The Weekly Round-Up: Nazanin returns, P&O face protests, and Met “likely” racist

21 March 2022 by

In the news: 

British-Iranian Nazanin Zaghari-Ratcliffe returned to the UK on Thursday, after being imprisoned in Iran for spying, which she and the British government deny. Mrs Zaghari-Ratcliffe was originally arrested in April 2016 and sentenced to five years in prison for alleged plots to overthrow the Iranian government, which she also denies. In April 2021 she was sentenced to another year in jail for spying. Attempts by the British government, including the Prime Minister, to secure her release had previously failed but an improving UK-Iran relationship, including the settlement of a £400m debt Iran claimed the UK owed, may have contributed to her release last week. Several more dual nationals remain imprisoned in Iran, including Iranian-British-American wildlife conservationist Morad Tahbaz, charged with “co-operating with the hostile state of the US”. 


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The European Response to Conflict in Ukraine: a Legal Analysis. Summarised on Law Pod UK

17 March 2022 by

Episode 161: Just days before Russia resigned from the Council of Europe, the Centre of European Law at King’s College London held a rapid reaction seminar considering what role can EU law play in the current conflict in Ukraine. The distinguished panel, chaired by King’s College Reader in Law Oana Stefan, included Professor Takis Tridimas, Professor of European Law at KCL, Roman Petrov, Head of the International and European Law Department at the National University of Kyiv-Mohyla, and others. We are very grateful to King’s College for allowing Law Pod UK to summarise the main points made by the experts and raise the question: does EU law present any potential way of this quagmire?

The Dickson Poon School of Law, King’s College London, is recognised as one of the best law schools in the world. It recently launched its MSc Law and Professional Practice.

Anonymity: politics, polarisation and the public interest

15 March 2022 by

anonymity21
Is anonymity incompatible with the public interest?

In the politically-charged and at times feverish aftermath of the Brexit referendum, Gina Miller became a “magnet for hatred” for exercising her right of access to courts and winning two landmark public law cases against the UK Government. The magnitude and ferocity of abuse directed at Gina Miller made those who followed in her footsteps wary enough to seek anonymity. In Yalland and others v Brexit Secretary, 4 claimants were granted anonymity in relation to a judicial review claim concerning UK participation in the European Economic Area Agreement.

Anonymity in Northern Ireland is not uncommon where some part of a claimant’s deeply personal life or history play a role in the determination of their claim. JR80 for example involved a claimant who had suffered egregious institutional abuse as a child, while JR123 involved a claimant with ancient convictions which disproportionately impacted his life.

In JR181(3)’s application for judicial review, however, anonymity was ordered to continue in the face of a politically-charged atmosphere reminiscent of the worst of the Brexit era.


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Victory for claimants in Sarah Everard vigil case

14 March 2022 by

Image: Flickr

Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party) [2022] EWHC 527

A year after the kidnap, rape and murder of Sarah Everard by serving Metropolitan Police officer Wayne Couzens, the Divisional Court has given its judgment on the MPS response to the proposed vigil for Ms Everard organised by #ReclaimTheseStreets on Clapham Common, near where she was last seen alive.

The aim of the vigil was to highlight risks to women’s safety and to campaign for a change in attitudes and responses to violence against women. However, it was at a time when Regulations imposed during the Covid-19 pandemic prohibited a gathering of more than 30 persons in a public outdoor place in a Tier 4 area such as London.

MPS would not sanction the plan for the vigil and it was cancelled (as discussed here). The Claimants alleged that this was because the Met had unlawfully thwarted the plan. The Court agreed.

The judgment is a comprehensive victory for the Claimants, hailed by them as a “victory for women” and an “absolute vindication”. It is also a landmark decision in the context of debate as to the impact of the Covid regulations on the fundamental rights and freedoms enshrined in primary legislation pursuant to the HRA. It contains a granular analysis of the requirements of the proportionality assessment to be undertaken in such cases. It has particular resonance given controversial changes to the way police are able to control protests currently being debated in parliament as part of the Police, Crime, Sentencing and Courts Bill.


