The head of the Equality and Human Rights Commission, Kishwer Faulkner, is facing an independent investigation into alleged misconduct. It is reported that around 40 complaints have been made by 12 members of staff against Faulkner, alleging harassment, bullying, and discrimination. It is also alleged that Faulkner described Emma Laslet, a trans contestant on ‘Brain of Britain’, as ‘a bloke in lipstick’ – leading to claims of discriminatory language. Her supporters claim that the investigation is a witch-hunt and coup d’etat, motivated by employees critical of Faulkner’s approach to trans rights after she proposed changes to the definition of sex in the Equality Act 2010. These changes would clarify that ‘sex’ means ‘biological sex’ – a move that would clarify the position of trans people in sport, and ensure that only ‘biological women’ can use single-sex spaces. Faulkner also wrote to the Scottish government early in 2022 urging them to pause their proposed reforms to gender recognition (which were ignored). The investigation has since been paused while the Commission seeks legal advice on the impact of leaked confidential information as a result of the original report on this investigation by Channel 4 News.
The Council of Europe has warned the UK that the Illegal Migration Bill risks placing the UK in breach of at least five different international conventions, including the ECHR. The report specifically warns of the potential effects of the Bill on stateless persons, children, and victims of modern slavery – which the UK has positive obligations to protect under Article 4 ECHR. It also highlights the risk of the UK’s current trajectory, which will lead to legal uncertainty, breach of the rule of law, and damage to the UK’s reputation as a model country when it comes to the implementation of human rights. The UK has also been accused of equating migration status with criminality, which may lead to “dehumanising some of the most vulnerable people in society” according to rapporteur Kamal Jafarov. Fears are also growing of the UK’s increased appetite for non-compliance with international law as a result of the government’s own acknowledgement that the Bill may be incompatible with the ECHR. The draft resolution, which is due to be debated by the full Parliamentary Assembly of the CoE, can be found here.
In other CoE news, an expert committee has found that there is “troublingly persistent” discrimination against Gypsy, Roma and Travellers (GRT) in the UK. The report, which echoes sentiments expressed in Smith v Secretary of State for Levelling Up, Housing and Communities  EWCA Civ 1391, found that GRT suffer bullying in the education system, prejudiced reporting in the media, and threats to their legal status and rights. This comes as a result of legal changes, such as the those to the Planning Policy for Traveller Sites, which were held to be indirectly discriminatory in Smith. They also cite a systemic lack of sites for GRT in the UK, and criminalisation of trespass with a vehicle by the Police, Crime, Sentencing and Courts Act 2022. The government is yet to respond to the report at the time of writing.
In other news
The human rights organisation Walk Free has found that there are at least 122,000 people living as modern slaves across the UK, down from 136,000 in 2018, but warned that the increasingly hostile environment regarding migration is denying victims the help and assistance they need. It also estimated that the UK imports £21 billion worth of products at risk of being made using forced labour, with high-risk industries including garments, electronics, fish, textiles and timber. However, the report also found that the UK had the strongest government response to modern slavery, both in the region and globally.
The NGO Iran Human Rights (IHR) has lambasted the “medieval” hanging of a 23-year-old man in public in Iran on 25th May for the crime of “corruption on earth”. Rights groups say that the hanging is part of a recent wave of executions aimed at intimidating the public after protests recently rocked the fundamentalist nation following the death of Mahsa Amini in police custody. 295 people have been executed in Iran this year alone. IHR has called for a robust international response and criticised the election of an Iranian representative as Chair of the UN Human Rights Council’s Social Forum.
The Human Rights Campaign, America’s largest LGBTQ rights group, has issued a travel advisory for the state of Florida following the passage of several hostile new laws. The advisory warns that the new laws and policies “pose a significant risk to the health and safety of many considering relocation and/or temporary travel to the state”. Furthermore, the NAACP, the American civil rights movement founded in the 1960s, has also advised against travelling to Florida, claiming that the state has become hostile to Black Americans. Florida’s governor, Ron DeSantis, has described the advisories as “nothing more than a stunt” and cited record tourism levels in the state earlier this year.
In the courts
In a major judgment delivered on Tuesday (Buhuceanu and Others v Romania), the European Court of Human Rights condemned the government in Bucharest for its failure to guarantee the rights of same-sex couples by providing for civil partnerships. President Klaus Lohannis in response called the topic “a complicated issue for Romania”, which the Parliament has to deal with.
