Sam Sykes and Conor Monighan provide the latest updates in human rights law
In the news
This week marked the 70th
anniversary of the Community Party’s rule in China. In Hong Kong, there were
violent protests and clashes with the police. The unrest which began in the
wake of the controversial extradition bill introduced 4 months ago has
developed into a wider movement for democracy, and there is no resolution in
sight. The situation has caused damage to buildings and transportation
infrastructure, and serious injuries: this week, an 18-year-old was shot in the
chest – police say that he is now recovering.
Carrie Lam, the Chief Executive of Hong
Kong, invoked the Emergency Powers Ordinance to try and create order. It is the
first time in 50 years that such regulations have been created. The regulations
ban people from wearing face masks, which protesters use to protect themselves
from tear gas, and also to preserve their anonymity. Although many have ignored
the rule, the Hong Kong authorities are now bringing the first charges under
the new law.
As we inch towards October, the £100m
government campaign to ‘Get Ready for Brexit’ has been launched. But to all intents
and purposes, the government are jumping the gun. By the time businesses have managed
to get themselves ready for Brexit (again), Boris Johnson will probably have
been required to request an extension to Article 50 under the anti-no deal bill
proposed by Hillary Benn, which today was given royal assent and passed into
On Friday, Prime Minister Boris Johnson
set down his stance on law and order in three major announcements, fulfilling
his promise to ‘come down hard on crime’. This follows the announcement of
20,000 ‘extra’ police officers a few weeks ago.
Firstly, Home Secretary Priti Patel announced
enhanced stop-and-search powers for police officers under s.60 Criminal Justice
and Public Order Act, on the basis of a ‘knife-crime epidemic’. Under the new rules,
an officer need only believe that a violent incident ‘may occur’, not that it ‘will’,
and a lower level of authorisation will be required to exercise the power.
Secondly and thirdly, Mr Johnson has
promised penal reforms. The Ministry of Justice has allocated
£2.5bn to create ‘modern, efficient prisons’, including 10,000 new prison
places. Alongside this, Mr Johnson has announced a sentencing review, by which
he hopes to increase sentences for violent and sexual offenders, and reduce the
use of ‘early release’ on licence – currently available to most offenders after
they served half of their sentence, under the Criminal Justice Act 2003.
The resources of this crackdown are
welcome, especially with an extra £85m for the chronically underfunded CPS. However,
the approach is controversial. Stop-and-search in particular has been heavily
criticised in the past. Some say that it is ineffective – a study released by
the Home Office in 2016 found that enhanced stop-and-search had not decreased crime
when used in key London boroughs. Others say that the policy is discriminatory
in its application, and worsens the relationship between the public and the
police, drawing links to the 2011 London riots.
The review of the Prevent counter-terrorism initiative is expected to begin today, following the appointment of the independent reviewer. However, the process of appointing the reviewer has been criticised for its opacity – Ed Davey MP has spoken of a ‘whitewash’, while Liberty director Martha Spurrier has suggested that the government are ‘[shielding] Prevent from the scrutiny it desperately needs’.
In further unwelcome news, a report found that
a chartered deportation flight lacked ‘common decency’ towards passengers. Passengers
were subjected to excessive restraint (up to 14 hours at a time); not allowed
appropriate privacy when using the toilet; not appropriately supervised; and
subject to long delays. This was followed by revelations that the Home Office
used restraint against deportees in 447 cases between April 2018 and March
reported by Guardian.
In Hong Kong, protests have continued against
a proposed law allowing extradition of Hong Kong residents to China. On Monday
1 July, campaigners delivered a letter to the UK government, petitioning the
government to change the status of the British National (Overseas) Passport to include
an automatic right to live and work in the UK. The government has yet to
formally respond to the petition. However, Foreign Secretary Jeremy Hunt has
stated that he is ‘keeping his options open’, and threatened ‘serious
consequences’ if China fails to honour the Joint Declaration treaty of 1984 (which
stipulated the terms of the 1997 handover).
In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.
Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.
The Equality and
Human Rights Commission has published a report into legal aid and access to
justice for discrimination cases. Its recommendations include reforming the
telephone service to make reasonable adjustments for disabled users, adjusting
the threshold and financial evidence requirements for financial eligibility, and
addressing the asymmetry in terms of claims for legal representation between
discrimination and other cases. The full report is available here.
The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.
In the courts
Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.
MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.