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The Weekly Round-Up: Dirty money, religious education and victory for Everard campaigners

14 March 2022 by

Historic portrait of Grosvenor Square in Mayfair

In the news:

On Monday, the Independent reported on the words of the Minister for Brexit Opportunities and Government Efficiency of the United Kingdom, Jacob Rees-Mogg. Having earlier tweeted a graph demonstrating that the UK had sanctioned a higher amount of Russian-owned assets in pound-terms than the US or the EU, Labour and Lib Dem politicians responded by pointing out that the graph better demonstrated the UK’s role in storing and laundering money for highly questionable individuals from Russia and elsewhere. Despite the calls for transparency from, for instance, the president of Estonia long before the invasion of Ukraine, the UK and its territories have remained a bastion for billions of pounds of poorly identified foreign wealth, with large numbers of expensive houses in central London standing empty while house prices soar and the number of homeless grows.  


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Law Pod UK new episode: Can we drain Putin’s swamp in Londongrad?

10 March 2022 by

Barely two weeks after Russian tanks rolled into Ukraine, the Economic Crime Bill was rushed through the House of Commons. This one of the measures this country has taken to cleanse itself of “dirty money” from Russia and other countries by setting up a register of overseas entities and their beneficial owners and requiring overseas entities who own land to disclose their identities. In Episode 160 Rosalind English talks to Oliver Bullough, a journalist who has lived and worked throughout the former Soviet Union. His latest book, Butler to the World, makes a forceful point about how Britain has become a servant to all comers as long as they pay enough. Not just the banks and estate agents; lawyers are complicit too, in his view:

We have essentially given their oligarchs a back door to a fair dispute resolution process that they can deprive their fellow citizens of

Will these new legislative measures work? Only if our enforcement agencies are properly resourced, says Bullough. Just four “unexplained wealth orders” have been made since they were introduced by the Teresa May government in 2018. Perhaps it takes a crisis like the current one to give this legislation some force.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

Law Pod UK new episode

7 March 2022 by

Human Rights in a Turbulent Era with Gráinne de Búrca
In Episode 159, Emma-Louise Fenelon talks to Gráinne de Búrca about her recent book, Reframing Human Rights in a Turbulent Era. The book is available to purchase here.

Law Pod UK is grateful to Rafe Jennings for his assistance in the preparation for this episode.
Lord Carnwath’s talk can be viewed here.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

The Weekly Round-Up: How far should the UK go to help Ukrainian refugees?

7 March 2022 by

In the news:

Russia’s invasion of Ukraine has dominated the news since the conflict began. The human rights implications of the conflict will be far reaching and devastating, and this Weekly Round-Up will no doubt examine the impact of events as they unfold. This week, our focus is on the UK government’s approach to Ukrainian refugees. The Home Office is still insisting that only those refugees with family ties to the UK will be able to satisfy visa requirements to enter through the ‘Ukraine Family Scheme’. Those who successfully use this route will have the right to work and to claim benefits. However, they will not be able to access other assistance, such as accommodation, as was offered to refugees from Afghanistan, for example, because the Home Office assumes they will be offered support by UK relatives. This approach has been widely criticised as unduly restrictive, given that many European countries have dropped their visa requirements altogether so as to enable a greater number of Ukrainians quickly to reach safety. The Home Secretary rejected this more permissive policy earlier this week, arguing that security and biometric checks imposed by the visa system were essential to prevent extremists and Russian agents entering the UK. But with one million refugees reportedly having fled their homes already, and four million more predicted, many campaigners have pointed out that a fast route to safety is urgently needed. On Friday, the Home Office stated that they were working on an ‘unlimited sponsorship route’ which would not be dependant on family ties, but it remains unclear when this will be launched, or what support it will offer.

