We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
On Tuesday the government published its response to the public inquiry into Brook House Immigration Removal Centre. The inquiry was a response to a 2017 investigative documentary, which included footage of staff abusing detained people. The inquiry’s report was published on 19 September 2023. In its response the government described the documentary footage as “utterly shocking”, but emphasised the fact that “[d]etention is and will remain a fundamental element of the immigration system”. The government rejected the report’s key recommendation that it should set a time limit on detention. The response sought to highlight changes that have been made across the immigration detention estate since the events of 2017, such as the improved ratio of custodial staff to detained persons and the introduction of accredited training and a code of conduct for staff. The government stated that a “comprehensive review” into complaints and whistle blowing processes is being undertaken.
In other news, a memorandum disclosed to the Afghanistan Inquiry shows that in 2011 a UK Special Forces commander raised concerns that “there is in effect an unofficial policy… to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained… and the subsequent fabrication of evidence to suggest a lawful killing in self-defence”. The inquiry is investigating alleged unlawful conduct by UK Special Forces in Afghanistan between 2010 and 2013 and the adequacy of the Ministry of Defence’s response to concerns that were raised at the time. Johnny Mercer MP, the Minister for Defence People and Veterans, has stated in his witness statement that he was shown a copy of the memorandum but not allowed to keep it. Mercer been ordered to disclose the names of those who told him about alleged war crimes to the inquiry.
In international news
The Hong Kong government passed new national security legislation known as ‘Article 23’. The new law increases prison sentences for national security related offences, including a maximum jail sentence of 10 years for sedition where an ‘external force’ is involved. Any speech which is critical of the government could potentially come under the scope of sedition, and Hong Kong’s justice minister has since stated that a person might commit an offence if they share criticism of the legislation online. The legislation gives the police the power to detain someone for 16 days without charge and to prohibit the person from consulting with a lawyer for 48 hours. UK Foreign Secretary David Cameron previously stated that the legislative proposals would “have a negative impact on the people of Hong Kong in the exercise of their rights and freedoms”. The EU has expressed concerns over the legislation’s ‘sweeping provisions and broad defintions’ and described the increased penalties, which have extraterritorial reach, as “deeply worrying”.
In the courts
The Court of Appeal ruled that an individual’s views on climate change do not form part of the ‘circumstances’ of criminal damage which is committed as part of a protest. Previously, climate protesters had successfully relied on the defence that they honestly believed the owner of the property would have consented to the damage if they had known of the damage “and its circumstances”. The Court emphasised that the “circumstances must belong to the damage, not to the defendant”, and that there “must be a sufficient connection between the damage and its circumstances”. The case under consideration involved a climate protester (“C”) who had caused damage to the offices of various charities and political parties. The court held that “what C had to say about the facts of or effects of climate change could not amount to the circumstances of the damage” and that such evidence would be inadmissible in relation to the consent defence.
Science tells us that animals are social and sentient creatures, that they experience the world much like we do. But the law treats them very differently. Despite some progress, animals remain inadequately protected, and they can suffer in entertainment, research, farming, and conflicts.
The interconnectedness of humans, animals and the environment is recognised by the World Health Organisation, and the body of scientific work into intelligence in the animal kingdom continues to grow: the songs of Humpback whales are passed down through generations; crows and ravens are renowned for their exceptional problem-solving skills; elephants display empathy and emotional sensitivity; chimpanzees and orangutans exhibit complex tool use; dolphins engage in sophisticated vocalisations and coordinated behaviours.
The Government has announced a new definition of extremism. Michael Gove, communities secretary, told ministers on Thursday that they should not interact with any groups labelled as extremist or that do not maintain ‘public confidence in government’. While the former definition encompassed ‘vocal or active opposition’, the new definition refers to the ‘promotion or advancement of ideology’. This move away from physical acts into ideas has been criticised as having the potential to infringe on the right to freedom of thought when there is no harmful consequence – Miriam Cates MP warned of its potential to ‘chill speech of people who have perfectly legitimate, harmless views’. Any organisations judged to fall within the remit of the new definition will be excluded from receiving funding or having an audience with any minister. If a group feels that their labelling as extremist is incorrect, they can challenge the ministerial decision before the courts – but there is no process for internal appeal. The chief executive of MEND, one of the organisations mentioned by Mr Gove, told the BBC he would pursue legal action if the organisation was labelled extremist. Brendan Cox, widower of Jo Cox MP, told The Guardian in the wake of the change that ‘extremism deserves to be treated seriously and soberly, not used tactically to seek party political advantage’.
