The Round Up – locking up leakers for longer

whistleblowingInformation leaks have led to some slippery situations for some in recent weeks. Not even David Beckham escaped unscathed, when his disappointment at being overlooked for a knighthood was revealed in a series of expletive-ridden emails by Football Leaks earlier this month, and saw him vilified by the British public for his attitude to charity, tax and Katherine Jenkins.

Donald Trump too found himself insisting at a press conference, and – as ever – on his trusty twitter account, that his former US national security adviser had been a victim of criminal and illegal leaks. Michael Flynn was forced to resign after allegations emerged that he had conducted meetings over diplomatic issues with the Russian ambassador before holding office at the White House, even though it is illegal for private citizens to engage in US diplomacy. These revelations have only increased concerns over the US’ relationship with Russia.

Back in the UK, the issue of intelligence leaks has been a hot topic this month since the Law Commission unveiled its latest consultation paper which seeks to reform the Official Secrets Act. The paper was conducted in an effort to modernise UK legislation, with the Official Secrets Act harking back to 1911. Many have argued that it is in dire need of reform in the technology age of the 21st century, and there has been particular pressure for this to occur since the disclosures by Edward Snowden.

What is the Law Commission proposing? 

The consultation paper has suggested a number of reforms. A fairly sensible suggestion appears to be the removal of anachronistic code words and terms such as “enemy”, which they claim might inhibit potential prosecution. What has elicited far more attention however, are the proposed reforms regarding offences falling under this Act. For example, the Law Commission has criticised the low sentence term of 2 years for unauthorised disclosure of information, comparing it to other jurisdictions such as Canada where the maximum sentence is 14 years. It has also suggested redrafting the offence of espionage so that someone who is not only capable of committing this offence for communicating information, but even for gathering or obtaining it.

What’s the problem?

There has been a virulent reaction to what has been seen as an attempt to gag freedom of speech. There are concerns that there would be wider scope for investigative journalists to be prosecuted for what they publish or even obtain, and that the imposition of larger sentences would be far too harsh and inhibit whistleblowers, whom many consider provide an essential service in ensuring transparency from the government.

The Law Commission has emphasised that they are not intent on gagging those with real concerns. It has previously been suggested that there should exist a statutory public interest defence for whistleblowers – advocates of this include the former GCHQ whistleblower Katherine Gun. The Law Commission however, has concluded that the problems with introducing such a defence outweigh the benefits; rather, it has suggested alternative ways to address such concerns, such as a statutory commissioner who could receive and investigate complaints.

But wasn’t this researched? 

There have also been suggestions that the Law Commission has been misleading in its claims that it conducted wide research. No actual whistleblowers appear to have been approached, nor does there seem to have been much discussion with media groups. Liberty and the Guardian have rejected the Law Commission’s assertions that they were properly consulted in the production of this paper: Liberty claimed that it had not understood any meeting to have been a consultation, while the Guardian has stated that any interactions were informal and brief.

What happens now? 

The open public consultation will run till the 3rd April. You can access the consultation papers here, and you can contribute with your responses by emailing pod@lawcommission.gsi.gov.uk.

IN THE COURTS: 

R (on the application of Hicks and others) v Commissioner of Police for the Metropolis: in a test case four appellants claimed that they had been unlawfully detained by the police, but the Supreme Court unanimously dismissed the appeal and held that there was no violation of their right to liberty under Article 5 of the ECHR. The appellants were among a number of claimants who had been arrested by the police on the day of the Royal Wedding between the Duke and Duchess of Cambridge in April 2011. While some had dressed up as zombies in order to protest at the cuts affecting LGBTQ communities, others had planned to attend “Not the Royal Wedding” street parties. The police claimed to be concerned that they posed a threat to the peace, and the Court held that the police were justified in doing so, for while Article 5 must protect individuals from arbitrary detention, this must not make it impracticable for the police to perform their duties and protect the general public. The Court chose to follow the minority view in the ECtHR case Ostendorf v Germany that detention can be lawful when it is for preventive purposes and is followed by early release.

