14 October 2024 by Catherine Churchill
In UK News
Last week, the Government published the new Employment Rights Bill – a bill Deputy PM Angela Raynor has said seeks to “turn the page on an economy riven with insecurity, ravaged by dire productivity and blighted by low pay”. Among the measures included are steps towards ending “exploitative” zero-hour contracts, the introduction of a statutory probation period for new hires, and the removal of the two-year qualifying period for claims to unfair dismissal. The bill places significant emphasis on flexible working as the future of employment, stating that it will be “default for all, unless the employer can prove it is unreasonable”. With various aspects of the bill strengthening protections to women in the workplace, Jemima Olchawski, CEO of the Fawcett Society, has called the bill “a win for women”. However, the bill is not without its critics. Sharon Graham, the general secretary of Unite union, claimed in a post on X (formerly Twitter) that the bill has “more holes than Swiss cheese”, leaving loopholes for employers to evade the provisions on zero-hour contracts and fire & rehire. Whistleblowing charity Protect have also expressed regret that the bill does not go far enough to strengthen protections for whistleblowers.
The Tory leadership race continued last week as the candidates were whittled down to a final two: Kemi Badenoch and Robert Jenrick, both considered to be on the right of the party. Membership of the ECHR has become an increasingly central issue in the race. While Jenrick has promised to leave the ECHR immediately if ever elected PM – calling the issue one of “leave or remain” – Badenoch told Sky News she believes that focusing on the ECHR “shuts down the conversation we need to have with the entire country” about migration. Both candidates have been the subject of criticism for comments made during the party conference. Jenrick, in support of his campaign to leave the ECHR, has controversially claimed that special forces are opting to kill instead of catch terrorists as otherwise the “European Court will set them free”. The charity Action on Armed Violence have stated that Jenrick’s comments “do a disservice to the serious allegations at hand” in the inquiry into SAS killings in Afghanistan, which must be “allowed to proceed without political interference”. Badenoch has come under fire for comments insinuating that maternity pay is “excessive” and that “about 5 to 10%” of civil servants are so bad that they “should be in prison”. She has backtracked on both fronts, claiming her comments were “misrepresented”.
In Other News
A UN report published last Thursday – three days after the one-year anniversary of the October 7th attacks – contains findings that “Israel has perpetrated a concerted policy to destroy Gaza’s healthcare system”, committing war crimes in doing so. The report further states that Israeli security forces have “deliberately killed, detained and tortured medical personnel”, with children having “borne the brunt” of the health system’s “collapse”. It was further found that the “institutionalised mistreatment” of Palestinian detainees had taken place under direct orders from Itamar Ben-Gvir, Israeli National Security Minister. On Friday, in a statement from its mission in Geneva, Israel took strong objection to the report, calling its conclusions “outrageous” and a “blatant attempt to delegitimise the very existence of the State of Israel and obstruct its right to protect its population, while covering up the crimes of terrorist organisations”. Israeli representatives have accused the commission behind the report, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territories, of creating an “alternate reality” and refused to cooperate with the investigations preceding the report’s compilation.
On Wednesday, the United Nations Human Rights Council in their 57th session adopted a resolution on Afghanistan in response to the escalating crisis in the country, extending the mandate of the UN Special Rapporteur on Afghanistan. The report resulting from resolution 54/1 to carry out a “stocktaking” of accountability options on Afghanistan was also presented at the session. The report detailed a variety of recommendations to Afghan de facto authorities, including the establishment of a moratorium on executions and the implementation of victim-centred transitional justice measures. While Amnesty International celebrated that the stocktaking marked the “first time in recent years that the UN is debating how to address serious accountability gaps”, the measure was nevertheless “inadequate” in the face of the crimes under international law being committed in Afghanistan. Amnesty also criticised the resolution adopted this week, claiming the council have “shied away from sufficiently supporting justice for the people of Afghanistan who have placed their hopes in the international community” by failing to establish an independent international accountability mechanism.