On Wednesday, the House of Commons passed the Post Office (Horizon System) Offences Bill, which automatically quashes the convictions of hundreds of sub-postmasters wrongly convicted as a result of the Horizon IT scandal. This is the first time a piece of legislation has been used in order to vacate convictions en masse. On top of the £179m already paid to those wrongly convicted, a £600,000 lump sum has been made available to sub-postmasters wrongly convicted, and a £75,000 payment was approved for any who, though not convicted, suffered mistreatment. Though the subject of the Bill is uncontroversial, some lawyers have been left feeling uneasy about its methods; legal experts have warned that legislating to overturn convictions threatens to override the judicial process and could set a dangerous precedent.
In wider news
Voting in Russia’s presidential election began on Friday with ballots continuing to be cast over the weekend. Vladimir Putin is standing for his fifth term as president after amendments to the constitution were made in 2020 to allow a candidate to stand for fifth and sixth terms; another term will see him having served 30 years in power. Although a handful of candidates are running against him, others have been disqualified and many consider that those remaining pose no credible threat. Nations have been called upon by the Parliamentary Assembly of the Council of Europe to refuse to recognise and legitimate the results of this weekend’s election, which has been referred to as a ‘carefully staged legitimisation ritual’.
Five years after the proposal for regulation was first tabled, the EU voted in a plenary session on Wednesday to adopt the Artificial Intelligence (AI) Act, now expected to receive final approval within weeks. The Act categorises the risk level of various programs and imposes stepped restrictions accordingly, including banning any system of AI deemed to pose an ‘unacceptable risk’ (with exemptions for military and national security use). The response to the Bill has been mixed – while many are praising the EU for being the first to create a set of binding regulations on AI, the Act has been criticised both for being too burdensome and stifling competition in the tech sector and for its silence on crucial human rights matters such as biometric mass surveillance and predictive policing. Amnesty International has suggested that the failure of EU lawmakers to ban the export of AI incompatible with the new legislation will allow companies to profit from technologies the Union itself has deemed excessively dangerous and harmful, establishing ‘a dangerous double standard’.
An open letter signed this week by twelve Israeli human rights organisations has accused Israel of ignoring the provisional ruling delivered by the ICJ over the military campaign in Gaza. 25 NGOs have also sent a letter this week to President Joe Biden calling for the United States to end their ‘support for the ongoing catastrophic humanitarian situation’ by terminating the provision of weapons and security assistance. This comes as the President announced a floating pier would be built for aid to access Gaza while President of the EU Commission Ursula von der Leyen announced that a sea corridor would be opened into Gaza to supply food amid fears of an impending famine.
In the courts
On Tuesday, the ECHR published a judgment confirming that the right to conscientiously object to military service is protected by the right to freedom of conscience and religion under Article 9 of the European Convention on Human Rights and Freedoms. The applicant, Murat Kanatlı, was convicted for refusing to perform compulsory Turkish military service on the grounds that he conscientiously objected. The statutory provisions did not allow him to undertake any other kind of civilian service in substitution, and therefore there was no possibility a fair balance between his interests and the interests of society had been struck. Accordingly, the Court found a breach his rights under Article 9.
Two courts in Japan ruled last week that the country’s ban on same sex marriage was unconstitutional. In separate rulings, the Sapporo High Court ruled that the lack of recognition of same sex marriage in the Civil Code violated the constitution while the Tokyo District Court declared that the ban violated the dignity of the individual and was therefore unconstitutional. These are the latest in a slew of Japanese judgments over the last five years suggesting the that the legislature should recognise same sex marriage in order to honour the rights of citizens. Though polls suggest same sex marriage enjoys support from up to 70% of the population, the government have shown no indication that this is likely to occur in the near future.
Thirty-three Metropolitan police officers are suing the Met for trauma stemming from the Grenfell Tower fire. Civil claims are being pursued for psychiatric injury suffered during the tragic event in 2017 which killed 72 people. Mediation is ongoing and it is hoped an out of court settlement will be reached. The proceedings have commenced against the Met Police after it was announced last month by the Fire Brigades Union that the claims of firefighters responding to the tower fire had been settled for over £20m. It is expected that the second and final report of the Grenfell Tower Inquiry will be published this spring or summer and will inform the Met Police’s decision as to whether to bring criminal charges against any parties, including corporate and gross negligence manslaughter.