In other news:

  • The House of Lords has defeated the controversial Nationality and Borders Bill for the fourth time, removing clause 11. This measure would have divided refugees into two groups depending on how they arrived in the UK, potentially excluding those who took a route outside the law. For example, those who arrived on small boats through the Channel could have their asylum application automatically ruled inadmissible, face up to four years in prison, be banned from accessing public funds, and have family members banned from joining them. Peers had previously struck out a clause allowing the government to strip individuals of their British citizenship without warning. The changes made by the Lords will now be sent back to the Commons, who can either accept or amend them. 
  • A leaked report has suggested that the Environment Agency has only prosecuted 7% of the serious incidents of pollution investigated between 2016 and 2020. Agents within the organisation prepared case papers for 495 serious incidents in the period, all of which they recommended for prosecution. However, only 35 cases actually reached court after managers intervened. The others were either dropped entirely, or dealt with using less serious sanctions such as a warning letter. These were all incidents of the most serious form of waste pollution, for example, those involving illegal discharges of raw sewage, and some incidents were known to be perpetrated by organised crime groups. Workers within the Agency have linked the lack of action to the severe cuts to the Agency’s resources. The Environment Agency responded to the report by stating that they follow the Code for Crown Prosecutors, which states that prosecution should only be pursued where there is a realistic prospect of a successful conviction, and when it is in the public interest.
  • The Department of Work and Pensions (DWP) has been sent a letter before action by the Greater Manchester Coalition of Disabled People (GMCDP) and non-profit legal group Foxglove, who claim that the department’s use of a computer algorithm to decide who should be investigated for fraud unlawfully discriminates against disabled people. The two groups claim that there is a lack of transparency about how the algorithm works, and called on the DWP to explain how it prevents discrimination in its use of the algorithm. The DWP responded by saying that human agents always review cases of suspected fraud, and thus the effects of the algorithm were being carefully monitored. The government’s statement on Transparency in Automated Decision making can be found here.

In the courts:

  • U3 v The Secretary Of State for the Home Department [2022]: The Special Immigration Appeals Commission (SIAC) dismissed an appeal by U3, a joint British-Moroccan citizen, against the decision of the Home Secretary to remove her British citizenship in 2017, and prevent her entry clearance in 2019. U3’s citizenship was withdrawn because the Home Office determined that her links with ISIL in Syria implied that she posed a national security risk. In 2019, U3’s children were repatriated to the UK, and U3 sought entry clearance to be reunited with her children, relying on her Article 8 right to respect for her private and family life. Entry clearance was denied, with the Home Secretary claiming that her Article 8 rights were not engaged, and even if they were, her separation from her children was proportionate to the risk she presented to national security. The key issues in this appeal were as follows. First, on what grounds could the SIAC interfere with the SSHD’s decision; Second, whether U3 in fact posed a risk to national security, given that if she did, precedent established that the separation from her children was likely to be proportionate. Concerning the first issue, the court found, following Begum, the SIAC can interfere with the SSHD’s decision even where it concerns national security on the usual grounds available for judicial review. Thus if it was shown that the decision was flawed according to the public law standard of review, and the outcome, but for the error, would have been different, the SIAC could reverse the decision. On the second issue, counsel for the Claimant argued that given the accepted factual evidence of the coercive and abusive relationship U3 had with her husband, with whom she travelled to Syria in 2014, her decision to live in an ISIL-controlled part of Syria did not demonstrate that she was ideologically aligned with ISIL, nor that she had become radicalised. However, the court found that the SSHD could rationally find that U3 herself was aligned with ISIL in light of evidence that she left for Turkey of her own accord, and that she had a good knowledge of the ideology of the group and of the atrocities it had committed. Given this finding, the SSDH’s decision was proportionate, and the appeal was dismissed.

On the UKHRB:

Devolved powers and the internal market post-Brexit

3 March 2022 by

R (on the Application of the Counsel General for Wales) v Secretary of State for business, Energy and Industrial Strategy [2022] EWCA Civ 118

The Court of Appeal decision handed down on 9th February 2022 is an important case concerning devolved powers.