Great Ormond Street Hospital for Children Foundation NHS Trust v NO & KK & Ors: A High Court judge has ruled that doctors could switch off the life-support machine of a baby despite her parents’ continued objections. The eight-month-old baby, MK, was diagnosed with hypo-plastic left-heart syndrome before she was born; her heart has not developed properly and doctors have predicted she has weeks left to live. Russell J emphasised that, while in principle it was the responsibility of parents to make decisions on behalf of their child (which included agreeing for some treatment to be withheld), it was ultimately a question of what was in the baby’s best interests. It was held that it was not in MK’s best interests to carry out the intervention and invasive treatments which her parents sought as this would only prolong her suffering, but it was also noted that any decision in such a case would always be wholly fact-dependent.

IN THE NEWS: 

A UN report has ben released detailing the growing violence directed at the Rohingya population in the northwest Rakhine State of Myanmar. Animosity continues to be directed towards the Roghingya Muslims in this deprived area, whom the Rakhine view as Bengali “immigrants.” The report has been produced from interviews with 204 victims of the violence, who have since fled to Bangladesh, where there are now estimated to be approximately 66,000 refugees. Almost half of those interviewed claimed that a member of their family had been killed or was missing, while over half of the 101 women interviewed stated that they had been subject to rape or sexual violence. Such treatment of the Rohingya has reportedly been carried out under the guise of “area clearance operations” by the Myanmar security services, and the Myanmar Government maintain that these accusations are no more than mere “propaganda.” The UN report however, has condemned the violations against the Rohingya as possible crimes against humanity. The UN’s High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, has urged the Myanmar Government to “halt these grave human rights violations against its own people” and called upon the international community to intervene.

Turkey has defied a court order from the UN and failed to release a judge who was detained after the coup attempt last year. Judge Aydin Sefa Akay, one of thousands of officials who have been detained since last summer, is a judge for the United Nations Mechanism for International Criminal Tribunals. He is currently meant to be reviewing the case of former Rwandan minister Augustin Ngirabatware, who was convicted for his involvement in the Rwandan Genocide. According to the UN’s Mechanism for International Criminal Tribunals, Judge Akay should be protected by diplomatic immunity, and it had ordered Turkey should “cease all legal proceedings against Judge Aydin Sefa Akay and… take all necessary steps to ensure his release from detention, no later than 14 February 2017.” Turkey, however, has ignored this court order, which potentially leaves it in breach of Security Council Resolution 1966 (2010); Ngirabatware’s lawyer, Peter Robinson, has since threatened to report it the UN Security Council. The situation jeopardises the status of an international independent judiciary, and highlights wider concerns about human rights abuses in Turkey.

Romance was certainly dead for one couple this Valentine’s Day: Tini Owens was battling to end her divorce in the Court of Appeal, while her husband Hugh Owens maintained that the marriage had not irretrievably broken down and that they still had a “few years” left to enjoy. Mrs Owens, who claims she is “desperately unhappy,” is seeking to overturn Judge Toulson’s decision from last year and divorce her husband of 39 years. Yet, as Sir James Munby, the most senior family judge in the UK, observed in this case, “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.” Indeed, many lawyers have called for reform of divorce legislation: the Supreme Court’s Lady Hale has advocated the introduction of “no-fault” divorce, as has top divorce lawyer Ayesha Vardag, who has hailed the current system a “barbaric relic of former times.”

Lord Neuberger yesterday appeared on BBC Radio 4’s Today Programme where he addressed the reaction from the press over the Article 50 Brexit case. While the President of the Supreme Court admitted that the press were lawful in their coverage, he nevertheless condemned it as unfair to the judiciary and warned that it risked undermining the rule of law. He furthermore commented that the Government and its ministers had clearly learnt from their mistakes in being too slow to do so in defence of the High Court judges, since they had responded suitably and swiftly to defend the Supreme Court in the aftermath of the appeal. On the other hand, today Michael Gove has warned against the judiciary becoming too assertive, which he claims risks generating controversy that in turn will undermine the rule of law.

The Supreme Court is currently looking not only for new justices, but even a new President. Lord Neuberger, Lord Toulson and Lord Clarke’s retirements this year have created the possibility of up to four new judges by the end of the year. The need to diversify the Court was also highlighted in the Today Programme, as it is currently comprised of all white justices and can boast only one woman. Apply here now!

The Round-Up: this week in human rights legal news

child-refugees

THE DUBS AMENDMENT

The big news this week is that the UK government will only accept another 150 unaccompanied refugee children under the Dubs Amendment.

What’s the Dubs Amendment?