In Dillon [2024] NIKB 11, the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was challenged head on. The Court disapplied a number of provisions of the Act as being in breach of relevant aspects of EU law which continue to apply to Northern Ireland via the Windsor Framework. We have covered the precise EU law aspects of Dillonelsewhere and will only cover the ECHR elements of the judgment in this post. As will become clear, however, there is a critical link between these two main aspects of the judgment.
The disapplication of any part of an Act of the UK Parliament is infrequent enough to be notable. Given that Dillon marks not only some of the most extensive disapplication in history but also is the first such event after Brexit, the decision is significant. But, as we will demonstrate, the decision is not radical. Far from it, much of Mr Justice Colton’s 738-paragraph judgment is an orthodox application of the relevant law.
Requiring the bill to maintain full compliance with domestic and international law
Ensuring that Rwanda is only considered a safe county “when and as long as” arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice (for example ensuring that asylum seekers are not sent back to the countries from which they fled).
Allowing decision-makers, such as immigration officers, courts and tribunals to consider whether or not Rwanda is a safe country and to grant interim relief.
Protecting victims of modern slavery from being removed to Rwanda without their consent.
Parliamentarians in France have voted to amend the country’s constitution to include a “guaranteed freedom” of abortion. The measure passed in an overwhelming 780-72 vote. The change was prompted by Dobbs v Jackson’s Women’s Health Organisation, a case in which the US Supreme Court overturned Roe v Wade and so ended the right to abortion for millions of women in the USA.
The people of the Republic of Ireland have rejected proposals to “modernise” the country’s constitution. The country held a referendum to amend Article 41 of the Constitution. Article 41 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” and that the state shall “guard with special care the institution of Marriage, on which the Family is founded”. The proposed changes would have substituted marriage with “durable relationships” and would have replaced the clause relating to mothers’ duties in the home with a clause recognising care provided by family members by “reason of the bonds that exist among them”.
An UN report by the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has found that there are reasonable grounds to believe that conflict-related sexual violence occurred during the 07 October attacks in Israel including rape and gang rape. A separate internal UN report has described widespread abuse of Palestinian detainees including physical and sexual violence. As the humanitarian conditions in Gaza rapidly deteriorate, countries that previously withdrew UNRWA funding, due to allegations that employees of the agency participated in the 07 October attacks, have announced that they are resuming funding. This includes the EU Commission, Sweden and Canada. In his State of the Union address President Biden has put forward a plan to build a “temporary pier” on Gaza’s coastline to distribute aid.
In the courts
The US Supreme Court has unanimously held that Colorado cannot remove Donald Trump from the ballot of the presidential elections. The Colorado Supreme Court had held that Trump was ineligible to appear on the ballot, under Section 3 of the 14th Amendment to the Constitution which disqualifies anyone “engaged in insurrection or rebellion” against the federal government. Section 3 was originally enacted after the US Civil War to prevent supporters of the Confederacy from taking public office. The US Supreme Court held that only Congress, rather than individual states, can enforce Section 3. A particular consideration was the potential for “chaos” if different candidates were eligible in various states.
Legal news abounds these days with stories of fabricated decisions and authorities generated by ChatGPT and similar AI mechanisms. But there’s nothing like a bit of old-fashioned human plagiarism to tickle the palates, and the full force of a judge’s fury was unleashed on such an attempt recently in the High Court.
The facts appeared to be dry. The Claimant (an oil and gas company) commenced an arbitration claim against the Defendants, three companies in a banking group. It sought to enforce, under s. 66 of the 1996 Arbitration Act, what was said to be a Kuwaiti arbitration award dated 28 November 2022. This, in turn, was said to have been rendered in pursuance of an arbitration agreement between the claimants, Contax BVI, and the Defendants.
The Court was told that for a number of years Contax BVI had been attempting to liquidate an investment account held by the defendant banking company – to the tune of some €53 million. The Claimants then stated that this had been the subject of an arbitration under the auspices of the Kuwait Chamber of Commerce and Industry Commercial Arbitration Centre which had resulted in an award in its favour.
