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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.
Wild Camping on Dartmoor Photo: John Ryan/Alamy originally published in the Guardian 13 January 2023.
“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.
On Wednesday, Boris Johnson gave oral evidence to the Privileges Committee as part of an ongoing inquiry into whether the ex-Prime Minister misled Parliament over lockdown parties in No 10. If the Commons was misled, the Committee will determine whether that constituted a contempt of Parliament – a finding which could result in Mr Johnson’s suspension from the Commons. In his evidence, Mr Johnson accepted he mislead MPs, but that he had not done so “intentionally or recklessly”. He claimed his statements were based upon honest belief, and were made in ‘good faith’ and in reliance on ‘trusted advisers’. The outcome of the inquiry will largely rest on whether Mr Johnson inadvertently, deliberately, or recklessly mislead Parliament – with the most severe sanctions arising if he is found to have deliberately made false statements to MPs. The committee’s report is expected later in the year.
Baroness Casey’s final report on the standards of behaviour and internal culture of the Metropolitan Police Service was published this week. The review was commissioned following the death of Sarah Everard at the hands of a serving Met officer. The report describes a culture in the Met of ‘defensiveness and denial’, which lacks integrity, fails to take complainants seriously and has discrimination ‘baked into it’. In Baroness Casey’s own words: ‘we have found institutional racism, misogyny and homophobia in the Met’. This report, alongside tragic events like Ms Everard’s death and the recent conviction of long-serving Met officer David Carrick, highlight a loss of public confidence in the police force.
In France on Thursday, protesters gathered across the country to demonstrate their opposition to President Macron’s pension reform bill, which proposes raising the age of retirement from 62 to 64. The protests began in January, but escalated this week when President Macron forced the proposed bill through parliament without a vote in the National Assembly. It is estimated that approximately one million people took part in the demonstrations. In Bordeaux, the front door of the city’s town hall was set on fire and police have been accused of using excessive force against protesters. Before the bill becomes legislation, it must pass a review by the Constitutional Council.
In Episode 181 Jim Duffy discuss small boats and some big, constitutional changes on the horizon, with Prof Jim Murdoch, Shameem Ahmad and Angus McCullough KC
After being placed briefly on ice, the Bill of Rights Bill is now described by Justice Secretary Dominic Raab as ‘ready to go’. The Bill would repeal and replace the Human Rights Act 1998 with what Angus McCullough KC describes as a “hotch-potch of measures” designed to secure a “conscious uncoupling” with the Strasbourg Court.
Joining Angus and me on the latest episode of Law Pod UK are Shameem Ahmed – the new CEO of the Public Law Project – and Jim Murdoch, Professor of Public Law at the University of Glasgow and long-time Council of Europe expert on human rights law and practice.
We examine the key features of the Bill, place it in a wider European and international legal context, and discuss the direction of travel for human rights law in the UK in the wake of the Illegal Migration Bill.
And finally!
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In Episode 182 Emma-Louise Fenelon speaks to Matthew Hill of 1, Crown Office Row about three recent decisions concerning unlawful killing. This episode refers to the following cases:
R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire[2020] UKSC 46
2023 has already been a landmark year for nuisance, with the Supreme Court handing down its controversial decision in Fearn v Tate Gallery (as discussed on this blog).
The good news for those with a particular interest in the bothersome behaviour of neighbours is that Fearn is only the start.
This post focuses on one of the many fascinating points raised by these cases – namely, the slippery concept at the heart of both Davies and Jalla: continuing nuisance.
The ICC has issued an arrest warrant against Vladimir Putin for the war crime of the unlawful deportation and transference of children. The Russian commissioner for children’s rights, Maria Alekseyevna Lvova-Belova, has also been issued an arrest warrant. According to Ukrainian government figures, 16,266 children have been deported to Russia since the beginning of the war. Russia is not a member of the ICC and so it is unlikely that the suspects will be arraigned in court, but it will make international travel more difficult and place political pressure on the Russian government. This is the first instance of the court issuing an arrest warrant for the leader of one of the five permanent members of the UN security council.
Donald Trump told supporters on his social network Truth Social that he expects to be arrested on Tuesday and has urged them to stage mass protests. If indicted, Trump would be the first former US president to see criminal charges. The case concerns ‘hush money’ payments made through Trump’s lawyer to porn star Stormy Daniels before the 2016 presidential election. Once all the evidence has been taken, the grand jury will vote on whether to recommend criminal charges to the Manhattan District Attorney, Alvin Bragg, who determines what charges he thinks he can prove beyond reasonable doubt, if any, but there is no deadline on this process. Trump promises to continue his campaign for the 2024 presidential nomination even if he is indicted. He also faces upcoming inquiries into his attempt to overturn the result of the 2020 election.
