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On
Friday, the UK left the EU. In the midst of jubilation, despair, and relief,
questions remain about the human rights implications this decision may have, as
we continue to negotiate the precise terms of our exit. Clause 5 of the European
Union (Withdrawal) Act 2018 already confirmed that the EU Charter of
Fundamental Rights would not be included in ‘retained’ EU legislation after
Brexit. Now, the Conservatives may be able to move forward with their long-term
commitment to repeal the Human Rights Act 1998 and introduce a ‘British Bill of
Rights’. Boris Johnson’s manifesto promise was to ‘update’ the legislation, as
part of a programme of constitutional reform, looking at “the relationship between the government,
parliament and the courts.”
As the coronavirus continues to provoke anxiety,
China has come in for criticism for its handling of the epidemic, in the New York Times and on Human Rights Watch. After concealing new cases in Wuhan in early January, there has been
censorship of online posts about the epidemic, bans on speaking to the media
and journalists, and the government has been interrogating web users accused of
‘spreading rumours’ and ‘publishing and spreading untrue information
online’.
Stratas JA has said, “Administrative law matters”. Every individual’s life is affected, in some cases profoundly, by administrative decisions. Judicial oversight of administrative decisions engages questions of importance and sensitivity in democracies where separation of powers is an intrinsic principle. In the view of the Supreme Court of Canada, the act of judicial review by a court is a constitutional function that ensures executive power is exercised according to the rule of law. At the same time, review must be exercised without undermining the democratic legitimacy of the executive or the intention of the legislature. The standards applied by courts to determining the lawfulness of administrative decisions are therefore of central importance to the proper functioning of our country.
Disclaimer here, to apply to this and the next post. The views expressed here are purely in a personal capacity, as I am now counsel with the UK charity, Justice.
This and the following post will consider what a ‘reasonableness’ standard of review means in the contexts of Canadian and UK administrative law. The standard has recently been given new emphasis by the handing down of the judgment of the Supreme Court of Canada in Vavilov [2019] SCC 65 in which the court restated its conception of reasonableness and how a decision should be analysed in light of that standard.
In the UK, a series of cases has revealed that jurisdiction’s Supreme Court grappling with reasonableness primarily in its relationship with the other standard of review, proportionality. As this essay will show, both Canadian and UK courts have struggled ever since the advent of judicial oversight of administrative decisions to formulate a standard of reasonableness which ensures unlawful decisions do not stand but does not allow the court to remake the decision that is the proper remit of the administrator.
In AC (Algeria) v Secretary of State for the Home Department[2020] EWCA Civ 36, the Court of Appeal gave a trenchant warning that once it ceases to be lawful to detain an individual, the ‘grace period’ allowed within which to make arrangements for release can only be a short period. Moreover, the reasons for which any such grace period is required will be be closely scrutinised by the courts.
Background
Unsurprisingly, there continue to be a very significant number of judicial review and county court claims for unlawful detention brought by current and former immigration detainees. What is perhaps more interesting is that despite the relatively well-understood law governing the lawfulness of immigration detention the precise legal limits of the Home Secretary’s power to detain for immigration purposes continue to be tested and developed.
In the latest episode on Law Pod UK, Emma-Louise Fenelon talks to Shaheen Rahman QC about Samira Ahmed’s decisive Employment Tribunal victory, handed down on 10 January 2020.
The US Supreme Court has had its home here since 1935
Last autumn I was privileged to spend six weeks in the United States as a scholar on the Pegasus Programme. This gave me the opportunity to learn a great deal about the similarities and contrasts between our legal systems, as well as the latest developments across the Atlantic.
In this piece I will tell you about what I learned about the US Supreme Court — its history, its role and what the Presidency of Donald Trump may mean for its future.
The Supreme Court
The Supreme Court is the highest court in the United States and acts as guarantor and arbiter of the Constitution. It has the power to establish (and extend) the content of constitutional rights and to strike down not only government acts, but also primary legislation incompatible with those rights.
In this article,Uzay Yasar Aysev and Wayne Jordash QC of Global Rights Compliance analyse the two cases which have been brought in the international courts relating to the persecution of the Rohingya people by the Myanmar authorities.
Readers may want to read the first article about this topic published on the Blog here.
On 11 November 2019, Republic of The Gambia initiated a case against Myanmar before the International Court of Justice (‘ICJ’ or the ‘Court’), alleging that the atrocities committed against the Rohingya people during “clearance operations” from around October 2016 violated the Genocide Convention (‘Convention’).