A High Court judge has directed that government work towards identifying a chair for a new investigation into the Omagh bombing must be provided in writing in one week. Government progress on the probe, which they are obliged to undertake under Article 2 ECHR, has been criticised for alleged delays and failures which have unnecessarily protracted the proceedings. The case was brought by the bereaved father of one of the victims of the 1998 attack.
Judges blocking Rwanda flights may no longer be anonymous under an ECHR review prompted by Rishi Sunak after the so-called ‘pyjama injunctions’ blocked the maiden flight to Rwanda in the early hours of the morning in June last year. The move would make the names of the judges who make the orders public, contrary to longstanding practice.
Rishi Sunak is expected to be consulting his ethics adviser over allegations that Suella Braverman mishandled a speeding offence charge. The Home Secretary is alleged to have attempted to arrange a private speed awareness course for an offence committed in the summer of 2022, rather than accept three points on her license and a fine or, alternatively, attending a course as part of a group of offenders. She reportedly consulted civil servants and a political advisor about the special arrangements. Sir Philip Rycroft, a former Permanent Secretary, commented that the actions appeared to be a “real lapse of judgment.” Kier Starmer has called for the Prime Minister to sack his minister if she is found to have breached the Ministerial Code. Braverman lost her position as home secretary under Liz Truss for a breach of the Code involving the transfer of official documents through her private email.
Professor Richard Susskind OBE is the IT adviser to the Lord Chief Justice of England and Wales, author of several books on technology and the law, and has been warning the legal profession about the effects of computing power on the law for decades. He is described by his publisher OUP as “the leading global authority on the future of legal services, based on 40 years of work in the field”
The latest edition of his book Tomorrow’s Lawyers predicts more change in law in the coming two decades than we have seen in the past two centuries.
Listen to Richard in discussion with Rosalind English in Episode 185 of Law Pod UK.
Finally, we at LawPod UK want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance.
On Wednesday, it was announced a committee of MPs will examine the Metropolitan Police’s treatment of protesters at the Coronation of King Charles III on Saturday 6 May. A total of 64 people were arrested on the day of the coronation, 52 of which were made because police feared protesters intended to disrupt proceedings. The Met expressed “regret” over the arrest of six members of the anti-monarchy protest group, Republic, who were detained on suspicion they were equipped for locking on – a new offence introduced by the Public Order Act 2023 which only came into force on the 3 May. The Met’s heavy handedness has been widely criticised, but many commentators have focused attention on weaknesses in the legislation itself, calling it “too wide” and “too rushed”. There are fears police and public confusion over the scope of the Act will negatively affect protester’s rights in the future.
The Business and Trade Secretary, Kemi Badenoch, announced this week the government has tabled an amendment to the Retained EU Law (Revocation and Reform) Bill, which is currently making its way through the House of Lords. The amendment will replace the ‘sunset clause’; a provision which meant all retained EU law which had not been expressly preserved or replaced would be automatically repealed at the end of this year. Instead, the government has compiled a list of 600 pieces of secondary and EU legislation which will be actively revoked at the end of 2023. By replacing the sunsetting process, the government hopes to address commercial uncertainty and confusion around which of the 4,000 affected laws would last into 2024. While many have long-awaited changes to the sunset clause, some Conservative MPs have criticised Badenoch’s amendment as a ‘massive climbdown’ from the purpose of the Bill. Have a listen to the latest episode of Law Pod UK on the subject of “sunsetting”.
It was a busy week in the House of Lords, as members met for the second reading of the Illegal Migration Bill. Having passed through the House of Commons (with a majority of 289 votes to 230), the Bill is now being scrutinised by the Lords. Justin Welby, the Archbishop of Canterbury, spoke during the debate, calling the Bill “morally unacceptable and politically impractical”. The Archbishop said the Bill would not stop illegal migration and would damage both the UK’s reputation and the international systems which protect refugees. Despite his comments, a motion to stop the bill ultimately failed, with members only voting 76 in favour of the motion and 179 against. The Bill will progress, therefore, to the committee stage where members of the Lords will examine it in detail. Meanwhile, the Bibby Stockholm barge which will house approximately 500 single, male migrants arrived in Falmouth this week. PM Rishi Sunak, speaking in response to the Archbishop’s comments in the Lords, said the government was prepared to use as many barges as it takes to curtail “illegal” migration.