In the Courts
Last week, the European Court of Justice ruled that European Member States are obligated to recognise legal gender identity changes conducted in other Member States. The Court held that Romania’s refusal to recognise the applicant’s UK Gender Recognition Certificate constituted a violation of his right to move and reside freely within the Member States of the European Union. In a press release accompanying the ruling, the CJEU stated that “gender, like a first name, is a fundamental element of personal identity; […] a divergence between identities resulting from such a refusal of recognition creates difficulties for a person in proving his or her identity in daily life as well as serious professional, administrative and private inconvenience”. The applicant’s legal counsel, human rights lawyer Iustina Ionescu, told charity Transgender Europe that the “verdict has shown that trans people are equal citizens of the European Union”.
The European Court of Human Rights has ruled that Cyprus’ immediate return to Lebanon of Syrian asylum seekers intercepted at sea constituted a violation of their human rights – in particular, the prohibition of inhuman or degrading treatment. There had also been a violation of Article 4 of Protocol No. 4 (prohibition of the collective expulsion of aliens). Cyprus had failed to consider the risk of lack of access to asylum in Lebanon, the risk of refoulement, and the individual situations of the asylum seekers. The Court paid significant attention to a Human Rights Watch report published in September 2020 which revealed systematic mistreatment of asylum seekers by Cypriot authorities. The report had been referenced in the applicants’ arguments and was not challenged by counsel for the Government. Cypriot Government spokesman Konstantinos Letymbiotis has stressed that the events concerned occurred in 2020, under the previous administration, and has denied the allegation that the government has been carrying out further refugee pushbacks since the ruling.
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8 October 2024 by Paula Kelly
The name ‘Chris Pincher’ has become synonymous with Boris Johnson’s downfall, but it was the case of Owen Paterson that precipitated the unrest in the Conservative Party that ultimately led to the former Prime Minister’s resignation.
Owen Paterson stepped down as an MP in November 2021, following a report by the House of Commons Select Committee on Standards that found he had breached the MPs’ Code of Conduct by engaging in paid advocacy and recommended that he be suspended from the House for thirty sitting days. After initially whipping MPs in an attempt to support Mr Paterson and to avoid a possible by-election in North Shropshire, Boris Johnson eventually conceded that the parliamentary party was not with him. Mr Paterson resigned before MPs could vote on the sanction.
The European Court of Human Rights (‘ECtHR’) has dismissed a complaint by Mr Paterson (Patterson v UK App no. 23570 (ECtHR, 19 September 2024)) that the proceedings and/or the finding breached his rights under Article 8 of the Convention to respect for his private and family life.
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7 October 2024 by Emilia Cieslak
In UK news
The government has announced that it is ceding sovereignty of the Chagos Archipelago to Mauritius. When granting Mauritius’ independence in 1968, the UK unlawfully separated the Chagos Archipelago and forcibly expelled around 1500 to 2000 inhabitants in order to lease Diego Garcia, the largest of the islands, to the USA for military use. In 2019, the International Court of Justice (ICJ) held that the British administration of Chagos Archipelago was unlawful and should be ended “as rapidly as possible”. The government has pledged that it shall implement a resettlement programme and a new trust fund to provide support for the inhabitants. However, it has also confirmed that it has leased Diego Garcia to the USA for an initial period of 99 years. The British government has been accused of unlawfully detaining a group of asylum seekers who inadvertently got stranded on Diego Garcia, and legal proceedings are ongoing.
The government has announced that MPs will get to vote on a bill to legalise assisted dying in the UK. It has been confirmed that the MPs will get a free vote and the government will remain neutral. While details of the bill have not yet been confirmed, it has been reported that it is likely to allow terminally ill adults with six months or fewer to live to get medical help to end their lives. The issue raises fervent debate. Supporters of legalising assisted dying argue that it prevents unnecessary suffering and gives patients autonomy over the manner of their death. However, disability rights activists are worried that such legislation would create a hostile and coercive environment for disabled people, pointing to societal stigma around disability and cuts to social care.