In
its application, The Gambia requested the Court to instate six provisional
measures. Provisional measures are ordered to safeguard the relevant, plausible
rights of the Parties that risk being extinguished before the Court determines the
merits of the case (LaGrand Case, para. 102). The Gambia contended that the Rohingya were facing threats
to their existence and had to be protected from Myanmar’s genocidal intent.
On 23 January 2020, the Court issued an Order granting four of the six provisional measures requested. Myanmar was ordered to:
Take all
measures within its power to prevent the commission of genocide against the
Rohingya;
Ensure that its
military, any irregular armed units which may be directed or supported by it,
any organizations and persons which may be subject to its control direction or
influence, do not commit, attempt or conspire to commit genocide, or incite or
be complicit in the commission of genocide against the Rohingya;
Take effective
measures to prevent the destruction and ensure the preservation of evidence
related to allegations of genocide; and
Submit a report to the Court on all measures taken to
give effect to the provisional measures order within four months and thereafter
every six months, until the Court renders a final decision.
Civil liberties groups have responded with opprobrium to the Metropolitan Police’s plan to begin using live facial recognition (LFR) cameras on London’s streets as of next month. Purportedly, the Met’s technology compares the structure of faces to those recorded in a database of suspects, and alerts officers on the scene if a match is found. If no alert is generated, the image is deleted. The Met has claimed that the system is 70% effective at spotting wanted suspects and only produced a false identification in one in a thousand cases. In addition, it claimed 80% of people surveyed backed the move.
Following his
headline-grabbing finding on 3rd January
2020 that “ethical veganism is a philosophical belief which qualifies as a
protected belief within the meaning of section 10 of The Equality Act 2010”, Norwich Employment
Tribunal Judge Postle has now provided his full determination.
Background
The judgment was handed down following a preliminary hearing in a matter between the Claimant, Mr Jordi Casamitjana Costa, and his former employer, The League Against Cruel Sports. The facts of the case are set out in more detail in an earlier article from earlier this month.
In short, the Claimant is pursing complaints, inter alia, of indirect discrimination, direct discrimination or harassment and victimisation by reference to his belief in “ethical veganism”. “Ethical veganism”, according to the Vegan Society,it is a philosophy and way of life which
seeks to exclude, as far as is possible and practicable, all forms of exploitation of, and cruelty to, animals for food, clothing or any other purpose.
Since at least the 16th centurythe personification of Justice has been depicted wearing a blindfold to represent impartiality.
Angus McCullough QC is a barrister at 1 Crown Office Row with experience of acting as a Special Advocate in closed proceedings since 2002.
The Government has still not implemented the review of Closed Procedures that Parliament had dictated should take place when passing the Justice and Security Act 2013. A review is required to cover the first five years after the Act came into force, and should have been completed “as soon as reasonably practicable” thereafter. That period expired in June 2018, and there are still no signs of a reviewer being appointed.
Readers familiar with closed procedures and their background may wish to skip the first half of this post.
‘Secret Justice’ is a deliberate oxymoron, used by some legal commentators as a term for Closed Material Procedures (CMPs). Justice, of course should generally be open and transparent, not secret. The principle of open justice dates back centuries, and the law reports are full of reiterations of its importance. Here’s one example, this from Lord Woolf in R v Legal Aid Board, ex p Kaim Todner [1999] QB 966:
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
An equally fundamental principle of fairness in legal proceedings is that a party should know the evidence and case against them. This has even been given a Latin epithet (audi alteram partem). But you don’t need to be a scholar of either classics or law to appreciate that being aware of the material that the other side is putting before the court, and having the opportunity to challenge and answer it, is a cardinal feature of fair legal proceedings. The personification of Justice (see picture) is blindfolded, to represent her impartiality; but litigants are expected to have an unimpaired view of the proceedings.
The case is significant for two reasons. First, in recent years there has been a spate of local authorities applying for injunctions which prevent Romany and Travellers setting up unauthorised encampments in their boroughs. There are now 38 of these injunctions nationwide.
Despite the clear effect on Romany and Travellers of these injunctions, this case was the first time the Romany and Traveller community was represented at a hearing where an injunction was sought. Further, it is the first case where an injunction of this sort has been considered by the Court of Appeal.
Lord Justice Coulson, delivering the leading judgment, gives clear guidance for local authorities, significantly limiting the scope for use of injunctions against the Romany and Traveller community in the future.
Second, in its judgment, the Court of Appeal reaffirms the centrality of a nomadic lifestyle to Romany and Traveller tradition and culture.