In other news
In New York, a civil jury found Donald Trump had sexually abused Elle Magazine columnist E. Jean Carroll in a department store in the 1990s. Mr Trump was cleared of allegations that he had raped Ms Carroll. The jury did, however, find the former President liable for defamation for calling Ms Carroll’s allegations a hoax and accusing her of concocting them to boost sales of her book. Mr Trump has been ordered to pay $5m in damages. The allegations against Mr Trump related to events which took place in 1995 and 1996. Ms Carroll was able to bring a civil case against Trump because of the Adult Survivors Act passed by the state of New York in 2022, which opened a one-year period for victims to bring historic sexual assault claims which would normally have exceeded statute limitations.
Lawyers in Scotland are preparing to boycott a pilot scheme which would see rape trials heard without a jury. The pilot scheme was introduced by the Victims, Witnesses, and Justice Reform (Scotland) Bill and gives Scottish Ministers the power to carry out a pilot of rape trials without a jury, before a single judge or sheriff. First Minister Humza Yousaf has defended the plan, saying there is evidence juries are affected by rape myths and misconceptions. It is hoped the scheme will improve the conviction rates for rape-related crimes. Bar associations across Scotland have, however, widely condemned the idea of juryless rape trials. The Vice-President for the Scottish Solicitors Bar Association expressed concern that removing juries would remove diversity from the Scottish national justice system, and leave it open to the biases of single judges. While the boycotts are expected to be widespread, the Scottish government has said the pilots will go ahead.
On Friday, Portugal passed a law legalising euthanasia for people suffering from incurable diseases. Under the new legislation, people who are terminally ill and in “intolerable suffering” will be able to seek medical assistance to end their lives. The legalisation has divided public opinion in Portugal for some time. The euthanasia bill has been approved four times by the Portugese Parliament in the last three years, but was blocked each time by the conservative President, Marcelo Rebelo de Sousa. This most recent vote overturned the vetoes exercised by de Sousa, who will be required to sign the bill into law within eight days of receiving it.
In the courts
The hearing for the Duke of Sussex’s lawsuit against the Mirror Group Newspapers (MGN) began in the High Court this week. The case centres on whether MGN journalists used unlawful methods (such as phone hacking) to obtain private information about the Duke of Sussex between 1996 and 2011. The claim forms part of a wider group litigation, with other claimants including former Girls Aloud band member Cheryl, presenter Ian Wright and Coronation Street actor Michael Le Vell. So far, Counsel for the Mirror Group has argued there is no concrete evidence of phone hacking and says the claims have been brought too late. Opposing Counsel, meanwhile, has contended unlawful methods were systematic and widespread amongst MGN journalists and were ultimately authorised by senior executives. The trial is expected to last seven weeks and the Duke of Sussex will give evidence in June. This will be the first time a senior member of the royal family has done so since the 19th century.
In Hicks, R (On the Application Of) v Westminster Magistrates’ Court  EWHC 1090, a claim for judicial review was refused. The Court considered whether the judge had made an error in law by convicting the Claimant of contravening reg. 7 of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, which prohibited public gatherings during the pandemic. Firstly, following R (Dolan) v Secretary of State for Health and Social Care  EWCA Civ 1605, the Court found Regulations prohibiting public gatherings were proportionate. Secondly, regarding whether Ms Hicks had a “lawful excuse” for breaching the regulations, the judge’s assessment of the proportionality of the conviction in relation to her conduct had been correct. Finally, the Court refused to address an issue relating to the Claimant’s fine because it did not raise any point of law or jurisdiction and should have been raised through other procedures.
On May the 10th the government announced that a fundamental change to the Retained EU Law Bill. As you will hear from Episode 184, I discuss with Sam Willis of the Public Law Project the so called sunsetting clauses in the bill which would have repealed all EU legislation at the end of the year, with the exception of any EU law that ministers decided to keep. Since this episode was recorded, business Secretary Kimi Badenoch has said that the the government is to publish a list of the retained laws that will be scrapped by the end of 2023. Instead of thousands of unspecified EU laws expiring by the end of the year, a mere 600 out of the 5000 odd pieces of legislation from the EU era will be repealed. So please bear this in mind when listening to our discussion.