In international news
Lithuania has formally referred the Prosecutor of the International Criminal Court (ICC) Karim Khan KC to investigate the situation in Belarus. Lithuania submits that deportation, persecution and other inhumane acts are being carried out against the civilian population of Belarus at the instruction of senior figures in the Belarusian regime. Lithuania describes how thousands of Belarusians have had to flee or been forcibly displaced to neighbouring countries such as Lithuania on political grounds, alleging that this is a tactic used by the Belarusian government to rid itself of political opponents. It provides a list of alleged inhumane acts carried out by the Belarusian government against the civilian population including: serious deprivation of fundamental rights, arbitrary detention, persecution, serious unlawful violence, unlawful killings, sexual violence, physical and mental harm, torture, inhuman and degrading treatment, intimidation and harassment, forced labour, and enforced disappearances. The Minister for Justice for Lithuania, Ewelina Dobrowolska, has stated that she expects the ICC to issue an arrest warrant for President Aleksandr Lukashenko, the leader of the Belarusian regime.
In the courts
The European Court of Justice (ECJ) has held that the Taliban’s “regime of segregation and oppression” against women amounts to persecution and so Afghan women qualify for asylum in the EU on the basis of their gender and nationality. To qualify for asylum Afghan women will not have to demonstrate a real risk of ill-treatment on account of her particular circumstances or characteristics. The Taliban has recently introduced the “Propagation of Virtue and Prevention of Vice Law” that, among other things, requires women to be completely veiled in public and bans women from singing or reading aloud in public. In response, Canada, Australia, Germany and the Netherlands have initiated legal proceedings against the Taliban at the ICJ alleging that the measures constitute gender discrimination and “gender apartheid”.
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24 September 2024 by Dominic Ruck Keene
In Sammut v Next Steps Mental Healthcare Ltd and Greater Manchester Mental Health Foundation Trust [2024] EWHC 2265(KB), HHJ Bird sitting as a judge of the High Court gave summary judgment in favour of the first defendant in a claim against a care home brought on behalf of the estate of a mental health patient for breach of ECHR Article 2. HHJ Bird held that the care home was not engaged in public functions for the purposes of section 6 of the Human Rights Act 1998 and was not a public authority. Further, the alleged breach of Article 2 was in reality no more than an allegation of clinical negligence outwith the scope of Article 2.
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23 September 2024 by Catherine Churchill
In the News
At least 39 people were killed and over 3000 injured last week following a series of attacks in Lebanon and Syria in which electronic pagers and radios were remotely programmed to explode. The devices targeted appear to be those belonging to Hezbollah-affiliated individuals. The military group has claimed Israel was behind the attacks which UN experts have termed “terrifying” violations of international law. Amnesty International has called for the establishment of an immediate international investigation – arguing that the attacks “should be investigated as war crimes” should Israel be determined to be responsible. However, Israeli President Isaac Herzog has stated that the nation “rejects out of hand any connection” to the explosions. The attacks are deepening concerns about the risk of full-scale regional war breaking out in the Middle East, resulting in the calling of an emergency Security Council meeting on Thursday. Matthew Miller, spokesperson for the US Department of State, suggests that it is “too early to say” how this week’s events will impact Gaza ceasefire talks.
Former BBC News presenter Huw Edwards has been given a six-month suspended sentence following his pleading guilty in July to the making of 41 indecent images of children. The ‘making’ of images can include the opening of attachments or downloading from the internet. Following the sentence, Claire Brinton, Specialist Prosecutor at the CPS, stated: ‘This prosecution sends a clear message that the CPS, working alongside the police, will work to bring to justice those who seek to exploit children, wherever that abuse takes place.” However, the sentence has been widely criticised as overly lenient, including by Reform UK Deputy Leader Richard Tice who has written to the Attorney General willing him to appeal the sentence. Various reports have featured lawyers explaining that such a sentence is not unusual given the offence and Edwards’ lack of priors, emphasising that “Mr Edwards fared no better and no worse in this sentencing exercise than he would have done were he not a well-known news presenter”. Opinions are surfacing that the public outrage in response to what is a regular sentence exposes deeper issues within the criminal justice system.
Proposed amendments to the Iraqi Personal Status Law, rowing back several aspects of women’s rights, passed a second parliamentary reading on Monday. The law will soon be put to a final vote. The amendments seek to lower the legal age of marriage for girls to nine years, remove important rights of women in divorce and inheritance settings, and grant religious authorities further command over family matters. Human Rights Watch have noted that “Article 14 of the Iraqi constitution, as well as international human rights law, guarantee all Iraqis the right to legal equality. This amendment would not just undermine this right; it would erase it”. Iraqi women are leading the charge against the amendments, including Noor al-Jilaihawi – an Iraqi MP who has revealed that the parliament’s president refused to acknowledge a request by 124 MPs (over a third of parliament) to remove the reading from Monday’s agenda. On Sunday, the Supreme Judicial Council of Iraq came out in support of the proposed amendments and stressed their view that the amendments would not infringe upon women’s rights.
