In the 1980s the European Commission embarked upon an ambitious scheme to cultivate, on the basis of free movement, the idea of EU citizenship in higher education. Universities have long been seen as places of national citizenship formation. The Erasmus scheme was designed to further the notion of citizenship untethered to the nation state by funding and therefore encouraging student mobility.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.
Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.
The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.
His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.
In Other News….
Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.
Codified constitutions are most commonly adopted following a major schism with the previous order. For example, following an armed uprising such as the American War of Independence or the French Revolution. The sweeping away of the old regime, of necessity, demands the creation of new fundamental principles and rules to organise the State. A codified constitution also presents an opportunity to set out the core values on which the nation can rally around. It is commonly asserted that the lack of such a critical break in UK history since the 17th century explains the absence of a codified constitution.
On Monday last week, the government published its long-awaited white paper on online harms. The paper states that the the government will establish a new statutory duty of care on these companies to ‘take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services’. A new regulator will have formidable powers and sanctions at its disposal to oversee and enforce the fulfilment of this duty.
The document was praised by John Naughton in the Guardian as a global first: the first time the government of a major country has attempted to regulate social media companies. He celebrates the paper’s ‘flexible and, at least to some extent, future-proof’ approach as a savvy first step on the road to online regulation.
Conversely, writing in The Times, Greg Hurst criticised the paper for ducking key questions and deferring decision on controversial decisions, characterising it as ‘an important tactical victory’ for social media platforms eager to evade tighter control. In particular, he noted the paper’s insistence that the regulator’s focus should be on ‘on protecting users from harm, not judging what is true or not’, a distinction he called ‘at best hard to maintain and, at worst, unsustainable.’
Commentators across the political spectrum noted that the paper’s implications for free speech were a source of tension and alarm. The paper identifies disinformation or ‘fake news’ as one of many online harms, and says that social media platforms will be expected to use fact-checking services and take action against disseminators of misinformation. The Spectator’s Toby Young states that the proposals pose ‘an unprecedented threat to free speech and could easily be used to impose a censorious code of conduct on newspapers and magazines’; in The Guardian, Alex Hern warned that the measures might prove ‘dangerous’ by ‘creating a regulator without the power to prevent the worst abuse, but with just enough power to scare away the best innovations.’
The intersection of online activity with freedom of expression was also brought into focus by the expulsion of WikiLeaks founder Julian Assange from the Ecuadorean embassy on Thursday. Mr Assange faces charges of sexual assault and criminal theft of US state secrets, and the possibility of a US prison sentence, after Ecuador revoked his asylum and allowed officers from Scotland Yard to remove him from the premises.
A leading article in the Sunday Times argued that Mr Assange’s fate should be left to the courts. Elsewhere, however, Ed Pilkington focused on the indictment’s ‘potentially devastating effect on the basic acts of journalism’. The attitude of many commentators and advocacy groups can be summed up in these words, from a statement by the Freedom of the Press Foundation: ‘Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested.’
In Other News
On Thursday, Omar al-Bashir, the military officer who took power in Sudan in 1989, was overthrown. Mr Bashir is the subject of an international arrest warrant issued by the International Criminal Court (ICC), which accuses him of organising war crimes and crimes against humanity in Sudan’s western Darfur region. While the Sudanese people have celebrated the toppling of a regime that has overseen decades of brutal repression and a desperate economic crisis, it remains unclear whether the generals behind the military coup intend to hand power over to civilian rule.
In a decision described as a ‘devastating blow for victims’, the ICC has rejected a request to investigate war crimes and crimes against humanity in Afghanistan, citing a lack of cooperation from the US, Afghan authorities and the Taliban.
In the Courts
Miller and Others v The United Kingdom  ECHR 285 (11 April 2019): The applicants complained that under Article 3 of Protocol No. 1 to the Convention that as convicted prisoners in detention they had been subject to a blanket ban on voting in elections. The ECHR unanimously declared the applications admissible, and held that the finding of a violation alone was sufficient satisfaction for the applicants.
Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents)  UKSC 20: The Supreme Court heard a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who allege their health and farming activities have been damaged by toxic emissions from the Nchanga Copper Mine into the waterways upon which they rely for drinking water and crop irrigation. The United Nations has recognised access to clean drinking water as an essential human right; this case also engages Article 6 (the right to a fair trial), Article 1 (the right to the peaceful enjoyment of one’s own property) and potentially Article 2 (the right to life). The court found that England was not the ‘proper place’ for the proceedings. However, since there was a real risk that substantial justice would not be obtainable in a more appropriate foreign jurisdiction, namely Zambia, this finding was academic.