Here are the full citations for the cases referred to in the episode:
Walker v Innospec Ltd  UKSC 47,  4 All ER 1004 Horton v Sadler  UKHL 27,  1 AC 307,  (Lord Bingham), cited as continuing to be applicable in Peninsula Securities Ltd v Dunnes Stores Ltd (Bangor) Ltd  UKSC 36,  3 WLR 521,  (Lord Wilson JSC) (both applying Practice Statement (Judicial Precedent)  1 WLR 1234) Lock v British Gas Trading Ltd  EWCA Civ 983,  4 All ER 291
Tunein Inc v Warner Music UK Ltd & Anor  EWCA Civ 441 (26 March 2021)
And here are the following pensions cases that are relevant to this issue:
Case C-17/17 Hampshire v Board of the Pension Protection Fund  ICR 327 Case C-168/18 Pensions-Sicherungs-Verein VVaG v Günther Bauer  2 CMLR 26 And see Hansard for the fourth sitting of the Public Bill Committee on the 22 November 2022, at pages 168-169, for the Minister’s following comments:
“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system, as it is a European Court judgment that does not fully align to the UK private pension protection scheme”
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
Yet again, the Public Order Bill and the Illegal Migration Bill have been back in the papers this week. The latter has made it through the House of Commons by 59 votes, following threatened rebellions from both the right and liberal wings of the Tory party. One of the resulting amendments provides the Home Secretary with the discretion to refuse to comply with interim injunctions from the ECtHR – known as ‘Rule 39 Orders’ (or ‘pyjama injunctions’ by some Tory MPs). In deciding whether to exercise her discretion, the Home Secretary will be entitled to have regard to the timeliness of any orders made by Strasbourg, as well as the ‘transparency’ of such orders. It is, however, unclear what practical effect this will have since the obligation to obey these orders exists at the international level, which domestic legislation cannot change. Once the Bill is debated in the House of Lords, it is expected that several amendments will be tabled in an attempt to temper some of the more draconian measures in the Bil – such as the detention of pregnant women and children – after the Equality and Human Rights Commission said that it is ‘seriously concerned’ about the impact of the Bill on such groups, and the implications for victims of modern slavery. Regarding the Public Order Bill (which is awaiting royal assent), the UN High Commissioner for Human Rights has described the measures introduced by the Bill as ‘wholly unnecessary’, ‘disproportionate’ and inconsistent with our international obligations, and has called on the government to reverse the legislation ‘as soon as feasible’. The government maintains that both Bills are necessary and compliant with international law.
The increasingly violent conflict in Sudan has prompted the UNHRC to call on both the Sudan Armed Forces and the Rapid Support Forces to halt the targeting of civilians and civilian infrastructure. Since the conflict broke out on 15th April just over two weeks ago, over 20,000 people have fled Sudan for Chad, with various states, including the UK and Saudi Arabia, involved in the evacuation effort. Reports have come in of deliberate bombing of residential homes, repeated breaches of ceasefires and at least 400 dead in the capital, Khartoum. However, this figure is likely to be much higher, as the conflict is preventing many from seeking help. It’s also reported that millions are without water and power as a result of the targeting of civilian infrastructure. Human Rights Watch has said that the conflict highlights the need for increased international scrutiny in the region, and MPs in Westminster have called for sanctions on certain Sudanese officials.
In Episode 183 Lucy McCann speaks to Cara Guthrie and Matthew Flinn of 1 Crown Office Row about multi-defendant litigation in the field of clinical negligence. The discussion covers, who to sue, the costs implications of having multiple defendants, contribution proceedings, apportioning liability between defendants, and interim payment applications.
It has been widely reported that the German magazine Die Aktuelle recently ran a front cover with a picture of a smiling Schumacher and the headline promising ‘Michael Schumacher, the first interview’.
The strapline added: “it sounded deceptively real”.
Anyone walking past a news stand would have assumed that this was a genuine interview with the former Formula 1 driver, who has suffered catastrophic brain injury since a skiing accident in 2013. Only buyers of the edition would have learned from the full article inside, that the ‘quotes’ had been produced by AI.
The news agency Reuter reports that “Schumacher’s family maintains strict privacy about the former driver’s condition, with access limited to those closest to him.”