A number of documents were exhibited to the claimant’s witness statement, including the arbitration award, a decision by the Kuwaiti Commercial Court of Appeal and a document, said to be a statement by one of the claimant’s legal advisors, saying that attempts to enforce the award and Court of Appeal ruling in Kuwait had been unsuccessful. As Butcher J describes it,
“This application was put before me, in the ordinary way, on a without notice basis, for consideration on the papers, in early August 2023. Judges of this court have to consider very many paper applications of this type and others. I recall considering this one with some care, in that I did not find it all very easy to understand. I gave, I would say in retrospect, undue allowance for difficulties apparently arising from documents being prepared by people who were not native English speakers and/or whose grasp of English procedure was not perfect. It did not, however, occur to me that any of the documents might be fabrications. I was not on the lookout for fraud, and did not suspect it.”
Unsuspecting as he was, the judge made the order and gave the claimants leave to enforce it. But the defendants came back with a statement that there had never been any arbitration at all. As they put it in their skeleton argument supporting their application to have the order set aside:
“that the award is an out-and-out fabrication might seem at first blush unlikely – but substantial parts of it have been taken from Picken J’s judgment in Manoukian v Société Générale de Banque au Liban SAL [2022] EWHC 669 (QB)”
Butcher J described this case as “unique” in his experience, and “of the utmost seriousness”, and held that “there was no arbitration agreement or arbitration, and that the award and the Kuwaiti judgment are fabrications. I do not consider that there is a triable issue in relation to this.”
Documents before the Court
AI is definitely better at the business of fakery; due to the “black box” nature of its processing, it is almost impossible to identify the sources of its data. For a human processor it is much more difficult to conceal the true author of the material he or she has copied. So it was that the judge was able to establish the “arbitration award” , supposedly translated from Arabic, had substantial passages which are taken, with some modifications, from the judgment of Picken J in Manoukian, concerning completely different parties. It is best to see [40]-[44] of Butcher J’s judgment to get the full flavour of the claimant’s efforts to mislead the court but here is an example:
Extract from so-called Arbitration Award
” [5] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Contax Partners Inc BVI an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Contax Partners Inc BVI issued the proceedings on 1 December 2021; pleadings closed on 4 April 2022, and expedition was ordered at a hearing which took place on 21 June 2022. [6] In further consequence of the need for expedition, I indicated at a hearing which took place on 7th December 2021 that Contax Partners Inc BVI claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers to where he wish. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects at all or, at least, in any particular detail.”
Extract from Picken J’s decision in Manoukian:
” [3] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Mr Manoukian an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Mr Manoukian issued the proceedings on 19 December 2020; pleadings were closed on 6 April 2021, and expedition was ordered at a CMC which took place on 8 June 2021. [4] In further consequence of the need for expedition, I indicated at a short hearing which took place on 25 February 2022 that Mr Manoukian’s claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects either at all or, at least, in any particular detail.”
As Butcher J points out, these examples, which could be multiplied, largely speak for themselves. He considered the following features to be important:
“(1) The text of the Award, in significant measure, derives from the text of Picken J’s judgment. This is obvious inter alia from: (i) the use of exactly the same, far from standard, defined terms (eg ‘General Transfer Right Issue’); (ii) the use of English legal terms (eg ‘claim in debt’, ‘exclusion clause’, ‘specific performance’); (iii) exactly the same phraseology being used, including the argot of English judgments (‘be that as it may’, ‘the submission is not entirely without merit’, ‘that said’, ‘fall to be considered’); (iv) the use of the same punctuation, even when it was not obvious, and arguably incorrect (eg in paragraph 129 of Picken J’s judgment, ‘…in debt, in the event, that the Court…’, both commas also appearing in the Award).”
Given his conclusion that both the award and the Kuwaiti judgment were fabrications, Butcher J set aside the order entering judgment against the Defendants in the terms of the purported “award”. He concluded (at para 52) that
“The result of this decision is that there are a considerable number of unanswered, but serious, questions, and in particular as to who was responsible for the fabrications which I have found to have been made, and whether there is culpability (and if any whose) as to the way in which the application for permission to enforce the purported Award was presented to the court. Those are matters which are likely to require investigation hereafter.”
In this first episode, Lucy and Kiran ask ‘what’s the problem?’ and cover a number of issues including gendered assumptions and stereotypes, pressure at the Bar, equal pay, and the fair allocation of work.
