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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The Weekly Round-Up: restrictions, refugees and the right to privacy

21 February 2022 by

In the news:
Prime Minister Boris Johnson is expected to announce the removal of the last remaining COVID-19 restrictions this afternoon. It is expected that the legal requirement to self-isolate after testing positive will be scrapped alongside free PCR and lateral flow tests. Mr Johnson is set to announce the end of restrictions to be a “moment of pride”, although some groups have expressed concerns about the approach, including NHS leaders and the chair of the British Medical Association Dr Chaand Nagpaul, who said the decision “is not based on current evidence and is premature”.


The Welsh Parliament on Tuesday voted to withdraw consent for the British Nationality and Borders Bill, on the basis that reforms to methods for determining asylum-seeker age would undermine the Senedd’s legislative competence, as they related to a devolved matter. In a letter to Minister for Immigration Kevin Foster, the Welsh Minister for Social Justice outlined this and a further ten matters of concern for the Senedd. These included the establishing of Accommodation Centres, which she said would be “fundamentally incompatible with our Nation of Sanctuary approach”, and the fact that the UN Refugee Agency (UNHCR) has said that the Bill “is fundamentally at odds” with the UK’s obligations under the UN Refugee Convention.


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A question of standing

18 February 2022 by

The Good Law Project and The Runnymede Trust, R (on the application of) v The Prime Minister and Anor [2022] EWHC 298 (Admin) (15 February 2022)

This was an interesting ruling on the matter of standing, something that has fallen rather by the wayside since it formed the subject of much satellite litigation in the 1990s. In essence, the Court ruled that the GLP had no standing to bring this claim. Despite its articles of association, whose purposes include the provision of sound administration and equality, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or benevolent purpose ancillary”. Such a general statement of objects could not confer standing on an organisation:

That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case. [58]

Arguments before the Court

The GLP and the Runnymede Trust brought a challenge to the government’s decision to appoint two individuals to head Covid projects such as the Test and Trace programme (Baroness Harding of Winscombe (Dido Harding) was one of the individuals named). Mike Coupe, Director of Testing, NHS Test & Trace, was the other.

The claimants contended that the government had a practice of appointing people to positions critical to the government’s response to the COVID-19 pandemic without open competition, that only candidates with some relevant personal or political connection to the decision-maker were appointed, and that, even though the positions to be filled were senior and strategically important, the person appointed was unpaid. The Claimants said this gave rise to indirect discrimination on grounds of race and/or disability. They made other complaints about the process used by the Defendants.

The Defendants disputed all these claims on their merits. In addition, they contended (a) that the matters complained of had now been overtaken by events rendering the claims academic, and that for that reason, the claims should not be determined by the court; (b) that the claims had been brought too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also one further matter, which the Court considered in the context of the standing issue, although it was conceptually distinct. That was whether the decisions challenged were amenable to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review.


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Court of Appeal examines limits of judicial authority

17 February 2022 by

R (Richards) v Environment Agency Case [2022] EWCA Civ 26

Richards is, at its core, a case about the proper relationship between the courts, regulators and third parties who engage in potentially hazardous activities, but the Claimant in the case was none of these. Rather, it was Mathew Richards, a 6-year-old boy who suffers from lung problems, recovery from which was inhibited by emissions of hydrogen sulphide gas from the Walleys Quarry Landfill Site which is situated near his home in Staffordshire. The central question was whether the Environment Agency (EA) had taken sufficient steps to discharge its legal duties to protect the Claimant.

In Richards, the Court of Appeal set aside a declaration of Fordham J in which he had spelled out in some detail the scientific and regulatory goals that the EA would have had to meet in their regulation of emissions from the landfill. It is an interesting case for several reasons: it is the first domestic case to consider the human rights standards applicable to regulators tackling present threats under article 2 ECHR (the right to life); it discusses the limits of judicial power in the context of specialist regulators; and it also addresses complex and important questions about the requirements for, and functions of, judicial declarations.


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Law Pod UK latest: the most significant cases of 2021

8 February 2022 by

In the latest episode of Law Pod UK – number 157 – Emma-Louise Fenelon speaks to Jon Metzer about some of the most significant cases of last year. This episode covers:  

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.

Supreme Court dismisses protestors’ appeal over PKK flag conviction

3 February 2022 by

Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here

On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.

BACKGROUND

S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.

The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.