And in a 2021 Netflix documentary his wife Corinna said
“We live together at home. We do therapy. We do everything we can to make Michael better and to make sure he’s comfortable, and to simply make him feel our family, our bond …We’re trying to carry on as a family, the way Michael liked it and still does. And we are getting on with our lives.”
Unsurprisingly, Aktuelle’s profiteering has caused quite a furore and the editor-in-chief of Die Aktuella has since been sacked. The tabloid has also apologised to the family of the Formula One legend.
Of interest to us here is that the family is, or was, proposing to take legal action against the paper. To English lawyers, the puzzle is what would be the basis of their claim. It was not a libel, because the subject suffered no reputational damage. It was not a malicious falsehood, because the author of the piece “fessed” up to the fact that it was a fake. It was not a breach of confidence, because there was no relationship of confidence between Schumacher, his family, and the editors of Die Aktuelle. Apart from an action based on Article 8 of the European Human Rights under the 1998 Human Rights Act, there would in this country be no readily available legal action. They might have been able to rely on Naomi Campbell v MGN Ltd, a House of Lords ruling in 2004 that a newspaper that published photographs of the celebrated model leaving a Narcotics Anonymous had breached her right to privacy under Article 8.
The HL found – by a slim majority – that the photographs were confidential as their publication would have caused substantial offence to a person of ordinary sensibilities in the Claimant’s position. With this ruling, the HL effectively forged a free-standing right to privacy in English law under the (relatively newly introduced) Convention on Human Rights.
But the facts of the Schumacher case are clearly very different. What made it possible for the family to countenance legal action is an aspect of German law that has no mirror image on these shores. It is the concept of a “personality right” which is one of the interests protected under the umbrella of Paragraph § 823 of the German Civil Code. This provision, at first blush, only authorises tort recovery if the plaintiff can show injury to his “life, body, health, freedom, property, or some other (similar) right.” In order to bring cases of defamation or invasion of privacy within the ambit of this code provision, plaintiffs often argued that a person’s interest in his reputation and privacy should be regarded as his “personality right” and should be protected as one of the “other rights” mentioned in § 823.
In April 1961, the defendants’ paper carried a front-page story purporting to be the transcript of an interview with the plaintiff Princess Soraya, former wife of the Shah of Iran. The interview, which appeared to reveal much of plaintiff’s private and very private life, was wholly fictitious, i.e., it was totally and freely invented by its author, a freelance journalist. The defendants published the story without investigating whether the interview had actually taken place. In July, 1961, defendants’ paper carried another story dealing with Princess Soraya, and as a part of that new story the defendants published a brief statement by the Princess to the effect that the alleged April interview had not taken place.
Now this is getting a bit closer to the Schumacher story.
Princess Soraya sought damages for “violation of her personality rights.” The Landgericht (as court of first instance) awarded her D.M. 15,000. The Oberlandesgericht (intermediate appellate court) and the Bundesgerichtshof (court of last resort in civil and criminal matters, abbr. BGH) affirmed, and the defendants brought the case before the Federal Constitutional Court by way of a constitutional complaint.
The post-WWII German constitution, the Basic Law or Grundgesetz, has as its first two provisions the protection of human dignity and the free development of the personality (translation here).
In the Soraya case the BGH, explicitly invoking these constitutional provisions, held that a plaintiff’s “personality right” is one of the “other rights” which are protected by § 823 against intentional or negligent infringement. This was fundamental development in German tort law. In contrast to what had gone before, the German courts were henceforth able to treat injuries to a person’s reputation or privacy as actionable torts. Incidentally, until this case, defamation had been traditionally thought too as a crime rather than a tort in Germany. The German Civil Code contains no specific provisions concerning the subjects which our legal system would label as defamation or invasion of privacy.
So this was a judicial breakthrough that determined the course of privacy/personality actions in German ever since.
Even after this judicial breakthrough, however, a difficult issue remained to be resolved regarding the kind of damages for which recovery could be allowed under German law in cases of injury to the plaintiff’s “personality right.”
In cases that followed the Soraya ruling the BGH generally held that a cause of action for money damages under § 823 should be recognized only if (a) the injury to the plaintiff’s “personality right” is substantial, and (b) the defendant’s act is sufficiently culpable to justify the rendition of a money judgment in a sizeable amount. According to an analysis of the Soraya case, the BGH is inclined to find that both conditions, (a) and (b), are clearly satisfied in a case in which a defendant, by way of large-scale promotion of his own commercial interests, has wantonly violated the plaintiff’s “personality right.”
