It is now over a month since the death of George Floyd.
The UK Human Rights Blog and Law Pod are committed to continuing the conversation about racism in the UK prompted by his death and the Black Lives Matter protests.
Michael Paulin has discussed a number of issues in his recent article.
The beginning of this week marked Windrush Day, introduced in June 2018 on the 70th anniversary of the Windrush migration, to celebrate the contribution of the Windrush Generation and their descendants to Britain. In Episode 117, Emma-Louise Fenelon speaks to Martin Forde QC, Independent Adviser to the Windrush Compensation Scheme about racial inequality in the UK, in immigration history and at the Bar. The Counsel magazine front cover interview with Martin Forde QC in their June Issue is available here.
We don’t dispense legal advice from the UKHRB, but I thought this was a very interesting question and the editorial board felt it best to try to answer it in a separate post, so here it is, and many thanks to Henry Tufnell, one of our pupil barristers, soon to become one of our new tenants, for taking up the challenge.
The vigilant gaze of the European Commission will begin to turn away from UK when the post-Brexit transition period ends at the turn of the year. The Commission has used its powers as the ‘guardian of the treaties’ to enforce EU laws relating to nature conservation, waste and air pollution. Its absence will leave a governance gap, and replacement institutions are needed to ensure that environmental laws are enforced.
This article discusses the functions and powers of the ESS in the Bill and then analyses the proposals through the lens of the UN’s Paris Principles (used for assessing the credibility of national human rights institutions).
This week the UK government lowered the COVID-19 alert level from level 4 to level 3, with non-essential shops reopening for business on 15 June. July 4 will be “the next big stage” in the government’s plan; it is expected that pubs and restaurants may reopen then. The 2m social distancing rule is under review, and the government have implied that it may be lifted soon.
Meanwhile, the contact tracing app which had been developed by the ‘healthtech’ body NHSX has been scrapped, owing to severe limitations in detecting contacts from iPhones. The government will now move forward instead with a Bluetooth tracing system developed by Google and Apple, looking to incorporate the successful parts of the NHSX app where possible. Whichever system is eventually deployed will face intense scrutiny. Contact tracing apps worldwide are raising human rights concerns, as has been explained by Amnesty International and other organisations.
Black Lives Matter protests continued this week across the cities of the UK, with protesters calling for the removal of statues of figures from UK history associated with the colonial past of the British Empire, such as that of Winston Churchill in Parliament Square. Protesters have also called for the removal of Boris Johnson’s Director of Policy, Munira Mirza. Mirza is a long-standing opponent of the ‘anti-racism’ movement which has gained significant ground during the last few weeks, having been a critic of Blairite ‘multiculturalism’ and the 2017 Lammy Review of BAME groups in the justice system, and having played down allegations of institutional racism such as those raised by the Windrush scandal. She has been asked by the Prime Minister to head a new commission on racial inequalities.
In other news:
The US Supreme Court issued two landmark decisions this week. In Bostock v Clayton County, the court interpreted the word ‘sex’ in Title VII of the Civil Rights Act 1964 as including both sexuality and gender identity, such that it is unlawful for an employer to fire someone merely for being gay or transgender. In Department of Homeland Security v Regents of the University of California et al, the court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (‘DACA’), a program which protects child immigrants from deportation, on the basis that the administration had failed to provide a ‘reasoned explanation’ for its decision.
UN Human Rights Chief Michelle Bachelet has called for worldwide action on systemic racism. Speaking to the UN Human Rights Council, she said that “behind today’s racial violence, systemic violence and discriminatory policing lies the failure to acknowledge and confront the legacy of the slave trade and colonialism”, and urged countries to “make amends for centuries of violence and discrimination, including through formal apologies, truth-telling policies, and reparations in various forms.”
The US Congress has passed a new law, under which Chinese officials deemed to be responsible for the arbitrary detention and torture of Uighurs will be denied entry to the country and have any assets held in the USA frozen. China’s foreign ministry has strongly criticised the law, stating that the US should ‘immediately correct its mistakes’.
In the courts
There were three noteworthy decisions in the courts this week. These considered, respectively, workers’ rights and coronavirus; criminal procedure and Article 5 ECHR; and Scottish family law and Article 8 ECHR.
R (oao Adiatu & anor) v HM Treasury: this was a judicial review of decisions made by the Treasury in respect of the availability of Statutory Sick Pay (‘SSP’) and the Coronavirus Job Retention Scheme (‘JRS’) during the pandemic. The challenge was brought by Mr Adiatu, a Nigerian Uber driver with leave to remain, together with the Independent Workers’ Union of Great Britain. The Claimants sought a declaration that the Treasury’s decisions were discriminatory under the ECHR and/or EU law and/or in breach of the public sector equality duty (‘PSED’) under s.149 Equality Act 2010. The court rejected this on all counts: the Treasury was within its margin of appreciation under the ECHR, noting the urgency and practical difficulties involved in applying SSP and the JRS during the coronavirus crisis; the means adopted by the Treasury were proportionate; and ministerial submissions prior to the roll-out of the JRS discussing the possible effects on women and BAME people confirmed that sufficient regard had been had by the Treasury to the PSED.