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The Weekly Round-Up: Partygate, trans rights and terrorist flags

31 January 2022 by

In the news: 

The Metropolitan Police have been criticised for their request to Sue Grey not to prejudice their investigation into parties held at Downing Street during lockdown.  Ms Grey has yet to publish her report into the parties, but a “heavily redacted” version is expected “imminently” according to the Guardian.  The Met requested the report to make “minimal reference” to the parties, not that it be delayed or otherwise limited, but it has caused some to question the motives and/or competence of the police.  It is possible that their investigation will go beyond current public knowledge and if criminal charges result in a jury trial the police do have to ensure potential jurors are not prejudiced.  On the other hand, human rights barrister Adam Wagner has questioned why a civil service report on alleged breaches of Covid regulations would prejudice a police investigation. 

In other news: 

The Equality and Human Rights Commision (EHRC) has come under fire from LGBTQ+ campaigners and Scottish First Minister Nicola Sturgeon for its response to the Scottish government’s plans to simplify the process for legal gender recognition, and the UK government consultation on banning conversion therapy.  The EHRC said “more detailed consideration is required before any change is made” to the  Gender Recognition Act 2004.  Ms Sturgeon noted that this was a “significant change in position” for the EHRC and that she was concerned that the Commission’s response “doesn’t accurately characterise the impact of the Bill.” In its response to the consultation on conversion therapy, the EHRC said that a ban should initially focus on attempts to change sexual orientation, while a ban on “conversion therapy attempting to change a person to or from being transgender should follow, once more detailed and evidence-based proposals are available”.  A clause to allow “informed consent” to conversion therapy in the Conversion Therapy (Prohibition) Bill has been condemned by activists but was not criticised in the EHRC’s response.  LGBTQ+ charity Stonewall said the EHRC’s response disregarded the expert opinion on of the UN Independent Expert on Sexual Orientation and Gender Identity and violated the ‘Paris Principles’ of promoting and protecting human rights as a UN-accredited National Human Rights Institution. 

The Joint Committee on Human Rights has launched its investigation into proposals to reform the Human Rights Act.  The Committee will examine government proposals to replace the Human Rights Act with a “Bill of Rights”, which would reduce the impact that case law from European Court of Human Rights has on domestic law. 

In the courts: 

Pwr (Appellant) v Director of Public Prosecutions (Respondent) and Akdogan and another (Appellants) v Director of Public Prosecutions (Respondent) [2022] – this case concerned section 13(1) of the Terrorism Act 2000, which makes it a criminal offence for a person to display an article in public, in a way that arouses “reasonable suspicion that he is a member or supporter of a proscribed organisation”.  The appellants had carried flags of the Kurdistan Workers Party (the PKK), a proscribed organisation, at a demonstration.  The Supreme Court dismissed their appeals, finding that section 13(1) is: a) a strict liability offence, such that there is no necessary mental element beyond the defendant knowing they are displaying the relevant article; and (b) compatible with article 10 of the European Convention of Human Rights (ECHR).  Section 13(1)’s interference with the Article 10 right to freedom of expression is justified by being prescribed by law; in pursuit of legitimate aims; and necessary in a democratic society and proportionate to its legitimate aims. 

R (Binder, Eveleigh, Hon and Paulley) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin) – the High Court allowed a judicial review claim by four disabled adults and granted a declaration that the government’s National Disability Strategy is unlawful.  While there was no common law or statutory duty on the defendants to consult before publishing the Strategy, the Court held that their “UK Disability Survey” amounted to a voluntary consultation (which the defendant denied), and as such the common law principles of consultation fairness (“the Gunning principles”) applied.  The Survey breached the second Gunning principle to “enable intelligent consideration and response” due to its lack of information (it did not outline or allow for comments on specific policy proposals), and format (the questions were all multiple choice except four open-ended questions with word-limits).  The Court rejected the Claimants’ additional submission that the defendant breached the Public Sector Equality Duty per section 149 of the Equality Act 2010. 

R (D4) (Notice of Deprivation of Citizenship) v Secretary of State for the Home Department [2022] EWCA Civ 33 – ‘D4’ was a British and Pakistani dual citizen who has been detained at a camp in Syria for three years.  On 27 December 2019 she was deprived of her British citizenship under Regulation 10(4) of the British Nationality (General) Regulations 2003, which permits the Home Secretary to “serve notice” of a deprivation of British citizenship merely by putting the notice on a person’s Home Office file.  On 28 September her solicitors requested the Foreign Office’s assistance in repatriating and it was then that the deprivation of her citizenship was first communicated to either D4 or her advisors.  This case was a judicial review of Regulation 10(4) and the Court of Appeal found the regulation ultra vires; it went beyond the Home Secretary’s powers under the British Nationality Act 1981 and was therefore unlawful.  However, if the Nationality and Borders Bill is passed, it will remove the requirement to give notice if it is “in the public interest” and will apply to this case retrospectively, effectively making lawful D4’s deprivation of citizenship without personal notice.  (see last week’s round-up for more on deprivation of citizenship) 

On the UKHRB: 

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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