Drawing on European case law, the court was clear that measures which affect the ability of the community to stop their caravans have profound human rights implications. Not only do they impact upon the rights of Romany and Travellers to respect for their home, they also affect their ability to maintain their identity and to lead their private and family life in accordance with tradition. The European Court of Human Rights has found an emerging international consensus, that recognises the special needs of minority communities, and the obligation to protect their security, identity and lifestyle.
The Claimant’s belief in Forstater – that “sex is biologically immutable” — denied trans people their legal right to be recognised as the sex they had transitioned to even when they had obtained a Gender Recognition Certificate. This right has been recognised for over a decade by the European Convention on Human Rights (“the Convention”) and by domestic law in the Gender Recognition Act 2004. The Claimant’s belief — in the words of Judge Tayler — also violated the dignity of trans people and created an “intimidating, hostile, degrading, humiliating or offensive environment” for them.
Regrettably such beliefs are not as uncommon in the UK as one would hope. In fact, similar beliefs are likely to be shared by others (albeit some of their views may be less extreme than the Claimant’s in Forstater). And this raises the question – what effect might such beliefs be having on the lives of trans people in the UK?
Last month, the Central London Employment Tribunal held that a woman’s belief that “sex is biologically immutable” was not protected as a philosophical belief under the Equality Act 2010.
This finding sparked a great media frenzy, with proponents of the ruling arguing that it was a victory for trans rights whilst critics – including JK Rowling — argued that it was a defeat for freedom of expression.
Such questions lead us well to an analysis of the Claimant’s belief in Forstater, which will illustrate how philosophical beliefs are generally defined and assessed in the courts.
Tributes left on London Bridge following the terror attack in June 2017in which eight people were killed and many more injured.
The Home Office is proposing to legislate for a new criminal offence relating to the “possession of the most serious material glorifying or encouraging terrorism”.
This follows a suggestion made by the Chief Coroner, HHJ Mark Lucraft QC, in his report concerning the 2017 London Bridge terrorist attack. In his view, the lack of such an offence may sometimes prevent counter-terror police taking disruptive action against terror suspects, even when the extremist propaganda they possess is of the most offensive and shocking character. That propaganda might include, for instance, footage of sadistic violence.
The criminal law is ultimately concerned with the prevention of harm. The normative classification of harm with a political dimension, however, engages the right to freedom of thought under Article 10 of the European Convention on Human Rights, as protected under the Human Rights Act. To ensure a proper balance is struck between protecting the public and safeguarding civil liberties, any new offence ought to satisfy a three-limb test:
It must provide a specific definition for the “most serious” category of materials which “glorify or encourage” terrorism. This should be supplemented with empirical guidance to ensure a high and objective threshold is set for criminal sanction.
The mens rea requirement for the offence must be deliberate possession of harmful material, with the knowledge that said material glorifies or encourages terrorism. The standard of liability must be one of intention rather than recklessness or negligence. This would ensure that only harmful purposes are penalised.
It must establish statutory defences to such possession on grounds of reasonable excuse and/or working in the public interest.
The BBC today published a report following a Freedom of Information request that the NHS “faces paying out £4.3 billion in legal fees to settle outstanding claims in clinical negligence. Read the report here. The vast inflation in damages awards in clinical negligence claims means that the cost to the health services is producing great concern in those who have to address the financial future of the NHS. This is particularly an issue with birth disasters where the life expectancy of the child, however badly damaged, is lengthy and therefore ongoing costs, notably care costs, stretch long into the future. In May 2019, former Court of Appeal judge Rupert Jackson proposed a series of solutions to this problem, including replacing the principle of full compensation with a system of tariffs . This may be along the lines of the current scheme operated by the Criminal Injury Compensation Authority . He also called for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’. You can read Sir Rupert Jackson’s full paper here:
In this episode I’ve brought together two members of 1 Crown Office Row who have spent their professional lives both claiming against and defending the NHS. James Badenoch QC, now retired, maintains that the existence of these claims is justified by the pressure to improve clinical practice.
David Hart QC provides us with the details of the very considerable figures paid out recently by the NHS in settlements and awards. The source of these figures and others can be found here:
So what are the solutions – or what, some might say, are the threats – to the principle of full compensation in the medical context? Do listen to this discussion between two experts in the field.
Protestors demonstrate outside the Famagusta district court in Paralimni, Cyprus, at the trial of a 19-year old girl convicted of public mischief after withdrawing a rape allegation in contested circumstances. Credit: The Guardian.
A quick look at the “recent decisions” page of the British and Irish Legal Information Institute’s (BAILII) website did not, at first glance, give this author much cause for optimism in the preparation of this blog. However, a more careful reflection on the week’s events provided a plethora of material to consider, notwithstanding the absence of any recent decisions from the Supreme Court or civil Court of Appeal.