The judgement concerns an application for permission to apply for judicial review made by the Counsel General for Wales to seek a declaration in the following terms:

The amendment of Schedule 7B of GoWA by section 54(2) of UKIMA, to add UKIMA to the list of protected enactments, does not amount to a reservation and does not operate so as to prevent the Senedd from legislating on devolved matters in a way that is inconsistent with the mutual recognition principle in UKIMA.

The application was dismissed, and the appellant appealed on the grounds that the Divisional Court was wrong to refuse permission on the grounds of prematurity.


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Human rights and a divorce or civil partnership dissolution statement

28 February 2022 by

Statement as ‘conclusive evidence’

The European Convention 1950 guarantees the right to a fair trial. Everyone knows that. At article 6.1 the Convention says:

Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…. 

What everyone does not know is what is a ‘civil right’. And in the present context – namely divorce of civil partnership dissolution – do you have a right to query the assertion of your spouse or civil partner that your marriage or civil partnership has irretrievably broken down?

The Divorce, Dissolution and Separation Act 2020 simplifies the divorce and civil partnership dissolution process by changing the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove that, there was no longer any need to establish one or more facts: adultery (marriage only), unreasonable behaviour or living apart for varying periods. One, or both, parties can file a statement of irretrievable breakdown. The procedure for this is likely – no commencement date has been confirmed – to be in force from 6 April 2022. All so far so civilised.


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Bloomberg v ZXC – the Supreme Court decides — Aileen McColgan QC

24 February 2022 by

The UKHRB is grateful to Aileen McColgan QC for allowing us to republish her article, which originally appeared on Panoptican, a blog published by the barristers at 11KBW here.

The central question for the Supreme Court in Bloomberg v ZXC [2022] UKSC 5 was, as Lords Hamblen and Stephens put it (with Lord Reeds, Lloyd-Jones and Sales agreeing): “whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”. The short answer was “yes”.

The decision has been greeted with howls of indignation from Bloomberg but more muted responses from other sections of the press; whereas Bloomberg’s editor in chief released an editorial entitled “U.K. Judges Are Helping the Next Robert Maxwell” which stated that the judgment should “frighten every decent journalist in Britain”, the Financial Times and Guardian  were more restrained, pointing out respectively that the decision would have “far-reaching implications for the British media” and would “make it harder for British media outlets to publish information about individuals subject to criminal investigations”. This is no doubt the case, but it is worth noting that the publication which gave rise to this decision was based on a highly confidential letter leaked to Bloomberg and occurred apparently without any consideration of ZXC’s privacy interests.

ZXC, regional CEO of a publicly listed company which operated overseas (“X Ltd”), sued for misuse of private information because of an article concerning X Ltd’s activities in a country for which ZXC’s division was responsible. The activities had been subject to a criminal investigation by a UK law enforcement body (“the UKLEB”) since 2013 and the article was based almost completely on a confidential Letter of Request sent by the UKLEB to the foreign state. ZXC claimed that he had a reasonable expectation of privacy in information published in the Article, in particular in the details of the UKLEB investigation into himself, its assessment of the evidence, the fact that it believed that ZXC had committed specified criminal offences and its explanation of how the evidence it sought would assist its investigation into that suspected offending. ZXC’s application for damages and injunctive relief was upheld at first instance by Nicklin J and £25,000 awarded: [2019] EWHC 970 (QB); [2019] EMLR  20. Bloomberg’s appear was dismissed (see Panopticon post by Robin Hopkins and [2020] EWCA Civ 611; [2021] QB 28.