Secretary of State for the Home Department v AB (Jamaica) & Anor  EWCA Civ 661: The Court of Appeal heard two separate appeals brought by the Secretary of State against decisions of the Upper Tribunal, which found that the public interest did not require the removal of either Respondent, on the ground of Article 8 (the right to respect for family life). The court found that AB, a father who saw his son three times a week to assist with homework, had a ‘genuine and subsisting relationship’. AO, a father who was only permitted ‘indirect contact’ with his son, did not. The Secretary of State’s appeal was dismissed in the case of AB and allowed in the case of AO.
On the UKHRB:
Jeremy Hyam QC encourages the GMC and the medical profession to reflect as Dr Bawa Garba, a paediatrician convicted of gross negligence manslaughter in November 2015, returns to work.
It was fitting but tinged with irony, that the GMC itself, in its submissions to recent the MPTS review of Dr Bawa-Garba’s suspension maintained that the ‘appropriate and proportionate sanction’ to reflect her continuing ‘impairment’ of fitness to practice was now a period of conditional registration having regard to Dr Bawa-Garba’s ‘absence from active clinical practice’, and also taking into account the evidence of ‘Dr Bawa-Garba’s positive and continuing remediation to date’.
This after all is the ST6 (a specialist registrar in her 6th
year of post-graduate training) paediatrician who was convicted by a jury on 4
November 2015 of gross negligence manslaughter, and given a suspended sentence
of imprisonment by the Judge trying her case. The doctor who – given her
suspended sentence, her undisputed insight and reflective learning from past
events, and the support of her employing Trust was initially suspended rather
than erased by the MPTS in November 2017 for the maximum 12 month period but
with a review at the end of her suspension.
It is most likely that, had that decision been left undisputed by the GMC, then Dr Bawa Garba who continued then, as now, to have the fulsome support of her employer and colleagues, would have returned to work under supervision at the end of her suspended sentence. That would have been in or about November 2017. But that was not what happened.
In Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
This week, the Home Secretary Sajid Javid launched the Windrush Compensation Scheme. It is estimated that the total compensation will be somewhere in the region of £200m, but critics note that individual payments may be ‘insultingly low’, as with a cap of £1,000 for those who left under a ‘voluntary’ return scheme. The government has published an impact assessment for the scheme.
The media (and certain MPs) have reacted with outrage to a High Court judge’s statement that a man had a ‘fundamental human right’ to have sex with his wife. The remark was made by Hayden J in a Court of Protection case concerning a marriage to a woman with severe learning disabilities. One commentator has suggested that the remark has been interpreted uncharitably, and was simply meant to indicate a cautious approach to governmental interference with private life in such complex and difficult situations, in line with Article 8 of the ECHR.
The Foreign Office has appointed human rights lawyer Amal Clooney as its ‘Special Envoy for Media Freedom’. Meanwhile, human rights criticisms of the UK government itself have come from various angles:
The Northern Ireland Human Rights Commissioner has called on Theresa May to clarify the post-Brexit rights of Northern Ireland-born Irish citizens.
The Scottish Commissioner for Young People and Children has called for UN intervention to address Scottish breaches of children’s human rights, such as by strip-searching and illegal restraint. The Commissioner urges the implementation of the UN Convention on the Rights of the Child into Scots law.
A report by the Commons Foreign Affairs Committee, titled ‘China and the Rules-Based International System’, worries that UK trade policy with China is prioritising economic interests over other vital concerns such as human rights violations.
A report by Citizens UK indicates that the Home Office is making a substantial profit (~£25m/year) from fees to process citizenship applications by the children of migrants who have grown up in the UK.
As Shamima Begum’s lawyers prepare her appeal against the government’s decision on her citizenship, international criticism of the UK’s reluctance to repatriate children of ISIS parents is growing, with repatriations by France and Germany, and pressure from the International Committee of the Red Cross.
Outside the UK:
Brunei’s anti-LGBT law has come into force, despite overwhelming international criticism.
Debate continues about Mark Zuckerberg’s call for a US state regulator of Facebook.
…..the graphic opening words of today’s decision by the Supreme Court in a defamation case. The next words are equally clear and arresting: ” What would those words convey to the “ordinary reasonable reader” of a Facebook Post?”