When the domestic courts go on leave, it falls to their European counterparts to pick up the slack and churn out judgments to help keep us occupied. It was with surprise however, that a hopeful scroll through the week’s European Court of Human Rights (ECtHR) decisions revealed not only the familiar names paying a visit to Strasbourg (ahem, Russia), but also that our own United Kingdom had put in an appearance at Europe’s legal naughty corner. Some further creative searching on BAILII revealed that the UK paid nine visits to the ECtHR last year, compared to Russia’s one-hundred and seventy-three.
In Yam v United Kingdom [2020] ECHR 41, a former MI6 informant and Chinese dissident failed in his attempt to have the ECtHR rule that his 2009 murder trial had been prejudiced by virtue of parts of it being held in camera, rather than in public. The applicant had relied upon the provisions of Article 6 of the European Convention on Human Rights, specifically 6(1) and 6(3)(d):
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … [T]he press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
The court held however that these provisions did not prohibit domestic courts from derogating from public hearings where special circumstances justified it. The measures adopted during his trial had met the requirement of necessity. Furthermore, the ECtHR considered itself poorly equipped to challenge national authorities’ judgement when assessing national security concerns. The court held that the trial judge had carefully balanced the need for openness against the national security interests at stake, and in so doing, had limited the private aspects of the trial to the minimum possible. Through such an analysis, he had satisfied himself that a fair trial was still possible. Consequently, there was no thus disadvantage to the applicant, who had suffered no breach of his Article 6 rights.
In other international developments, lawyers acting for a British 19-year-old in Cyprus filed an appeal against her suspended sentence for public mischief and fabricating an “imaginary crime”. The woman involved had initially made accusations of gang-rape against 12 Israeli youths before retracting her accusation in circumstances now disputed. Her defence have suggested that not only was she suffering from PTSD at the time her claims were withdrawn, but also that she was in fear for her life. The signed confession was in Greek rather than English and made after several hours of unrecorded questioning by detectives in the absence of a lawyer. Her legal team seek to have her conviction overturned.
Returning to purely domestic considerations, the week also saw the announcement that judicial sentencing remarks in high profile cases will in future be broadcast on television from Crown Courts. The move was lauded by broadcasters and the Lord Chief Justice as promoting transparency and as an aid to public understanding of the criminal justice system.
The move was not however uncontroversial. Concerns were raised by the Bar Council of England and Wales that the broadcast of sentencing remarks in the absence of fuller details of the trial could lead to a failure on behalf of viewers to appreciate why a particular sentence has been passed. They expressed anxiety that the audience will be deprived of relevant context, such as mitigation. Further fears included that increased disclosure of judges to the public eye could expose them to undue attack and criticism in circumstances where a given sentence proves unpopular. However regardless of the merits, the development was successful in affording current BBC radio 4 listeners one of the funnier moments so far of 2020, when Evan Davis introduced American lawyer Robert Shapiro to debate the topic with Lord Sumption, only to find that they had inadvertently invited an American political adviser with the same name to the PM show instead (listen here).
The week also saw:
The Mail of Sunday file its defence at the High Court on Tuesday in response to a claim brought by the Duchess of Sussex for breach of copyright, invasion of privacy and misuse of personal data. The case concerns excerpts of correspondence between the Duchess and her father published by the newspaper.
The ECHR deliver judgment in favour of nine Russians detained pending trial for as long as 7 years, some of whom remain incarcerated, in circumstances characterised by fragile reasoning of the courts and an absence of due process – DIGAY AND OTHERS v. RUSSIA [2020] ECHR 54.
The entire Russian government resign in a move thought likely to pave the way for amendments to the country’s constitution favourable to current leader Vladimir Putin. The proposed reforms would strengthen the role of the Prime Minister and weaken that of the President. Mr Putin is constitutionally barred from standing again for the presidency but could transition into one of the roles in which the proposed constitutional changes are likely to vest more power. The reforms would also restrict the applicability of international law in Russia to circumstances where it did not contradict the constitution or restrict people’s rights and freedoms, a measure framed as one to increase national sovereignty.
The High Court refuse permission to appeal in a case brought by a soldier, who contracted Q-fever whilst serving in Afghanistan, against the Ministry of Defence (MOD). The claimant soldier had alleged failings on behalf of the MOD in not providing him with adequate chemoprophylaxis to protect him from the disease – Bass v Ministry of Defence [2020] EWHC 36 (QB).
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