Suella Braverman has said she has been “encouraged” by “constructive” talks with the ECHR about changing the Rule 39 injunction process that blocked the Home Secretary deporting migrants in 2022. The UK Government has requested a higher legal threshold for any such injunction that may be imposed on future deportation flights, and advised the ECHR that the British judiciary has ruled the Rwanda deportation scheme lawful. A government source says changing the injunction is likely to prove a necessary step in getting the scheme “off the ground,” Braverman having vowed to enact it by the summer.
In other news
The Morrisons supermarket chain has been fined £3.5million after an employee died when he fell from the stairs during an epileptic seizure. Matthew Gunn suffered fatal head injuries at a Morrisons shop in Gloucestershire in September 2014. A jury found the company guilty of three health and safety charges. The management staff had been made aware of Gunn’s epilepsy but did not take adequate steps to prevent the danger, failing to move his locker to the ground floor so that he did not have to risk using the stairs. Gunn’s parents described the devastating impact that their son’s death had on their physical and mental health, as well as on their marriage.
CIVICUS Monitor, a global research organisation which rates countries’ democratic and civic values, has downgraded the “increasingly authoritarian” UK in its annual global index of civic freedoms. Because of the government’s introduction of restrictive legislation including those related to protests, the CIVICUS ‘People Power Under Attack 2022’ report downgraded the UK’s rating from “narrowed” to “obstructed,” a category which includes Poland, Hungary and South Africa. Highlighted legislation included the Police, Crime, Sentencing and Courts Act and the Public Order Bill (currently going through Parliament), which give the police additional powers to restrict the activities of protesters, and the group also point to the government’s “hostile rhetoric” towards migrants and human rights campaigner groups.
The White House said Joe Biden spoke to Benjamin Netanyahu about his government’s plan to reform Israel’s judicial system. The prime minister has described the overhaul as necessary to rebalance a power structure which prevents legislators from enacting the voting public’s will, while the US president “underscored his belief … that democratic societies are strengthened by genuine checks and balances.” Opponents of the proposed measures have staged a series of large-scale protests in which members of the military elite have participated.
The Ministry of Justice has announced plans to increase sentences for murderers with a history of coercive behaviour or who use excessive violence towards their victims. The proposals come after recommendations from barrister Clare Wade, who criticised the current sentencing guidelines for failing to take into account the history of abuse that precedes many domestic murders. The government also plans to review manslaughter sentencing in ‘rough sex’ cases.
The Guardian newspaper reported the decision in Re X (Disclosure to Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 (Fam) with the headline, “social worker who abused ex-partner loses fight to keep details from regulator”. Reading that one might instinctively think, “well, of course he lost”. For my part, when I read beyond the Guardian’s journalism and into Knowles J’s 67 paragraph judgment in this matter, I may also have thought “well, of course he lost”.
The Illegal Migration Bill has been presented in parliament and published. The bill has sparked extensive legal discussion over potential issues of compatibility with the European Convention of Human Rights. Indeed, the government stated their wish to proceed with the bill in the absence of being able to make a statement of convention rights compatibility under s.19(1)(a) Human Rights Act 1998. This in conjunction with Suella Braverman’s widely quoted statement that this “does not mean the provisions in the bill are incompatible with convention rights, only that there is a more than 50 per cent chance that they may not be”, has been less than reassuring and many anticipate future challenges under the ECHR. Human Rights Watch have gone as far as to state that the bill is “unworkable”.
The Home Office and Department for Education have been threatened with legal action if they fail to stop housing unaccompanied asylum-seeking children in hotels on the basis that this fails to ensure crucial protection and scrutiny over children’s welfare. Meanwhile, 21 London borough councils have signed a letter to the home secretary regarding the treatment of asylum seekers and urging the government to overturn their hotel policy and establish alternative placement options.
In other news
Sanctions are increasingly being used by the UK and EU to tackle international gender-based violence. As part of the Foreign, Commonwealth & Development Office’s Women and Girl’s strategy, and on International Women’s Day, the UK announced sanctions against 1 entity and 4 individuals including military figures and government institutions. This adds to a previous set of designations announced in December 2022, as well as similar sanctions imposed by the EU to target perpetrators of conflict-related sexual violence.
The Data Protection and Digital Information (No 2) Bill was also introduced to parliament this week. It includes changes to definitions of personal data as well as proposing a broader definition of “scientific research purposes” which could expand the contexts in which personal data can be processed. A useful analysis of the bill can be found here.