The context was a recently ended unhappy marriage between Mr Stocker (the Claimant) and Mrs Stocker (the Defendant), and a series of posts arising out of a Status Update by a Mrs Bligh (Mr Stocker’s new partner) in December 2015. Mrs Stocker and Mrs Bligh commented on each other’s posts for the next 2 hours 18 minutes. Mrs Stocker did not mince her words: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested.”
This was quickly followed by “wouldn’t bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me..”. This was a reference to an incident which had happened some 12 years before.
Mr S did not take kindly to this attempt “to blacken [him] in the eyes of his current girlfriend and belittle her”: as the Court of Appeal put it.
He sued. He won before the judge, and before the Court of Appeal.
… the horse? In September last year a County Court judge in Washington, Oregon, threw out a case for lack of standing. The claim (Justice vs Gwendolyn Vercher Case 18CV17601) was filed in the name of an eight year old quarter horse whose abuse at the hands of his owner had led to a conviction and fine for animal neglect.
In March 2017 the horse — then known as Shadow —was found emaciated and with a prolapsed penis that was swollen “red raw” and “oozing serum” as a result of frostbite. He was 300lb (136kg) underweight and also suffering from lice and rain scald having been left without adequate food or shelter throughout the winter. Although his owner agreed to pay the horse’s veterinary expenses up to the date of conviction, the equine charity maintain that the injuries he has suffered will require “special and expensive medical care for the rest of his life” and are a barrier to finding the horse a new home.
With a third rejection of Theresa May’s deal on Friday, Brexit remains a dismal subject. Dismal not only for its economic but for its human rights implications: this week, the Parliamentary Joint Committee on Human Rights published its report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The report (available here) raises concerns about legal limbo for the 3m EU citizens remaining in the UK post-Brexit. In particular, it makes the following recommendations:
The bill in its present form is a ‘blank cheque’ affording ministers excessive discretion to remove rights. The JCHR recommends an amendment requiring the Secretary of State to ensure that any regulations contain measures to protect the acquired rights of persons who benefited from EU free movement of persons prior to Brexit.
The EU Settlement Scheme is unclear on the implications of failure to register the time limit. The JCHR recommends provisions for registration outside the time limit, and/or otherwise to limit the implications of the time limit.
The EU Settlement Scheme in its present form would issue only electronic proof of a successful application. The JCHR recommends the issuing of physical proof, echoing the EU Justice Committee in a comparison to the Windrush scandal on this point.
Vulnerable people may have difficulty in accessing the EU Settlement Scheme. The JCHR recommends that steps be taken to ensure that vulnerable people are aware of their rights, and have assistance in accessing the scheme.
Finally, the JCHR recommends clarification of the Common Travel Area for Irish citizens.
A white supremacist murdered 50 worshippers and injured 50 more in two consecutive terrorist attacks at mosques in Christchurch, New Zealand during Friday Prayer on 15 March 2019. The victims’ ages ranged from 3 to 77. Immediately prior to the attacks, the perpetrator emailed a 73-page manifesto to more than 30 recipients, including several media outlets and the office of Prime Minister Jacinda Arden. It expressed anti-immigrant hate speech, white supremacist rhetoric, and an unequivocal statement that the motive behind the attacks was to accelerate anti-Muslim and anti-migrant sentiment across majority white nations.
We have had the rare opportunity to interview a high court judge in South Africa. Mr Justice Steenkamp is a member of the specialist branch of the high court bench which reviews employment decisions from the lower courts on their way to the appeal courts and ultimately the Constitutional Court. In a country where people are plentiful and employment is scarce, strike action, even protests protected under the Constitution, is fraught with difficulty, particularly where violence abounds and the police force is inactive or overwhelmed. Rosalind English speaks to Labour Court Judge Steenkamp in his chambers at the Labour Court in downtown Cape Town. Citations for the cases referred to in the interview are set out below, along with the relevant legislation.
Today (21 March) the Royal College of Physicians (RCP) has dropped its opposition to assisted dying and moved to neutrality. The RCP has opposed assisted dying since 2006 but has now brought its position in line with the range of views held by its members, and with the 82% of the public who want greater choice at the end of life. Today’s result is a great victory for patients and for the campaign group Dignity in Dying. Their full press release can be found on their website and a breakdown of the results is available on the RCP website.
On 20 March Dignity in Dying released a report exposing the fact that those behind the legal challenge to the RCP (detailed below) have a long history of campaigning for pro-life causes and connections to American pro-life lobbyists, the Alliance Defending Freedom (ADF).
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