Nicaragua has filed an application to the International Court of Justice instituting proceedings against Germany for alleged violations of its obligations under the Genocide Convention and other norms of international law in relation to the Gaza Strip. Nicaragua’s application argues that by providing political, financial and military support to Israel and withdrawing its funding from the UN’s Relief and Works Agency for Palestine (“UNRWA”), Germany “is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide”. The application calls for the ICJ to indicate provisional measures, including that “Germany shall immediately suspend its aid to Israel, in particular its military assistance including military equipment” and that “Germany must reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide”. Germany is one of several countries, including the UK and the United States, which have suspended funding to UNRWA following allegations that some of its staff members were involved in the October 7 Hamas attacks.
In Russia, the human rights activist Orleg Orlov was sentenced to two and a half years in prison after he was found guilty of “repeatedly discrediting” the Russian armed forces. The sentence was ordered at a retrial. Orlov had initially received a 150,000 rouble fine (approximately £1,290) in October 2023. Orlov stated in his closing statement that “[w]e know the real reason why we’re being detained, tried, arrested, sentenced and killed. We are being punished for daring to criticise the authorities. In present-day Russia this is absolutely prohibited.”
In the courts
The High Court of Northern Ireland has disapplied sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”) in a judgment handed down on Wednesday. The applicants in the lead case were relatives of individuals who had been killed during the Troubles and the victim of a shooting.
The court held that sections of the Legacy Act 2023 which provide conditional immunity from prosecution for crimes committed during the Troubles breached Articles 2, 3 and 6 ECHR and were incompatible with Article 2 of the Windsor Framework. Article 2 WF provides that the UK shall ensure that no diminution of a right set out in the Good Friday Agreement occurs as a result of the UK’s withdrawal from the European Union. The court considered that in enacting the immunity provisions, the UK government had acted incompatibly with EU law. It held that this could not have occurred if the UK had remained in the EU, and that the provisions therefore breached Article 2 WF. The court concluded that the immunity provisions should be disapplied [613].
The court made no order in relation to sections of the act which provide for the suspension of criminal investigations into Troubles-era offences and prevent new Troubles-related civil claims being brought. In relation to criminal investigations, the court found that the Legacy Act left sufficient scope for the Independent Commission for Reconciliation and Information Recovery to conduct an effective investigation as required under Articles 2 and 3 ECHR. In relation to the ban on civil proceedings, the court found that this provision did interfere with Article 6 rights, but that it was a lawful interference because it pursued the legitimate aim of promoting reconciliation.
In separate proceedings this week the High Court dismissed a challenge to a coroner’s ruling not to relist the inquest into the death of Patrick Duffy, an IRA man who was shot 14 times by undercover soldiers in Derry in 1978. A fresh inquest had been granted in March 2019 but was subject to various delays and was not relisted because it could not be completed before the 1 May 2024 deadline provided for in the Legacy Act.
This week the International Court of Justice held public hearings on the request for an advisory opinion regarding the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. This is in response to a vote by the United Nations General Assembly to request an advisory opinion on (in the words of the UN General Assembly):
What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
How do the policies and practices of Israel referred to in [the] paragraph…above affect the legal status of the occupation and what are the legal consequences that arise for all states and the United Nations from this status?
In the UK
As the Russia-Ukraine war reached its second anniversary, the Home Office has published a statement of changes to the Immigration Rules closing the Ukraine Family Scheme. This scheme allowed UK residents to sponsor Ukrainian family members to come to the UK. Ukrainians currently in the UK will be able to apply for the Ukraine Extension Scheme, which will provide them with an additional 18 months’ permission to stay in the UK on the expiry of their visa. The Ukraine Extension Scheme will close on 16 May 2024. This means that the only remaining “bespoke” visa for Ukrainians outside the UK will be the Homes for Ukraine Scheme. The statement of changes has reduced the length of the Homes for Ukraine Scheme visa from three years to 18 months. It has also restricted who is eligible to be a sponsor. Previously, to be a sponsor you had to hold at least six months’ permission to stay in the UK from the date of the visa application, now you have to be a British or Irish citizen or have indefinite leave to remain in the UK.