Alfred Dubs, who himself came to the UK via Kindertransport, introduced an amendment to the Immigration Act 2016. The amendment, which became Section 67 of the Act, mandated that a number of unaccompanied child refugees in Europe would be allowed to come to the UK. The number was left unspecified, until this week.

Since the law was passed in May, it has brought around 900 children to the UK, many from the camp (the ‘Jungle’) in Calais. Many of these came over when French authorities ransacked the Jungle in October 2016.

(FYI, the Dubs Amendment is not to be confused with the Dublin rules, an EU Regulation governing how asylum claims are handled and shared between EU countries. Amber Rudd herself has on occasion gotten it wrong. For news this week on the Dublin Regulations and time limitations, see here).

What just happened?

Now Amber Rudd has announced (in a written statement the day before Parliamentary recess) that the number of children brought by the Dubs Amendment will not exceed 350. That includes 200 already transferred, and only children who were in Europe before the Immigration Act was passed in May 2016 are eligible (at least under this provision – the Syria Vulnerable Persons Resettlement Scheme and the Vulnerable Children’s Resettlement Scheme are still in operation).

What now?

Well, the charity Help Refugees had already launched an application for Judicial Review for the government’s failure to properly implement the Dubs Amendment, back in 2016. The claim (brought by three barristers from Doughty Street, instructed by Leigh Day) asserts that the government failed to properly consult with local authorities as required by statute (as per Section 67.2 of the 2016 Act), and therefore both unlawfully and incorrectly calculated the number of children to bring. The case characterises the government’s figure as woefully low, and the claim won a pretty significant victory in December 2016: the court found that the Dubs Amendment was an additional obligation that the government did not meet by acting in accordance with EU law, specifically Dublin III above.

The next hearing for this case is actually today, in the High Court. This in an interesting one to watch in light of these recent developments, so watch this space!

TRANSGENDER PARENTING

The Family Court in Manchester has denied a transgender parent access to her five Orthodox Jewish children. J, a transgender woman, left her wife and the Charedi Jewish community in 2015 and has been fighting a legal battle for access to her children since.

In family law, the welfare of the children is the paramount consideration: any decision regarding parental access must be made with that in mind. A parent’s presence in a child’s life is presumed to be beneficial unless the contrary is shown.

Mr Justice Peter Jackson, in his judgment, had the unenviable task of balancing J’s rights on the one hand, to see her children and to be free from discriminatory treatment as a transgender women, and the potential harm to the children. The judge, who said that “it is not for the court to judge the way of life of the ultra‐Orthodox Jew or of the transgender person,” found “with real regret” that the overriding concern was the risk, amounting to a probability, that the children and their mother would be rejected by their Orthodox community if they continued to have a relationship with J.

(J v B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4)

MARRIAGE LAWS

Two separate judgments this week have been a win for unmarried couples.

The ECHR found that to exclude children born out of wedlock from their inheritance rights is discriminatory. German legislation previously provided that children born out of wedlock before 1st July 1949 were precluded from the right to inherit, and the ECHR followed the direction of movement in both national and EU-wide case law to find that this was unlawful. (Mitzinger v. Germany, Application no. 29762/10 ECHR)

Closer to home, the Supreme Court found in favour of a Northern Irish woman, Denise Brewster, who applied for Judicial Review after she was denied her deceased partner’s pension. Unmarried cohabitees in Northern Ireland were required to nominate their partners with a designation form, whereas married couples would benefit from automatic entitlement. Because Ms Brewster’s partner didn’t fill out the nomination form before his sudden death, she was not entitled to his pension. The five sitting justices in the Supreme Court found unanimously that the requirement for an opt-in form should be removed. This judgment is predicted to have wide implications for the rights of cohabiting couples in other areas.

RIGHTS OF DISABLED PEOPLE

Various charities for disabled individuals have published reports finding that the UK government is violating the UN Convention on the Rights of Persons with Disabilities. These will be submitted to the UN Committee on the Rights of Persons with Disabilities, which announced in 2015 that it would conduct an inquiry into the UK government’s treatment of disabled people.

The UK has the (very) dubious honour of being the first: no other government has yet been investigated under this Convention. The Optional Protocol mandates the UN Committee to investigate where they have reliable evidence of ‘grave and systemic violations’ of the Convention, but this had not yet been used since the Convention was adopted in 2008.