In the Courts
Last week, the Northern Ireland Court of Appeal upheld the finding that the Northern Ireland Troubles reconciliation law breaches human rights. The controversial first instance judgment in Dillon and others v Secretary of State for Northern Ireland disapplied large portions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 for contravening the Article 2 of the Windsor Framework, a post-Brexit measure ensuring that the UK does not erode the human rights protected within the Good Friday Agreement. While the Act had intended to facilitate the end of legal proceedings relating to the Troubles, it has been met with consistent opposition from victims. The Court of Appeal held the Act to be unlawful on various grounds, including that it seeks to create an immunity for criminal activity related to the Troubles and that it fails to sufficiently safeguard victims. The new Labour Government have suggested they intend to repeal several key features of the Act.
Former Tory MP Owen Paterson has lost his appeal to the European Court of Human Rights. The Court declined to grant the declaration sought that the parliamentary investigation into Paterson’s conduct whilst MP was unfair and procedurally flawed. The former MP resigned in 2021 following an investigation and final report which recommended his suspension for an ‘egregious’ breach of lobbying rules. The Court found that the inquiry had been “fair, rigorous and thorough” and emphasised it was not for courts to interfere with the “business of Parliament” – such as how standards are enforced. The Court were further unable to attribute Paterson’s claimed £120k per annum financial losses to the investigation since “as he himself resigned from the House of Commons before the house could consider whether or not to apply the recommended sanction [of suspension], neither the loss of his seat nor the loss of income from his position as an MP were a necessary consequence of the investigation”.
The European Court of Human Rights also handed down judgment last week in Pindo Mulla v Spain, holding that the administration of blood transfusions to a Jehovah’s Witness against her will “breached her right to autonomy”. There had consequently been a violation of her Article 8 (right to respect for private and family life) of the European Convention on Human Rights when read in the light of Article 9 (freedom of thought, conscience and religion). Although it was found that the situation had arisen out of improper documenting of Ms Pindo Mulla’s wishes not to receive blood, the Court emphasised that in all cases, “a patient’s autonomy was to be reconciled with their right to life”. As to the documentation, it was underlined that “where a State [has] decided to put in place a system of advance medical directives relied on by patients, it [is] important that the system functions effectively”. Speaking to AFP, Pindo Mulla said she was “very happy that justice has been done” and seemed hopeful that the ruling would “allow the rights of other people to be respected in the future.”
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18 September 2024 by Emma-Louise Fenelon
In Episode 201 Emma-Louise Fenelon speaks to Emma Snell of JUSTICE and Christian Weaver, a barrister at Garden North Chambers about Achieving Racial Justice at Inquests: A Practitioner’s Guide (2024), a guide recently published by JUSTICE and INQUEST.
His Honor Judge Mark Lucraft KC, Chief Coroner of England & Wales from 2016-2020 endorsed the guide saying the following:
“This important guide equips practitioners and coroners to recognise, raise and investigate issues of race or racism when they arise, sensitively and without reticence. It is an invaluable resource, not only for promoting racial justice, but for improving fact finding, increasing racial awareness, and providing better representation to families.”
Emma Snell is a Senior Legal Fellow at JUSTICE.
Christian Weaver is a barrister at Garden Court North Chambers and the author of The Law in 60 seconds: A Pocket Guide to Your Rights, and of the upcoming Your Right to Protest: Understand It, Use It. For those interested in other publications from INQUEST, see here
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16 September 2024 by Emilia Cieslak
In UK news
The Secretary of State for Northern Ireland, Hilary Benn, has announced a public inquiry into the killing of Pat Finucane. Mr Finucane was a solicitor working in Belfast who had represented high profile IRA prisoners. He was killed by loyalist paramilitaries from the Ulster Defence Association in 1989 and a previous review by Rt Hon Sir Desmond de Silva QC found “frankly shocking levels of collusion” between the paramilitaries and state agents. In 2019, a Supreme Court judgment found that the British government failed to discharge its obligations to investigate state-caused deaths under article 2 ECHR through the da Silva Review which, among other things, did not have the power to call witnesses. Geraldine Finucane, Mr Finucane’s widow, commented in a statement: “An independent, statutory public inquiry is and was the only way to bring the whole truth behind the murder of Pat Finucane into the light of day”. The Secretary of State has said: “This government takes our human rights obligations, and our responsibilities towards victims and survivors of the Troubles, extremely seriously”.