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Strasbourg Court affirms the importance of anonymity online – Ruaridh Owens

23 February 2022 by

On 7 December 2021, the European Court of Human Rights (the “Court”) published its judgment in Standard Verlagsgesellschaft MBH v Austria (No.3) regarding anonymity online. The Court found that the Austrian courts had violated the applicant’s right to freedom of expression by requiring the applicant to disclose the identities of those who had posted allegedly defamatory comments on its website. The Court’s judgment is a notable development of its case law regarding freedom of expression on the internet. 

Legal and factual background

The applicant is the publisher of the Austrian Der Standard daily newspaper published in print, digitally and online. At the end of each online article, registered users can post comments anonymously. When registering, users are warned that the applicant may disclose their data if required to do so by law. Users also accept the applicant’s Community Guidelines stating that users are responsible for their comments and that personal attacks, threats, abuse, or defamatory statements are prohibited. All comments are screened by a keyword identification programme before they can be posted. The applicant also operates a “notice and take down” system via which users can trigger a manual editorial review of comments by using a “report” button. 


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Join our volunteers!

22 February 2022 by

UK human rights blog

We are looking for 4 volunteers to form our ’rounder-upper’ team, responsible for creating our weekly legal ‘Round Up’ of cases. Each person would rotate so it only involves crafting one post a month. The round-up goes out first thing on a Monday, and consists of a summary of recent authorities and also broader issues which may have an impact on rights e.g. legislative developments, NGO or UN reports, political developments etc. The focus of the article is not to be a general news outlet per se, but to provide an update on important legal news and developments over the past week. The new rounder-up writers will be given assistance and guidance in finding their feet from the editorial team to assist them in the first few weeks in getting to grips with the job.

Please note that applications have now closed.

Examples

Here are some (randomly chosen) examples of recent round-up articles:

Our blog style guide, which although not specific to the round-up itself, is helpful to indicate the style we are looking for.

Benefit to law students

We have found in the past that GDL and other law students find writing the round-up a very useful way to stay on top of legal issues in the field of human rights.  Further, it is an excellent thing to have on the CV and your LinkedIn. It provides the author with a certain level of profile given the blog’s large readership and so is likely to be very helpful to anyone applying for pupillages, particular at chambers with a public law bent.  Many across the legal sector and beyond rely on the blog to keep up with developments in human rights law. In the past, rounder-up writers have tended to be recruited as pupils to very high calibre chambers. Also, former round-up writers are in a good position to ‘graduate’ into becoming contributors to the Blog in due course if they wish.

How to Apply

We are looking for authors who can succinctly but accurately summarise key authorities and other developments.  We are therefore recruiting by asking those interested to send the following to Rosalind English events@1cor.com by 9 am on 4th March 2022. Please include your name in the title of each document. We endeavour to contact every applicant but, due to application numbers, prioritise successful candidates.

  • 250-word summary in Microsoft Word of the case of Secretary of State for the Home Department v NF [2021] EWCA Civ 17 (https://www.bailii.org/ew/cases/EWCA/Civ/2021/17.html). This summary should include a pithy explanation of the result of the case at the outset (do not leave the outcome to the end). We understand that it is challenging to distil a full judgment down into 250 words and are looking for a summary that succeeds in bringing out the key facts, the key legal principles and the fundamental reason(s) that the court decided the case in the way that it did. Any summary which exceeds 250 words will automatically be ineligible. Inclusion of the case name and citation at the start of the entry will not count towards the word limit.
  • CV

Law Pod UK: Latest Episode

21 February 2022 by

“A Decent Death” is the title of an article written by former Court of Appeal judge Stephen Sedley, and published in the London Review of Books, to which Sir Sedley is a frequent contributor.

In Episode 158 of Law Pod UK, Rosalind English considers the points made by Sir Stephen in his erudite and forthright column with Trevor Moore, Chair of the assisted dying campaign My Death, My Decision.

With clips from Sir Stephen’s presentation of his talk, we consider the contradictions in the law which still renders assisted dying a criminal offence, but allowed Coronavirus restrictions to be lifted to enable people to travel to end their lives at Dignitas in Switzerland; the stressful possibility faced by relatives returning from Switzerland that they are at risk of being prosecuted under the 1961 Suicide Act, and the constant buck-passing of reforms to this Act between the courts and Parliament.