With admirable prescience and pragmatism, the German Court has pointed out the drastic technological and social changes that have taken place since the enactment of the Civil Code. The development of mass media, hardly predictable in 1900, makes the protection of an individual’s personality right more important and more difficult in our day. Any judge, said the BVG, who takes the value system of the German Basic Law seriously can no longer feel bound by the provision in the Civil Code insofar as that provision denies recovery for non-pecuniary damages even in cases of grave injuries to an individual’s personality right.
The German Constitutional Court (BVG) concluded, in Soraya, that
“occasionally, the law can be found outside the positive legal rules erected by the state; this is law which emanates from the entire constitutional order and which has as its purpose the ‘correction’ of written law. It is for the judge to ‘discover’ this law and through his opinions give it concrete effect. The Constitution does not restrict judges from applying statutes in their literary sense when deciding cases put before them. Such an approach assumes a basic completeness of statutory rules which is not attainable in practice . . . The insight of the judge may bring to light certain values of society . . . which are implicitly accepted by the constitutional order but which have received an insufficient expression in statutory texts. The judge’s decision can help realize such ideas and give effect to such values.”
Courts all over the world have struggled for decades to work out a balance between the right of free speech and the right of privacy. The Schumacher case has put this struggle in sharp focus, because none of the draughtsmen of the constitutional rights or indeed those adjudicating the conflicts before them could have predicted ChatGPT and its proliferating cousins.
Dominic Raab has resigned as deputy prime minister after a bullying inquiry vindicated a number of civil servants’ claims about his behaviour as a minister in the cabinets of Boris Johnson and Theresa May. The report of Andrew Tolley KC held that Raab’s behaviour constituted an “abuse or misuse of power,” citing instances of an intimidating and discouraging attitude towards the civil servants he worked with. Tolley referred to the ruling of the High Court in the 2021 case concerning the behaviour of Priti Patel towards civil servants, in which it was provided that harassment and bullying through intimidating and insulting behaviour were not consistent with the Ministerial Code. In his resignation letter, Raab said that Tolley’s findings were “flawed and set a dangerous precedent for the conduct of good government … it will encourage spurious complaints against ministers.”
The lawsuit between Dominion Voting Systems and Fox News was settled before trial with a $786.5m pay-out. The voting machines company alleged that Fox news presenters knowingly made false claims that it had rigged the 2020 presidential election result for Biden, while the news corporation framed their defence as a protection of free speech. To win at trial, Dominion’s claims faced a high bar: they would have had to prove that Fox’s statements were made in ‘actual malice,’ meaning either the corporation knowingly made the false statements or acted with reckless disregard for their falsity. Documents released to the public revealed the commercial pressures on executives and presenters to appeal to pro-Trump viewers. Commentators suggest Fox owner Rupert Murdoch wanted to avoid cross-examination of himself and his news stars at trial. The news company still faces a similar lawsuit from voting technology company, Smartmatic, which released a statement claiming that “Fox needed a villain. Without any true villain, defendants invented one.”
The NHS faced further strike action this week, with 47,000 junior doctors participating in a four-day walkout. The Health Secretary, Steve Barclay, has said the British Medical Association’s (BMA) demand for a pay restoration to 2008 levels is ‘unreasonable’. Negotiations have stalled over the effective 35% pay rise demand. Meanwhile, on Friday the Royal College of Nursing (RCN) announced a new 48-hour strike set to take place 30 May. The announcement of fresh strikes and continued discontent amongst junior doctors has fuelled speculation about the possibility of synchronised action between the BMA and RCN. While there are currently no plans for coordinated strikes, the BMA has refused to rule out the possibility of a concerted effort between the unions. Relatedly, the strike ballot for consultant doctors has been delayed until the 15 May.
On Saturday, violence erupted in Khartoum, the capital city of Sudan. The country has become increasingly unstable since President Omar al-Bashir was overthrown in 2019 and a coup in 2021 which replaced a fragile military-civilian government with exclusive military rule. This most recent violence is part of a long-standing rivalry between the head of the country’s armed forces, Gen Abdel Fattah al-Burhan, and leader of the Rapid Support Forces (RSF), Gen Mohamad Hamdan Dagalo. The clashes have extended across the country and at least 56 civilians have been killed and a further 595 wounded. The World Food Programme announced three of its employees have been killed in the clashes, causing the organisation to suspend operations in the region.