On the UKHRB
Amelia Walker discusses the investigation into abuse at Brook House.
On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.
Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.
This week, the Home Secretary Sajid Javid launched the Windrush Compensation Scheme. It is estimated that the total compensation will be somewhere in the region of £200m, but critics note that individual payments may be ‘insultingly low’, as with a cap of £1,000 for those who left under a ‘voluntary’ return scheme. The government has published an impact assessment for the scheme.
The media (and certain MPs) have reacted with outrage to a High Court judge’s statement that a man had a ‘fundamental human right’ to have sex with his wife. The remark was made by Hayden J in a Court of Protection case concerning a marriage to a woman with severe learning disabilities. One commentator has suggested that the remark has been interpreted uncharitably, and was simply meant to indicate a cautious approach to governmental interference with private life in such complex and difficult situations, in line with Article 8 of the ECHR.
The Foreign Office has appointed human rights lawyer Amal Clooney as its ‘Special Envoy for Media Freedom’. Meanwhile, human rights criticisms of the UK government itself have come from various angles:
The Northern Ireland Human Rights Commissioner has called on Theresa May to clarify the post-Brexit rights of Northern Ireland-born Irish citizens.
The Scottish Commissioner for Young People and Children has called for UN intervention to address Scottish breaches of children’s human rights, such as by strip-searching and illegal restraint. The Commissioner urges the implementation of the UN Convention on the Rights of the Child into Scots law.
A report by the Commons Foreign Affairs Committee, titled ‘China and the Rules-Based International System’, worries that UK trade policy with China is prioritising economic interests over other vital concerns such as human rights violations.
A report by Citizens UK indicates that the Home Office is making a substantial profit (~£25m/year) from fees to process citizenship applications by the children of migrants who have grown up in the UK.
As Shamima Begum’s lawyers prepare her appeal against the government’s decision on her citizenship, international criticism of the UK’s reluctance to repatriate children of ISIS parents is growing, with repatriations by France and Germany, and pressure from the International Committee of the Red Cross.
Outside the UK:
Brunei’s anti-LGBT law has come into force, despite overwhelming international criticism.
Debate continues about Mark Zuckerberg’s call for a US state regulator of Facebook.
With a third rejection of Theresa May’s deal on Friday, Brexit remains a dismal subject. Dismal not only for its economic but for its human rights implications: this week, the Parliamentary Joint Committee on Human Rights published its report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The report (available here) raises concerns about legal limbo for the 3m EU citizens remaining in the UK post-Brexit. In particular, it makes the following recommendations:
The bill in its present form is a ‘blank cheque’ affording ministers excessive discretion to remove rights. The JCHR recommends an amendment requiring the Secretary of State to ensure that any regulations contain measures to protect the acquired rights of persons who benefited from EU free movement of persons prior to Brexit.
The EU Settlement Scheme is unclear on the implications of failure to register the time limit. The JCHR recommends provisions for registration outside the time limit, and/or otherwise to limit the implications of the time limit.
The EU Settlement Scheme in its present form would issue only electronic proof of a successful application. The JCHR recommends the issuing of physical proof, echoing the EU Justice Committee in a comparison to the Windrush scandal on this point.
Vulnerable people may have difficulty in accessing the EU Settlement Scheme. The JCHR recommends that steps be taken to ensure that vulnerable people are aware of their rights, and have assistance in accessing the scheme.
Finally, the JCHR recommends clarification of the Common Travel Area for Irish citizens.
This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless.
The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”
A cross-party group of MPs is seeking to put an end to indefinite detentionin immigration centres. Led by Harriet Harman MP, the Chair of the Joint Committee on Human Rights, the group are backing an amendment to the Immigration and Social Security Coordination (EU Withdrawal) Bill, which will make it illegal for people to be held for more than 28 days in an immigration detention centre, unless a judge issues a 28-day extension.
The Human Rights group Liberty has published two important reports. The first report highlights the failings of the UK military justice system, including a lack of transparency and a practice of downgrading offences to as to deal with them internally; the report recommends a new independent supervisory body for the Service Police. In connection with the report, Liberty has launched an Armed Forces Human Rights Helpline.
The second Liberty report evaluates the use of ‘predictive mapping’ by the police to identify crime hotspots and to conduct ‘individual risk assessments’. The report concludes that this system threatens privacy and freedom of expression, and encourages discrimination and racial profiling.
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