Archer v The Commissioner of Police of the Metropolis: in 2012, aged 15, the Claimant was involved in an incident at a chicken shop in Woolwich where he was stabbed in the back and head by local gang-members. He was arrested on suspicion of violent disorder and possession of an offensive weapon, and subsequently detained pursuant to s.38(1)(b)(ii) Police and Criminal Evidence At 1984 (‘PACE’), which authorises detention where “the custody officer has reasonable grounds for believing that [the arrested juvenile] ought to be detained in his own interests.” He sought a declaration of incompatibility on the basis of Article 5 ECHR, together with damages for unlawful detention under s.8 Human Rights Act 1998. The court held that his detention had not been incompatible with Article 5 ECHR, and so he was not entitled to damages, nor was the impugned section of PACE incompatible with Article 5. In reaching this conclusion, the court followed IA v France, where it had been held that ‘own protection’ could be a ‘relevant and sufficient’ reason for detention. Although the detention was justified by the Claimant’s own protection, it was still ‘with a view to’ bringing him before a court, and therefore was “for the purpose of bringing him before the competent legal authority” under Article 5(1)(c)– even if but for the need to protect the suspect, detention would not have been necessary. Granting the declaration would have risked making it “impracticable for the police to fulfil their duties”.
ABC v Principal Reporter & Anor (Scotland): this appeal concerned the role of siblings in the procedures by which ‘children’s hearings’ in Scotland make compulsory supervision orders (‘CSOs’). The hearings in question are attended by the child in question, together with ‘relevant persons’, who must attend or face criminal sanction; ‘relevant persons’ are understood in the legislative scheme as persons who have had a significant involvement in the child’s upbringing, and therefore will ordinarily not include siblings. The Claimants, ‘ABC’ and ‘XY’, had not been deemed relevant persons in respect of their younger siblings who were made subject to CSOs. They argued that the legislative scheme was incompatible with Article 6 and Article 8, and that siblings should have procedural rights in relation to these hearings, in particular to attend and make representations. The court rejected this argument, noting that concerns about privacy and the dissemination of sensitive information outweighed the rights of siblings in these cases. However, Lady Hale and Lord Hodge emphasised in their judgement that there must always be a ‘bespoke enquiry about the child’s relationship with his or her siblings’ in each case.
Yesterday’s judgment of Mr Justice Mostyn in GMC v Awan  EWHC 1553 (Admin) illustrates the fact that the Court’s deference to the specialist Tribunal’s judgment on sanction continues to be extended to cases relating to sexually motivated online misconduct, as also occurred in GMC v X  EWHC 493 (Admin) last year, when Soole J upheld a 12-month suspension.
GMC v Awan concerns a GP’s sexually motivated online chat with someone posing as 13 year old child. The GMC’s appeal under section 40A of the Medical Act 1983 was dismissed by Mostyn J and the 9-month suspension imposed by the Tribunal was upheld.
In November 2019 Dr Hafeez-Ur Rehman Awan came before the Medical Practitioners’ Tribunal facing allegations that on 5 January 2016, when he was working as a GP, he had logged into a chat room with the username “medic333” which “obviously signified that he was a member of the medical profession” [#15]. Once in the chat room, the Respondent started exchanging messages with a person with the username “Sophiasheff”, who was in fact a police officer conducting an undercover sting operation.
PHG, linked with Cambridge University, provides independent advice and evaluations of biomedical and digital innovations in healthcare. PHG has recently published a series of reports exploring the interpretability of machine learning in this context. The one I will focus on in this post is the report considering the requirements of the GDPR for machine learning in healthcare and medical research by way of transparency, interpretability, or explanation. Links to the other reports are given at the end of this post.
Machine learning typically denotes “methods that only have task-specific intelligence and lack the broad powers of cognition feared when ‘AI’ is mentioned”. Artificial intelligence (AI) can be defined as “the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.” We are only beginning to realise the scope of intelligence that is silicone-based, rather than meat-based, in the reductionist words of neurscientist and author Sam Harris. It is important too to grasp the difference between types of programming. As this report puts it,
Machine learningas a programming paradigm differs from classical programming in that machine learning systems are trained rather than explicitly programmed. Classical programming combines rules and data to provide answers. Machine learning combines data and answers to provide the rules
“In the end, we will remember not the words of our enemies, but the silence of our friends” said Martin Luther King in the context of White America’s silence with respect to the struggle for civil rights. The Prime Minister considers it relevant that the alleged murder of George Floyd occurred thousands of miles away – “in another jurisdiction” – yet the former colonies that now compose the United States of America is a jurisdiction which owes its common law legal system and heritage to the United Kingdom. St. George Tucker, in the appendix to his 1803 edition of Blackstone’s Commentaries, wrote that
the common law of England, and every statute of that Kingdom, made for the security of the life, liberty, or property of the subject … were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein .
The Black Lives Matter movement illuminates an incontrovertible chasm in the application of the rule of law in liberal democracy. The basic premise of the rule of law, which in Joseph Raz’s conception is that it should be capable of guiding behaviour, includes the necessary restriction on crime-preventing agencies from perverting the law. A society in which those tasked with upholding and applying the law – under the powers of stop-and-search and arrest – are instead themselves regular perpetrators of racist discrimination and violence, is one in which the rule of law can become a randomised hope that is more or less likely to be realised depending on the race of the citizen in question.
In Episode 116 Emma-Louise Fenelon speaks to Richard Scorer, Head of Abuse at Slater and Gordon, about progress of the Independent Inquiry into Child Sexual Abuse and in particular the investigation into abuse within minority religions (including non conformist Christian denominations, the Jehovah’s Witnesses, Baptists, Methodists, Islam, Judaism, Sikhism, Hinduism and Buddhism). The episode also examines the effect of Covid-19, and the impact virtual hearings has had on evidence at the Inquiry to date.
More information on the module on minority religions can be found here.
Ten years after the Equality Act came into force, the Equality and Human Rights Commission (EHRC) have published their findings and recommendations in a report entitled “Inclusive Justice: a system designed for all”.Although the report recognises where progress has been made, it also identifies very significant problems.
The inquiry, which covered England, Wales and Scotland, heard from defendants, legal professionals, charities, intermediaries and organisations who help people with what are often referred to as “hidden disabilities” – cognitive impairments, mental health conditions, and neuro-diverse conditions.
The EHRC’s key recommendations focus on the pre-trial phase, when important decisions are made about adjustments and whether the defendant will plead guilty or not guilty. The report is concerned both with participation and also the opportunities and risks arising from the increase in modernisation (for example, video hearings).
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: Lorie Shaull
Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.
The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.
In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.
This judgment concerns the definition of “an offence that has caused serious harm” for the purpose of an appeal against deportation on private and family life grounds under Article 8.In this set of cases, the Court of Appeal took a broad view as to the meaning of this provision, but also held that there must be evidence that the offender has actually caused serious harm.
Foreign national criminals and Article 8
The Immigration Act 2014 made various amendments to immigration law for the purpose of introducing a “structured approach” to the application of article 8 of the European Convention on Human Rights.
These changes included inserting new sections 117C-D into the Nationality, Immigration and Asylum Act 2002, which heavily prescribe the criteria for the assessment of the Article 8 rights of “foreign criminals.”
COVID-19 has changed many things about society, and one of the most significant is the erosion of the taboo surrounding death. After all, we have daily bulletins on death figures. As Dignity in Dying Sarah Wootton says, in her forthcoming book “Last Rights”,
The coronavirus pandemic has thrust death and dying into the mainstream.
This sensitive and compassionate judgment by Hayden J following a remote hearing of the Court of Protection is therefore worth our attention, as we all become more aware of how acutely things slip out of our control, not least of all our health.
The application from the Trust concerned a 34-year-old man (MSP) who has had significant gastrointestinal problems for approximately 10 years, requiring repeated invasive surgery. At the time of the hearing he was unconscious and on life support in ICU. The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.
Between 2013 and 2020 MST underwent significant abdominal surgery and had a stoma inserted in 2018. The court noted that he “utterly loathed” life with a stoma. He did express his consent to the stoma being inserted at the time, but this consent seemed entirely contrary to his unambiguous rejection of this procedure, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point.
Significantly, on 4th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told. In this Advance Directive he stipulated, among other things, that he would refuse the “formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% or under”.
As many others in the legal community have said, we at the UK Human Rights Blog are deeply saddened and appalled by the killing of George Floyd and the events in Minneapolis and elsewhere that exemplify systemic racism and violence against black people.
We endorse the statements made by the Bar Council and by 1 Crown Office Row which may be found here.
We will explore these issues in more depth in upcoming podcasts and articles.
When a provision of legislation is held to be incompatible with a Convention right, a Minister of the Crown ‘may by order make such amendments to the primary legislation as he considers necessary’. This power to take remedial action, contained within section 10 of the Human Rights Act (HRA), applies when a domestic court finds an incompatibility with the European Convention on Human Rights (ECHR), and also when the Minister considers a provision of legislation incompatible with the Convention ‘having regard to a finding of the European Court of Human Rights’ (ECtHR). A recent draft remedial order laid before Parliament aims to remedy an incompatibility of the latter kind, following the ECtHR’s judgment in Hammerton v United Kingdomno. 6287/10 ECHR 2016. The draft remedial order is of particular interest because it purports to amend the Human Rights Act itself.
Professor Richard Ekins, writing for Policy Exchange, has criticised the draft remedial order as ultra vires and ‘of doubtful constitutional propriety’ and argues that the power in section 10 does not authorise ministers to amend the HRA itself. Further, he contends that the Hammerton judgment of the Strasbourg Court – which gives rise to the draft remedial order – is open to question. This blog post seeks to demonstrate that, whatever the merits of the wider argument about the constitutional propriety of amending the HRA through the power in section 10, the Hammerton judgment itself is based on well established ECHR case law. It is suggested that, in so far as it rests on a characterisation of the Hammerton judgment as unreasoned or lacking a reasonable basis, any view that the draft remedial order is of questionable validity is mistaken
The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.
This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office  EWCA Civ 723 could be profound for our electoral law.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.