In the courts
Shamima Begum has lost her appeal against the removal of her British citizenship. The Court of Appeal rejected the argument that in depriving Ms Begum of British citizenship, the Home Secretary was in breach of article 4 ECHR (prohibition of slavery and forced labour) by failing to consider that she was a potential victim of trafficking, to protect her from trafficking, to discharge legal obligations owed to potential victims of trafficking. The Home Secretary did not fail to take into account the risk of trafficking as a relevant consideration, and did not fail to consider Ms Begum’s de facto statelessness after the deprivation of her British nationality. The Court of Appeal also rejected arguments based on procedural fairness and breach of public sector equality duty.
Russia’s state prison service released a public statement on Friday reporting that opposition leader and vocal Kremlin critic Alexei Navalny has died in prison. Russian authorities are reportedly refusing to release the body, raising questions about the manner of his death. Navalny was sentenced in 2023 to 19 years imprisonment on a plethora of extremism charges, which he was serving in the Polar Wolf penal colony in the Arctic Circle. Lord Cameron, Foreign Secretary, said to broadcasters at the Munich Security Conference that ‘we should hold Putin accountable for this. And no one should be in any doubt about the dreadful nature of Putin’s regime in Russia after what has just happened’, while UK Security Minister Tom Tugendhat, in a post on X (formerly Twitter), has directly accused Vladimir Putin of murdering Navalny in order to silence him. Multiple judgments have been previously issued by the European Court of Human Rights finding that Navalny’s rights to fair trial, liberty and security, and freedoms of expression and association had been violated by Russian authorities.
This is a rare case involving the welfare of non-human animals balanced against the rights in the Convention. In the Court’s own words, “this is the first time that the Court has had to rule on the question of whether the protection of animal welfare can be linked to one of the aims referred to in paragraph 2 of the Article 9 of the Convention.” Thank you to Joshua Rozenberg for alerting me to this important ruling.
In his Concurring Opinion Judge Yüksel gives a useful brief description of what was at stake here.
“The case concerns decrees promulgated under Belgian domestic law which require, in the interests of animal welfare, stunning prior to the slaughter of animals. The applicants, who are of Muslim or Jewish faith, claim that the prior stunning in question would prevent them from carrying out ritual slaughter in accordance with the precepts of their religion, which would constitute an interference and therefore a violation of their right to respect for their religion within the meaning of Article 9 of the Convention
… At the heart of the case are therefore two questions: i) whether considerations linked to animal welfare can constitute a legitimate aim for the purposes of Article 9 § 2 of the Convention and ii) whether the contested measure did not actually go beyond what is necessary in a democratic society.” [para 3 of the Opinion]
The full judgment is available only in French. A summary of the salient points follows.
The proposed laws under attack
The slaughter of food animals without prior stunning has been banned in a number of countries signatory to the Convention, in the interests of animal welfare. However, both Jewish and Islamic rituals require maximum bleeding of the animal for the resultant carcass to satisfy the requirements of religious laws. Moreover, both rituals require the animal to be healthy and in good condition at the time of slaughter, and to die as a result of blood loss. But scientific research has shown that the fear that stunning would have a negative impact on bleeding is unfounded. “Electronarcosis” (see image above) is a reversible (non-lethal) stunning method that is possible for some smaller species of food animals (pigs, sheep and goats). This means that if the throat is cut immediately after this stunning method, the animal has indeed died solely of blood loss.
The Home Office has announced its intention to create new offences relating to actions taken by attendees at protests. The plans include making it an offence to possess flares or pyrotechnics at a protest, to wear a face covering at a protest, and to climb on war memorials. The changes will be added as amendments to the Criminal Justice Bill. The Home Office has emphasised that the new rules are not a blanket ban on face coverings, and only apply where the protester’s intention is to conceal their identity. Police officers already have the power to order a person to remove any item which the officer reasonably believe is being worn wholly or mainly for the purpose of concealing their identity. The changes will mean that a protestor who flouts such an order could be subject to a £1,000 fine or a one-month custodial sentence. The Home Office also added their intention to amend the law to prevent protestors from “using the excuse of protest to avoid prosecution” for offences such as criminal damage.
In international news
Israeli Prime Minister Benjamin Netanyahu has ordered the evacuation of civilians from the city of Rafah in southern Gaza ahead of an anticipated offensive operation. Rafah had a pre-war population of approximately 280,000 people and is now believed to be sheltering an additional 1.4 million Palestinians, making it home to over half the population of Gaza. The plans have attracted widespread international criticism. US President Joe Biden said that Israel should not conduct a military operation in Rafah without a “credible and executable” plan to protect civilians. Irish Minister for Foreign Affairs Micheál Martin went further, stating that a military operation would “entail grave violations of international humanitarian law” and that the evacuation order “risks mass forced displacement”. Netanyahu has said that the offensive is necessary to achieve Israel’s strategic goal of eliminating Hamas and that the IDF will pursue a “combined plan for evacuating the population and destroying the [Hamas] battalions”.