The Courts and Tribunals Judiciary has just published the newest edition of the Administrative Court Judicial Review Guide. The guide covers all the stages of judicial review proceedings, and is available here, for the perusal of practising and aspiring lawyers (as well as interested others).
In international news
Tedros Adhanom Ghebreyesus, the director-general of the World Health Organisation has criticised the inadequate international response to the conflict in Sudan. Since April 2023, over 20,000 have been killed and over 10 million people are displaced, while 25.6 million people (around half of Sudan’s population) are facing high levels of food insecurity. Ghebreyesus has called for an immediate ceasefire with a lasting political solution as well as a scale up in the delivery of humanitarian aid. Human Rights Watch have published a report about the flow of foreign arms which are sustaining the fighting. Human Rights Watch have traced the weapons to China, Russia, Iran, Serbia and the United Arab Emirates, and argue that weapons such as armed drones, rocket launchers and anti-tank missiles have been used in attacks against civilians. Human Rights Watch is calling for an arms embargo for the entirety of Sudan, and a sanction regime to punish those violating the existing arms embargo on Darfur.
Mélanie Joly, the Canadian Foreign Affairs Minister has announced the suspension of 30 licences for arms sales to Israel, in addition to blocking a contract with the US government to send ammunition produced in Quebec to the Israeli Defence Forces (IDF). The UK has also suspended 30 out of 350 arms export licences to Israel, stating that “there does exist a clear risk that they might be used to commit or facilitate a serious violation of international humanitarian law”. NGO Global Action Legal Network, partnering with Palestinian NGO Al-Haq, is in the process of challenging continued UK weapons exports to Israel.
In the courts
The High Court has quashed the grant of planning permission for a new coal mine at Whitehaven, Cumbria. The Secretary of State had previously admitted an error of law as the downstream emissions caused by the inevitable burning of the extracted coal were not factored into the Environmental Impact Assessment, thus the appeal was litigated by the mine owner West Cumbria Mining. The High Court did not accept the argument that coal mined in Cumbria would substitute coal extracted elsewhere to meet market demand, or the argument that the mine would have a “net zero” impact because West Cumbria Mining pledged to purchase carbon credits.
A contractual dispute between Tesco, the Union of Shop Distributive and Allied Workers, and a small group of Tesco’s employees has shone a new light on controversial “fire and rehire” practices. In 2007, Tesco closed down some of its distribution centres and opened new ones in new locations. To persuade staff to relocate they offered enhanced pay referred to as “retained pay”. Employees were told that the retained pay was permanent. In January 2021, Tesco decided to “phase out” the retained pay in exchange for a lump sum, and told employees that if they did not did not accept this change their contracts of employment would be terminated and they would be rehired on new contracts with the retained pay removed. The Supreme Court held that there was an implied term, required for business efficacy, that Tesco could not terminate the employees’ contracts to rehire them without the retained pay. The mutual intention of the parties was that the retained pay would serve as an inducement for experienced workers to relocate and this would be undermined if Tesco had the right to unilaterally remove the retained pay at any time for its business purposes.
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10 September 2024 by Edward Waldegrave
In The Commissioner for the British Indian Ocean Territory v. The King (on the application of VT and Others), the UK Government has lost the latest round in long-running litigation concerning a group of individuals accommodated in basic facilities on the remote British Indian Ocean Territory (the “BIOT”).
Background
The BIOT is an archipelago consisting of over 50 islands located roughly half way between East Africa and Indonesia. It is a British Overseas Territory and is formally administered from London by a Commissioner, who performs both legislative and executive functions.
Diego Garcia is the largest island in the archipelago. It has no settled population but accommodates a substantial US/UK military facility. The facility employs a transient population of about 4,000.
