations and maintain any real career progression simply beggars belief.’
Baroness Newlove, the outgoing victim’s commissioner for England and Wales, has warned in her annual report that there has been a ‘breakdown in confidence between victims of sexual violence and the criminal justice system’. She cited recent data that suggests fewer than 2% of victims of sexual assault will see their perpetrator convicted in the courts. Arguing that the criminal justice system had become a ‘hostile environment’ for victims, Newlove called for them to be offered free legal advice before consenting to handing over their phones or personal records, expressed concern over defence barristers cross-examining victims on their previous sexual history, and echoed Sir John Gillen’s call for a ‘large-scale publicity campaign and training for juries’ to counteract rape myths and stereotyping.
In the Guardian, Fern Champion, a survivor of sexual violence who is campaigning to ensure access to specialist counselling services, observed that rape crisis centres and services are being forced to turn thousands of women away because high demand and long-term underfunding have resulted in waiting lists as long as 14 months. She expressed concern that the Tory leadership candidates Boris Johnson and Jeremy Hunt demonstrate ‘clear inability to understand’ the extent and severity of the crisis. In the same paper, Emily Reynolds called for a duty to be imposed on employers to prevent sexual harassment in the workplace.
Ten years since the publication of the landmark Bradley Report, a new report by the Centre for Mental Health has recommended further change to ensure that people who suffer from mental ill-health and addictions are not sent to prison when alternatives are more effective. The report finds too many people are sentenced to short prison sentences without any pre-sentence report on their needs, and recommends that Liaison and Diversion services should be resourced to enable effective screening of all those who come into police custody or attend voluntarily.
In Other News
China, North Korea and Hong Kong have been in the headlines this week for a number of diplomatic developments which engage human rights issues.
At the G20, President Trump and Xi Jinping agreed to restart trade talks, with the US president saying he would not impose threatened tariffs on Chinese goods, and indicating his readiness to lift a ban on American companies selling components to Huawei. Writing in the Times, Philip Sherwell observed that the American president ‘seemed most at ease among authoritarians’ and deflected questions about human rights abuses in Russia and Saudi Arabia.
An impromptu early morning tweet at the G20 led to President Trump becoming the first United States leader to enter North Korea, during a hastily arranged meeting with Kim Jong-un at the border with South Korea. The two men then crossed the border to greet the South Korean president, Moon Jae-in. Four months after the failure of Trump and Kim’s last summit in Vietnam, the three leaders talked for just under an hour before announcing that teams of North Korean and US diplomats will resume negotiations on denuclearisation. Kim stated that the meeting indicates an intention to ‘bring an end to the unpleasant past and build a new future’, while Trump said it would ‘start a process and we will see what happens’, and Moon characterised it as ‘a significant milestone in the peace process on the Korean peninsula’.
Responses have been mixed. Professor Robert Kelly of South Korea’s Pusan National University derided the meeting as a ‘photo op for the 2020 election’ driven by Trump’s ‘lust for optics and drama rather than substance’. Taking a similar tone, Victor Cha, a former American negotiator with North Korea, said ‘theatrics are no substitute for denuclearisation’. In contrast, Pope Francis praised the meeting as a ‘good example of the culture of encounter’.
In the Times, Richard Lloyd Parry observed that the ‘gaping divide’ between the ideology of the two sides could render ‘Mr Trump’s hop across the border’ meaningless: ’Kim does not want western style capitalism, because of the danger that it would unlock unrest in his cowed and isolated population’. As with Trump and Kim’s February summit, there was no discussion of North Korea’s woeful record of ‘systemic, widespread and grave human rights violations’, in the words of a 2014 UN Report into conditions in the country.
In Hong Kong, around two million people marched to demand the resignation of leader Carrie Lam a day after she pulled back from a bitterly unpopular proposed law that would allow extradition to China. Lam’s apologises and offers to ‘postpone’ the measure did little to settle public outcry against the bill, which could allow China to exert more influence in Hong Kong to silence critics, undermine civic discourse, and erode the independence of the judiciary.
In the Courts
In Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099, the Court of Appeal unanimously rejected an appeal against a Divisional Court ruling that the Agudas Israel Housing Association’s arrangements for the allocation of social housing, which are currently allocated only to members of the Orthodox Jewish community, were lawful. In his judgement, Lord Justice Lewison pointed with approval to Hackney’s evidence that ‘AIHA’s allocation arrangements are valuable for the purpose of alleviating high levels of child poverty in the Orthodox Jewish community’.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 Mr Justice Hayden identified a number of principles determining whether permission should be granted in applications for the appointment of personal welfare deputies. The three young people on whose behalf the applications were a non-verbal 24-year-old man with autism, epilepsy and severe learning difficulties; a 24-year-old woman with Down’s Syndrome and a learning disability; and a 20-year-old man with severe autism, requiring constant supervision. In his judgement, Mr Justice Hayden emphasised that the ‘defining principle’ of the Mental Capacity Act 2005 was the ‘recognition of the importance of human autonomy’ in the presumption set out at Section 1(2) that ‘a person person must be assumed to have capacity unless it is established that he lacks capacity’.
In three applications brought against Serbia and the Ukraine, the European Court of Human Rights declared that the applications were admissible and disclosed a breach of Articles 6 and 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to the excessive length of administrative proceedings: Case of Milosavljević v Serbia [2019] ECHR 496; Case of Yeryomina and Others v Ukraine [2019] ECHR 507; Case of Tseboyev and Others v Russia [2019] ECHR 505.
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 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.
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.
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 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”.
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