In the Courts
On 5th February the Employment Tribunal handed down judgment in David Miller v University of Bristol. The Claimant had been dismissed from his position at the University following comments he made which included his view that Zionism is a “racist, violent, imperialist ideology premised on ethnic cleansing” which “has no place in any society”. The Tribunal held that the Claimant’s anti-Zionist beliefs constitute a protected philosophical belief under the Equality Act 2010. The Tribunal concluded that the University’s decision to dismiss the Claimant was a disproportionate interference with his Article 9 and 10 rights to freedom of conscience and freedom of speech, and that his dismissal was unfair and wrongful. The Tribunal emphasised that the Claimant’s views were worthy of respect in a democratic society because he was not fundamentally opposed to the idea of Jewish self-determination, but rather to “the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population”, and because he did not support violence as a means of opposing Zionism [237]. The Tribunal reduced the Claimant’s compensatory award for unfair dismissal by 50% because his behaviour in commenting on individuals students and student societies was deemed culpable and blameworthy and had contributed to his dismissal [472].
In a significant ruling, the Court of Appeal has quashed the conviction of the appellant for an offence contrary to Section 1 of the Malicious Communications Act 1988 based on an email written to local councillors in a political dispute. In R v Casserly [2024] EWCA Crim 25, The Court gave guidance on – and placed emphasis on the importance of – directing juries on the right to free speech under Article 10 ECHR. The appeal considered the interaction between s 1 of the Malicious Communications Act 1988 and Article 10.
The Divisional Court (Lady Justice Laing and Mrs Justice Heather Williams) confirmed in R (Castellucii) v The Gender Recognition Panel and the Minister for Women and Equalities [2024] EWHC 54 (Admin) that the Gender Recognition Panel has no power under the Gender Recognition Act 2004 to issue a Gender Recognition Certificate that records an applicant’s gender as ‘non-binary’. It also held that this did not breach any of the Claimant’s rights under Article 14 of the European Convention of Human Rights.
The Claimant is referred to as ‘them’ and ‘their’ in the judgment and the Court also refers to ‘male’ and ‘female’ as gender rather than sex for the purposes of the GRA. Both are adopted in this note.
The government has confirmed the dateson which various significant changes to the Immigration Rules will come into effect:
On 14 March, the Immigration Rules will increase the minimum income for Family visas from £18,600 to £29,000. This will come into force from 11 April. The threshold will be increased in stages to £34,500 and finally to £38,700 by early 2025.
On 19 February, the Immigration Rules will be changed to remove the right for care workers and senior care workers to bring dependants (partners and children). This change will come into force on 11 March 2024.
On 14 March, the Immigration Rules will be changed to increase the earnings thresholds for those arriving on the Skilled Worker route, with the minimum threshold raising from £26,200 to £38,700. This change will come into force on 4 April 2024.
On 14 March, the Immigration Rules will be changed to remove the 20% going rate discount for occupations on the Shortage Occupation List, and temporarily add further occupations to the new Immigration Salary List, which will replace the current Shortage Occupation List.
The Home Affairs Select Committee has sent a letter regarding the living conditions aboard the Bibby Stockholm to Michael Tomlinson KC MP, the Minister for Countering Illegal Migration. The Bibby Stockholm is a barge used to accommodate asylum seekers awaiting decisions regarding their asylum claims.
The letter comes after the Committee members’ visit to the barge. It mentions, among other issues, that the inhabitants share cabins designed for one person with up to six people. The inhabitants reported limited access to GPs, mental health services, religious services for Muslims, and the local communities in Portland and the surrounding areas.
In international news:
The Secretary-General of the UN, António Guterres has appealed to countries which have suspended funding the UN agency assisting Palestinian refugees (UNRWA) to reconsider their decisions. Countries including the USA, UK, Germany, Italy, the Netherlands and others suspended funding after allegations emerged that 12 employees of the agency participated in the 07 October attack on Israeli civilians. The news agency Reuters carried a news report on allegations of involvement in 07/10 attack.
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.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
This blog is run by
Recent comments