Jack Teixeira, a 21-year old US airman, has been charged with leaking classified documents in a court in Boston. The leaked US intelligence revealed a detailed picture of the American assessment of the war in Ukraine, as well as Ukrainian strategies and defence capabilities. Many of the documents also contained sensitive information about US allies in the region. Mr Teixeira is a low-ranking member of the Air National Guard. In 2021, he was granted top secret security clearance and given access to other classified US government programmes. Mr Teixeira’s relative juniority and the ease with which he allegedly accessed and photographed sensitive documents has raised concerns over US intelligence practices. Mr Teixeira faces up to 15 years in prison.
In other news
118 people were arrested at the Grand National on Saturday. The arrests were made in connection with demonstrations held at Aintree by the climate and animal rights group, Animal Rising. Protesters blocked the M57 motorway and ran onto the racetrack, delaying the start of the race. Others attempted to climb or glue themselves to fencing around the track. The arrests were made for criminal damage and public nuisance offences.
In China, two prominent human rights lawyers, Xu Zhiyong and Ding Jiaxi, have been sentenced to 14 and 12 years in prison respectively. Both men have been charged with state subversion and were convicted in a closed trial in the province of Shandong. They were arrested almost three years ago and are prominent figures of the New Citizens Movement, an organisation of activists calling for improved civil rights in China.
Saiful Islam, a Bangladeshi national, has been granted leave to remain in the UK after the Home Office incorrectly alleged that he entered the UK illegally and was a convicted sex offender. Alongside their decision, the Home Office issued an apology to Mr Islam and recognised they had made serious errors by mistakenly attributing other people’s convictions to him.
In the Courts
The High Court has granted a judicial review of plans to expand the Ultra Low Emission Zone (ULEZ) across London. The claim was brought by five councils: Bexley, Bromley, Harrow, Hilingdon and Surrey. The councils proposed 5 grounds of review and the High Court ruled there was sufficient evidence on two of the grounds to proceed to trial. The scheme proposed by Sadiq Khan will see the Low Emission Zone expanded to cover the entire of the Greater London area. The hearing to determine the lawfulness of the scheme is expected to take place in July.
Meanwhile, the High Court has refused an application for judicial review of the government’s decision to grant planning permission to a new coal mine at Whitehaven in Cumbria. The action was brought by the South Lakes Action on Climate Change (SLACC) and Friends of the Earth. SLACC argued the government committed ‘legal errors’ when assessing evidence, requiring it to be proved to an unreasonably high standard. The climate groups will contest the High Court’s ruling.
In the case of Uvarkina and Others v. Russia 70089/12 and 40 others, the European Court of Human Rights examined 41 claims brought against the Russian Federation and found there had been a violation of Article 11 (right to freedom of assembly). The applicants claimed the Russian federation had taken disproportionate measures against them as organisers and participants of public assemblies. As the violations took place before 16 September 2022 (when the Russian Federation ceased to be party to the Convention), the Court held it had jurisdiction to examine the applications. It referred to case-law relating to freedom of assembly and proportionality of interference and concluded that the government’s interventions were not ‘necessary in a democratic society’. Other applications brought under Article 6 (right to a fair trial) were deemed inadmissible. The Russian Federation must now pay the applicants compensation relating to their successful claims.
On the five year anniversary of the Windrush scandal, the Black Equity Organisation announced that they are seeking judicial review over Suella Braverman for breach of the government’s Equality Act 2010 obligations. This challenges her decision to disregard key reform recommendations that were made as part of Wendy Williams’ Windrush Lessons Learned Review, 2020 which the Home Office had originally promised to implement. Over 50,000 people had signed a petition urging Suella Braverman to re-think her decision to drop key recommendations of the review, but as it stands, her decision is not to hold reconciliation events or to review and extend the powers of the independent chief inspector of borders and immigration. Whether this will be held “unlawful” under the Equality Act, as the Black Equity Organisation have suggested, remains to be seen.