In the courts
The High Court has found in favour of a mother who brought proceedings against the Ministry of Justice over a legal aid dispute. She had been refused legal aid funding when trying to enforce a child custody agreement because her abusive ex-partner had limited her access to her son. The legal aid agency had denied funding on the basis that her son was not living with her and therefore not a dependant. The court held that the Ministry of Justice’s guidance stipulating that a child could only be a member of one household was unlawful. This decision requires the Ministry of Justice to adjust their guidance to expand the scope of legal aid funding.
Climate activists who protested as part of an Insulate Britain campaign have recently been imprisoned for contempt of court. This was due to having explained their motivation for protesting to the juries, contrary to the judge’s direction. The court’s restrictive approach on expressing such motivation has sparked discussion about the limits of freedom of expression.
In a separate context, freedom of speech issues are raised following a decision by the Leeds Magistrates Court to quash preacher Mr McConnell’s conviction for causing harassment, alarm or distress by publicly misgendering a transgender woman. Mr McConnell defended his statements on the basis that he had “stayed true to God and true to [his] beliefs.” The judge declared that free speech “is important and vital” and that the court were not there “to opine on whether or not the appellant’s views on the Bible are correct or misplaced.”
The European Court of Human Rights have held that there was a violation of the right to respect private and family life (Article 8, ECHR) as well as violation of the limitation on the use of restrictions of rights (Article 18, ECHR) in the case of Kogan and Others v Russia. The case concerned a Government procedure for revoking a residence permit that had been issued to a US-national human-rights activist. It was held that this revocation was aimed at punishing human-rights activities and therefore unlawful.
Rishi Sunak’s pledge to “stop the boats” crossing the Channel will see a Bill brought before Parliament this week aimed at stripping those who arrive in the UK via small boats of their right to claim asylum. Potential measures under the Bill include new powers to declare claims inadmissible and a duty on the Home Secretary to remove such asylum-seekers to Rwanda or another third country. There may also be new criminal offences created for those who arrive via small boats, building on or adopting the draft Illegal Immigration (Offences) Bill. It is not clear how these plans will comply with the UK’s international obligations given the European Court of Human Rights’ previous intervention on the issue and their granting of an interim injunction, although the High Court gave the plans the green light back in December. The move also raises questions about the government’s plans for a domestic ‘Bill of Rights’, which previously included a clause obliging the UK courts to ignore interim measures from Strasbourg.
Suella Braverman is expected to introduce an amendment to the Public Order Bill to provide protective measures for journalists following defeats in the House of Lords. The Lords voted in favour of preventing reporters from being subject to police action after Hertfordshire police had to issue an apology to various reporters and photographers were detained at a Just Stop Oil demonstration in December last year. The government has not accepted the wording of the Lords’ amendment, with their proposed version merely preventing a police constable from detaining a person for the sole purpose of observing or reporting on a protest, which begs the question what exactly the government aims to exclude in doing so.
In episode 180 of Law Pod UK, Lucy McCann speaks to Dr Stefan Theil, the John Thornley Fellow and Director of Studies in Law at Sidney Sussex College, University of Cambridge, about what role the law can play in tackling the climate crisis. Dr Theil discusses the framework and central argument in his recent book ‘Towards the Environmental Minimum’ (Cambridge University Press, 2021). In the episode Dr Theil argues for an incremental human rights-based approach to combat the climate crisis and environmental degradation, and explores the extent to which courts are well placed to adjudicate on environmental issues. The discussion covers the concept of polycentricity, protections offered by domestic constitutions and the value of ascribing rights beyond human beings.
Two men are in a relationship and want to have a child. They approach a female friend who is happy to be their surrogate. She has previously had a voluntary sterilisation procedure, so she would need in-vitro fertilisation (IVF) using a donor egg (a procedure known as gestational surrogacy), to help her friends realise their wishes. This is where they all encounter a problem: voluntary sterilisation makes the woman ineligible for publicly funded IVF.
In JR176(2)’s application for judicial review [2022] NIKB 21, the two men challenged the eligibility criteria for publicly funded IVF on a number of grounds, among which this post will focus on two: a breach of the right to private and family life under Article 8 ECHR and Article 8 taken with the right not to be discriminated against contrary to Article 14 ECHR.
