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There have been significant protests in the USA following the death of George Floyd. Mr Floyd, a black man, died after his neck was knelt on whilst he was being detained. Mr Floyd repeatedly said he couldn’t breathe, but despite this the position was maintained for several minutes.
Derek Chauvin, the white officer who detained him, has been arrested and charged with murder. Three other officers have been sacked. The County Prosecutor has suggested it is likely they will also be charged in due course.
The case has triggered widespread protests about the treatment of black people by the police. Previous incidents, such as the fatal shooting of Michael Brown, exacerbate concerns. Thousands also protested in London, where the march moved from Trafalgar Square to the US embassy (located in South London).
In the US the largely peaceful protests have been marred by looting and arson attacks. The police station in Minneapolis was set on fire. A number of US cities have imposed curfews which have been defied. Police have used tear gas and rubber bullets to try and control crowds.
A black CNN journalist and his camera crew were arrested by police whilst reporting in a protest in Minnesota. The group was later released and the governor apologised for the arrest.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.
Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.
Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.
The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive. Continue reading →
The controversial Trade Union Bill this week passed its second reading in the House of Commons by a majority of 33 MPs. The bill contains plans to impose a minimum 50% turnout in industrial action ballots, whilst public sector strikes will require the backing of at least 40% of all eligible voters. It further includes proposals to:
Increase the period of notice given by unions before a strike can be held from seven to 14 days;
Permit the employment of agency workers to replace permanent staff during strike action; and
Introduce fines of up to £20,000 on unions if pickets do not wear an official armband.
The civil rights organisation Liberty has warned that the bill will infringe the right to join a trade union, protected by Article 11 of the ECHR. Director Shami Chakrabarti has described the measures as a “spiteful and ideological attack” on freedoms that “must have one-nation Tories like Disraeli and Churchill spinning in their graves.”
Aspects of the bill have moreover come into criticism from senior members of the Conservative party. David Davis MP made clear his opposition to the requirement that organisers of picket lines register their details with the police, suggesting that the proposed reform was reminiscent of the Spanish dictatorship of General Franco.
Business Secretary Sajid Javid has, however, defended the measures, insisting that the reforms would “stop the ‘endless’ threat of strike action” and ensure that the right to strike was “fairly balanced with the right of people to be able to go about their daily lives and work.”
Other news:
A coroner has concluded that the suicide of 60-year-old Michael O’Sullivan was a direct result of his assessment by a DWP doctor as being fit for work. Mr O’Sullivan, who suffered from severe mental illness, hanged himself after his disability benefits were removed. The Independent reports.
Proposals announced by the Ministry of Justice to further increase court fees have been criticised by the Bar Council, which has warned that higher costs would give wealthy individuals and big business an unfair advantage over weaker parties in court proceedings. The Bar Council press release can be read in full here.
The Guardian: Cuts to legal aid have led to an increase in demand for free legal representation and advice, placing considerable strain on the resources of charities and lawyers engaged in pro bono work.
Local Government Lawyer: Lord Chancellor Michael Gove has launched a review of the youth justice system, which is to be led by Charlie Taylor, former chief executive of the National College of Teaching. Mr Gove noted in a statement to Parliament that 67% of young people leaving custody reoffend within a year, and emphasised that the rehabilitation of young offenders had to be a government priority.
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
Wright v Commissioner of Police for the Metropolis [2013] EWHC 2739 (QB) – Read Judgment
Image via Richard Millett’s Blog
The High Court has found that the containment of a protester in a designated protesting pen for seventy five minutes was not unlawful at common law, nor under the Human Rights Act 1998.
On 30th March 2011, a seminar marking sixty years of British-Israeli diplomatic relations took place in Chatham House in St James’ Square, London. The Israeli President, Mr Shimon Peres, was to be in attendance, and a group of protesters from the Palestinian Solidarity Campaign took the opportunity to demonstrate outside the seminar venue.
Sindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment here.
The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).
The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.
Pharmacists Defence Association Union v Boots Management Services Ltd – Read judgment
The consequences of the change of approach of the European Court of Human Rights in the Article 11 case of Demir has definitely washed up on the shores of the UK
In a recent decision of the Central Arbitration Committee presided over by Mary Stacey, it was decided that it was necessary to amend the wording of the Trade Union and Labour Relations (Consolidation) Act 1992 (Sched 1A para 35) to make it compliant with Article 11 of the ECHR and the decision of the Strasbourg Court in Demir and Baykara v Turkey.
The decision of the CAC is a report from the front line of the battle between independent unions and employers about granting the former recognition.
Harlan Laboratories UK L & Another v Stop Huntingdon Animal Cruelty and others [2012] EWHC 3408 (QB) – read judgment
The High Court has granted a medical testing laboratory a final injunction against anti-vivisectioners protesting outside their premises.
Harlan laboratories breed animals for medical and clinical research purposes. The applicants’ harassment claim included assertions that the respondent anti-vivisection groups had verbally abused those entering and leaving its premises, blocked and surrounded vehicles entering and leaving the premises in a threatening manner and trespassed on Harlan’s property. They had also photographed Harlan’s employees and recorded their vehicle registration details. Interim injunctions had been granted restraining, inter alia, where and how often the respondents could demonstrate outside of Harlan’s premises.
The issues in this application were whether the applicants were entitled to summary judgment on their harassment claim and whether the court should grant a permanent injunction pursuant to s.3(3) of the 1997 Protection Against Harassment Act. The applicants also applied for a permanent injunction under section 37 of the Senior Courts Act 1981. Continue reading →
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
Background
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy. Continue reading →
R (on the application of Maria Gallastegui) v Westminster City Council [2012] EWHC 1123 (Admin) – Read judgment
On 27 April 2012, Maria Gallastegui, a peace campaigner and resident of the East pavement of Parliament Square since 2006, lost her legal battle to continue her 24 hour, tented vigil in protest against the folly of war and in particular the UK’s involvement in armed conflict.
The Court’s main task was to construe a new law enacted to bolster the legal armoury available to control long-term protests in the Square. Section 143 of the Police Reform and Social Responsibility Act 2011 – which came into force on 19 December 2011 – gives a local authority the power to stop “prescribed activities” such as using tents (and other structures) to sleep. They are also empowered to seize items used for these prescribed purposes ie the tents.
Austin & Others v. The United Kingdom, [2012] ECHR 459, 15th March 2012 – read judgment
The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.
The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive. Continue reading →
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Richardson v Director of Public Prosecutions [2014] UKSC 8 – 
Sindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment 
Pharmacists Defence Association Union v Boots Management Services Ltd – 
REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – 
R (on the application of Maria Gallastegui) v Westminster City Council [2012] EWHC 1123 (Admin) – 
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