The UN released a damning report in October 2016, finding that the UK government has systemically violated the rights of disabled people and making eleven policy recommendations. It delves into policies going back to 2010, including vicious cuts to welfare and social security benefits. Westminster’s response is expected later this year.

 

IN THE NEWS:

  • Trump’s executive order mandating a travel ban on citizens from seven countries has been found unlawful in multiple US appeals courts. With lawsuits currently moving through 11 out of the 13 US appeal court circuits, it’s easy to anticipate that the controversial order will provide grounds for litigation for months and perhaps years to come. The likelihood that the US Supreme Court will rule on the ban is growing, as Trump’s administration shows willing to defend the policy throughout the courts, and meanwhile the American Civil Liberties Union is moving towards international legal action, and applying for an emergency hearing before the Inter-American Commission on Human Rights.
  • The Bar Council and the Citizenship Foundation are creating lessons for secondary school pupils on constitutional law to explain the role of the judiciary in democracy. The move was prompted by the backlash against the judiciary after the Miller ruling about triggering Article 50, in particular the personal attacks against the three High Court judges. (BBC).
  • MP Liz Saville Roberts has tabled a Sexual Offences (Amendments) Bill 2017, which is attracting significant cross-party support. The Bill would tighten up existing laws on the use of sexual history evidence in rape cases, including questions in cross-examination. (Guardian)

IN THE COURTS THIS WEEK:

  • The High Court is hearing an application for Judicial Review on the government’s decision to continue selling arms to Saudi Arabia, despite warnings from senior civil servants that they might be used to kill Yemeni civilians. (Guardian)

 

EVENTS:

  • If you missed 1 Crown Office Row’s event in collaboration with Leigh Day, “Brexit and Fundamental Rights”, you can find the podcast here. Chaired by Joshua Rozenberg QC, no less, it’s well worth a listen!

More vaccine litigation

swine_flu_vaccine313John (A Minor: Vaccine Damage Payments scheme), Re [2017] EWCA Civ – read judgment

As commentators to my previous post on immunisation have pointed out, vaccinations are not cost-free. But the benefit of eliminating pathogens through herd immunity is generally agreed to outweigh the occasional risk to individuals. Acknowledging that there are such risks,  the government has run a modern compensation system since 1979 for people who are “severely disabled” as a result of vaccination (now the 2012 Vaccine Damage Payments Scheme). The initial scheme was put in place in response to side effects of the whooping cough vaccine.

The question before the Court of Appeal in the present case was whether the determination of the severity of a person’s disablement could take account of prognosis. If an individual has been assessed as having a lifelong condition, is the state obliged to compensate them for future disabilities?

Yes, said the Court of Appeal: this is not speculation, our legal system is used to it. It is the “very stuff” of personal injury litigation.

Continue reading

Time limits for the return of asylum seekers – did the clock stop ticking?

Time limits for the return of asylum seekers – did the clock stop ticking?

Analogue-clock-007Mucaj, Re Judicial Review, [2017] CSOH 17 – read judgment.

Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.

The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.

As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland, [2015] CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.

Continue reading

Should courts order vaccination against parents’ wishes?

Vaccine in vial with syringe. Vaccination concept. 3d

Vaccine in vial with syringe. Vaccination concept. 3d

SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017) [2017] EWHC 125 (Fam)

The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.

Background facts

The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine. Continue reading

Fathers4 (Access2) Justice: Administrative Court ruling on the public’s right to attend court hearings and the Court Service’s limited powers of control – Chris Adamson

fathers4justice-pic

R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin)

Summary

On 20 February 2015 Matthew O’Connor, the Claimant in this judicial review and the founder of the campaign group Fathers4Justice, was due to go on trial at Aldershot Magistrates’ Court for a public order offence. He arrived at court with around ten of his supporters, but when they tried to gain entry to the court building they were prevented from doing so by HMCTS staff. Only the Claimant and his Mackenzie Friend were allowed to enter.

Continue reading

Brexit and Fundamental Rights – Podcast Available

1 Crown Office Row recently collaborated with Leigh Day for a special event entitled:

‘Brexit and Fundamental Rights’

The discussion was chaired by Joshua Rozenberg QC.

Speaking from 1COR were Adam Wagner, Jeremy Hyam QC, Dominic Ruck Keene and Hannah Noyce.

Nigel Mackay, employment specialist at Leigh Day, also joined the panel and Sean Humber, partner and head of human rights, introduced the event.

You can download the podcast here.