The UN General Assembly backed a resolution condemning Russia’s actions and calling for an end to the war on Thursday, the eve of the anniversary of the invasion. With 141 supporters, 32 abstentions and seven voting against, the resolution reiterated the UN’s support for Ukraine and called for a “comprehensive, just and lasting peace.” Abstentions included China, India and South Africa, while Russia, North Korea and Syria were among those voting against. General Assembly resolutions are not legally binding but carry great political weight, and the UN Security Council is obstructed from action by Russia’s veto. On the same day in Vienna, a large number of delegates walked out of a parliamentary assembly of the Organization for Security and Co-operation in Europe (OSCE) in protest against Austria’s decision to give visas to Russian officials.
Leading supermarkets in the UK have introduced customer limits on purchases of fruits and vegetables. According to the British Retail Consortium, the shortages are expected to last a few weeks until reliance on imports from Spain and north Africa is counteracted by the start of the UK growing season. Tom Bradshaw, one of the leaders of the National Farmers’ Union (NFU), has called for the UK to “take command” of its supply chains. Citing Brexit, the Ukraine War, and climate change, the NFU wants the government to use the powers granted it by the Agriculture Act 2020 to address exceptional market conditions.
The Marriage and Civil Partnership (Minimum Wage) Act comes into force on Monday. Campaigners argued that the previous position of the law, which permitted 16- and 17- year-olds to marry with parental consent, was being exploited to coerce young people into child marriages for religious or cultural reasons. The new law will automatically recognise those married under the age of 18 as victims of forced marriages, carrying a sentence of up to seven years in prison for those responsible. The legislation also applies to non-legally binding ceremonies. This law does not apply in Scotland and Northern Ireland, where the minimum marriage age will remain 16.
In other news
Ex-Hollywood producer Harvey Weinstein has been sentenced by a Los Angeles court to an additional 16 years in prison for rape. Weinstein was convicted of attacking an actress in a hotel room in February 2013. He denied the charge, telling the court his accuser was “an actress with the ability to turn on her tears” and begged for leniency: “please don’t sentence me to life in prison, I don’t deserve it.” The 70-year-old had already been serving a 23-year sentence in New York for another conviction.
Dominic Raab has announced that rules barring transgender women with male genitalia or those who had committed violent or sexual offences from female prisons in England and Wales apply from Monday. The news follows the recent case of Isla Bryson, the transgender woman convicted of two counts of rape who was subsequently remanded to a woman’s prison in Scotland, the media outcry against which prompted the Scottish Prison Service to announce an “urgent review” of transgender inmates.
Restricting the liberty of a child is a serious step only to be taken in the most difficult of circumstances. Children may require secure accommodation by the Local Authority in a variety of circumstances. A child could require urgent mental health treatment in a secure hospital. A child may require strict supervision with a high staff to child ratio, in order to protect them from harm and meet their complex needs. Applications are made where a child poses a significant risk of harm to themselves or others. Applications for secure accommodation or deprivation of liberty orders have increased significantly in recent years. There is now a severe lack of regulated accommodation, and the courts are having to use their inherent jurisdiction to approve DOLS regimes where unregulated placements are the only option.
In Episode 179 of Law Pod UK Lucy McCann speaks to Richard Ager and Clare Ciborowska who examine the current situation and, in particular, consider the case of Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam) in which Sir Andrew McFarlane, President of the Family Division of the High Court, gave a scathing Judgment on the provision of secure accommodation to children in England & Wales. The episode also explores the recent decision of Manchester City Council v P ([2023] EWHC 133 (Fam) which considered whether restrictions placed on a child in respect of mobile phone/internet use amounted to a deprivation of liberty.
The episode discusses the new national deprivation of liberty court. The Nuffield Family Justice Observatory recently published this report, analysing the first two months of applications to the national deprivation of liberty court.
In a headline-grabbing decision, the Supreme Court has decided that an observation platform at the Tate Modern Art Gallery (“the Tate”), which overlooks a number of nearby luxury apartments, gives rise to the tort of nuisance –read judgment
The residential flats (right) are overlooked by the Tate Modern’s viewing platform. Photograph: Victoria Jones/PA
In 2017 a group of apartment owners from the Neo Bankside building issued proceedings complaining that visitors accessing the south side of the Tate’s observation platform could, and frequently did, look directly into the living areas of their homes (which have floor-to-ceiling windows). The judgments refer to visitors “peering in”, “looking”, in some instances waving to the flat occupants (friendly), and there was even a mention of someone looking in using binoculars (creepy). The evidence at trial also established that pictures taken from the platform, including views of the apartment interiors, had been posted on social media. The owners alleged that the Tate’s operation of the observation platform gave rise to the tort of nuisance, and they sought an injunction requiring it to prevent the intrusion they were experiencing (for example by blocking off that part of the platform), or damages in the alternative.
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