As Sir Stephen commented in his talk, the “historical anathema”, of punishing either unsuccessful suicides or their families, lives on in the undifferentiated crime of assisting a person to commit suicide.

The present-day offence fails – signally – to differentiate between the intervener who, out of self-interest or perversion, helps to ensure that a suicide attempt succeeds, and the individual who, out of compassion, gives a rational fellow being the help he or she needs to end a life that has become medically unbearable.

For those of you who have listened to this episode, here is another reflection from Sir Stepen, on the obligation on family members returning from Switzerland, to protect themselves from prosecution under the Suicide Act by reporting themselves to the police.

On self-incrimination, I think there’s possibly more to be said. The senior police officer or crown prosecutor whose desk the case reaches may be personally (even doctrinally) hostile and decide – armed now with a full ‘confession’ given in the hope of clemency under the DPP’s policy – to prosecute. In that event there is no defence of compassion; the jury may have to convict. I find this a terrifying scenario.

Stephen Sedley

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts. Please remember to rate and review us if you like what you hear.

Court of Appeal refuses permission to judicially review infected blood compensation scheme

21 February 2022 by

CN v Secretary of State for Health and Social Care [2022] EWCA Civ 86

Judgment here, hearings here: part 1 and part 2.

In a judgment handed down on 4 February 2022, the Court of Appeal dismissed an appeal for permission to apply for judicial review concerning the lawfulness of the England Infected Blood Support Scheme (EIBSS) (the “Scheme”). The Court of Appeal concluded that the Scheme’s exclusion of those infected with hepatitis B was not discriminatory. In any event, the Secretary of State’s justification for who was to be compensated under the ex gratia Scheme was to be given a wide margin of appreciation by the courts.

Background

CN

The Appellant, CN, suffers from hepatitis B virus (“HBV”) which he alleges he contracted when given blood transfusions on or after 14 April 1989. Consequently, CN has suffered from serious health problems, and was forced to abandon his business to receive medical treatment; he has been reliant on state benefits for the last 13 years. CN is a core participant in the ongoing infected blood inquiry, which was established to examine the circumstances in which NHS patients in the UK were given infected blood and blood products (read more about the Inquiry here).

In 1995, CN issued a civil claim against the NHS and the National Blood Authority (now the NHS Blood and Transplant Service). Despite obtaining expert evidence to the effect that his infection was obtained from infected blood, he had to discontinue his claim when legal aid was withdrawn.

Infected blood and the England Infected Blood Support Scheme (EIBSS)

The Scheme was set up on 1 November 2017, to provide ex gratia support to people historically infected with hepatitis C virus (“HCV”) and/or human immunodeficiency virus (“HIV”). Specifically, the 2017 Directions set out the EIBSS’s purpose as:

a scheme to make payments and provide support in respect of individuals infected with HIV or Hepatitis C (or both) from blood or blood products used by the NHS and to provide support to family members of such individuals.

The Scheme addresses the ongoing social issues concerning those infected and affected by HIV and HCV from unscreened products. The Scheme recognises a moral imperative to compensate those infected with HCV and HIV in circumstances where attempts to allege negligence against the NHS would run into significant difficulties of fault-based liability and evidential issues surrounding the state of scientific knowledge at the time. It also helps families and partners after the death of someone infected, who would otherwise be unable to make a civil claim. 

Those infected with HBV do not fall within the remit of the Scheme. In basic terms, this is because the NHS screened blood and blood products for HBV from the mid 1970s, so the number of patients infected with HBV were low after screening. Within the Scheme, the cut-off date for HCV claims is September 1991, when screening was introduced. For HIV there is no cut-off, but the eligibility criteria make clear that after October 1985, when the NHS screened for HIV, it was very unlikely that HIV would be transmitted through infected blood.


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