A watchdog report by the Investigatory Powers Commissioner’s Office previously identified non-compliance of intelligence agencies with the UK’s torture policy in cases where there is a “real risk of torture”. This is now sparking criticism of the torture policy itself, which is coming under increasing scrutiny. In particular, the human rights group Reprieve, have declared the policy to be “fatally flawed”. For example, it is being suggested that ambiguities in the policy may allow for “torture tipoffs” as in the case of Jagtar Singh Johal.
IN OTHER NEWS
The definition of “sex”, as a protected characteristic in the Equality Act 2010, is under review. Ministers are considering whether to change the definition of “sex” under the Act so that it refers to a person’s biological sex at birth. However, the potential consequences for the trans community are being raised and there are suggestions that it may enable single-sex spaces and events to ban trans people from entry. The Minister for Women and Equality has requested advice from the Equality and Human Rights Commission about this, and their initial response urges the UK to carefully investigate the practical implications that this change could have.
The UK’s approach to unaccompanied asylum seeker children came under further scrutiny this week. Firstly, the UK government has been warned by UN experts that their treatment of unaccompanied asylum seeker children who are placed in hotels may put them in breach of their international legal obligations. This is due to the increased risk of trafficking that these children are facing, and follows rising concerns about those who have gone missing. Meanwhile, further issues are being highlighted about the potential conflict between the new Illegal Migration Bill’s provisions for unaccompanied asylum-seeking children and the Children Act 1989 as well as the Convention on the Rights of the Child.
IN THE COURTS
The European Court of Human Rights have requested that the UK provide written responses to the application of NSK v the UK. This concerns an Iraqi asylum seeker’s human rights if removed to Rwanda, and in particular his Article 3 rights (prohibition of torture and inhuman and degrading treatment) on account of the risk of harm that he would face while awaiting decisions on his asylum application in Rwanda. The Court have also notified the UK government that the interim measures which were implemented by the ECtHR in June 2022 to prevent the applicant’s removal to Rwanda, have now been lifted. This is due to the fact that the High Court had quashed the Home Secretary’s decision to remove NSK to Rwanda becuase of a failure to properly consider the applicant’s evidence and also a failure to provide adequate reasons for the decision. A summary of the legal human rights questions that the UK now has to answer, can be found here.
The European Court has also determined that there was a violation of Article 10 (freedom of expression) in the protest case of Drozd v Poland. This case concerned a year-long ban on entry to the Sejm building which had been imposed on protesters against the Government’s judicial reforms. In particular, the protesters had displayed a banner outside the Sejm reading “Defend Independent Courts”. Distinguishing between protests that actually interfere with parliamentary debate and those which occurred outside of the building, the court held that in this case the sanction was not justified and violated Article 10.
This is not a post about the conflict between the provisions of the Illegal Migration Bill and the European Convention on Human Rights (an issue which has already attracted a considerable amount of critical academic commentary – see here and here). Instead, it is a post about the Bill’s potential conflict with the EU Charter of Fundamental Rights (‘CFR’) and the UK’s commitments under the EU-UK Withdrawal Agreement, whether (and why) such a conflict matters in domestic law and how (if at all) that conflict could be resolved.
This might appear to be a quixotic line of discussion. We have been told, after all, that Brexit is done and that the CFR has been excised from the UK’s domestic legal systems (section 5(4) of the European Union (Withdrawal) Act 2018) and that other aspects of EU rights and equality law can be overwritten at will by Westminster. But, as we explore, this is not necessarily the case. Article 2 of the Northern Ireland Protocol (or Windsor Framework under the recent rebrand), the measure’s rights and equality provision, moreover, has important implications for legislative developments that the UK is seeking to pursue on a UK-wide basis.
“The principal issue in this case is whether section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”) confers on the public a right not only to walk or ride a horse on the commons but also to camp there overnight.”
That Friday the 13th was indeed unlucky for the wild camping community, if not wider society. For with the handing down of that judgment, the last remaining rights to wild camp without the permission of the landowner in England and Wales were extinguished.
This case, therefore, represents more than just a landowner seeking to prevent campers using their land without permission. Rather it is a further step in the seemingly inexorable privatisation of the English Countryside for the benefit of the few, to the detriment to the many, and with the full-throated support of the law.
In considering this unfortunate development, I will first set out the background to thecase, then examine the reasoning underpinning the judgment. I will then situate this case in the wider context of public access to the countryside, and ask whether and how this public good can be reconciled with the private property rights of landowners in England and Wales.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.