In 2021 a group of individuals of Tamil ethnicity left India by boat, apparently with the goal of reaching Canada. On 3 October 2021 their vessel encountered difficulties in the Indian Ocean and was escorted by the Royal Navy to Diego Garcia. Following their arrival in the BIOT, the individuals made claims for asylum. These claims remain un-determined, and some 61 individuals (including children) have now been living on Diego Garcia for nearly three years. There they have been housed in what have been described as “hellish” conditions. The majority live in tents in Thunder Cove (referred to as the “Camp”). Initially they were confined to the Camp itself, but as a result of an order made on 21 December 2023 they gained access to a nearby beach. They also have limited access to buildings outside the Camp for the purposes of consultations with lawyers, medical treatment and, for children, education. A few individuals who with medical complaints which could not be addressed on Diego Garcia have been flown to Rwanda for treatment.
In May 2024 eleven individuals were granted “bail” on terms which allowed them (in summary) to leave the Camp and walk along highway DG1, and to access beaches from the road. These arrangements appear to have been uncontroversial. When they were put in place, it was envisaged that the limited freedoms granted to the eleven individuals would be extended to the other migrants on Diego Garcia. In any event, it was also expected that the position of all of the individuals would be finally resolved at a hearing scheduled for July 2024. This substantive hearing has, however, been indefinitely adjourned.
The July 2024 Bail Application
In July 2024 a number of the individuals applied for extended bail. Specifically, they sought access to a “nature trail”, and also sought changes to the terms on which their bail could be exercised.
In response to this application (the “July Application”) the Commissioner sought the views of the US authorities responsible for the operation of the military facilities on Diego Garcia. The US authorities provided their views on the July Application a few hours before it was due to be heard (on 23 July 2024). The US position was stark: it opposed any extension of bail on the basis that the proposals posed “operational, security, health and safety risks [to the military facilities on Diego Garcia]… which cannot be mitigated or would be unduly burdensome to mitigate”.
The Commissioner applied for an adjournment of the hearing of the July Application to give him more time to consider the response of the US. This was rejected.
Very shortly after the hearing on 23 July, the Commissioner received letters from (i) the Director General for Africa and the Americas at the Foreign, Commonwealth and Development Office; and (ii) the Minister of State for Europe, North America and the UK Overseas Territories. Both emphasised the respect which should be accorded to the US’ concerns. These letters were provided to the Court.
On 26 July Judge Obi of the Supreme Court of the BIOT granted the July Application, subject to some relatively minor caveats. In particular, she extended bail to all the relevant individuals and permitted access to the Nature Trail.
The Commissioner appealed, and the Court of Appeal of the BIOT heard the appeal on 9 August. It handed down its decision, dismissing the appeal, on 20 August.
The Commissioner’s Grounds of Appeal
The Commissioner appealed against the Judge’s order on four grounds:
- It was procedurally unfair for the Judge to have proceeded with the hearing of the July Application on 23 July (i.e. not to have granted the Commissioner’s application for an adjournment to allow more time to consider the US response).
- The Judge exercised her discretion unreasonably because she failed properly to consider the impact of extending bail on US/UK relations.
- The Judge exercised her discretion unreasonably because she failed to attribute due weight to the assessment by the US authorities of the security implications of extending bail.
- The Judge exercised her discretion unreasonably because the July Order necessarily impacted upon decisions by the Commissioner concerning the allocation of resources.
The Court of Appeal’s Determination
The Court of Appeal dismissed the Commissioner’s appeal on all grounds.
Ground 1: Procedural Unfairness
The Court rejected the Commissioner’s contention that it was procedurally unfair for the Judge to refuse to adjourn the hearing of the July Application for two reasons.
First, the Court agreed with the Respondents that there was nothing “new” in the US’ response to the July Application. In summary it took the view that the US’ position had long been clear, and had amounted to “consistent and unvarying opposition” to any bail arrangements. Its response to the July Application was wholly consistent with this. Accordingly the Judge had been entitled to take the view that it was not necessary for the hearing to be adjourned for the Commissioner to have a fair opportunity to present his case.
Secondly, the Court noted that the Judge permitted oral submissions to be made on the two letters which the Commissioner received just after the hearing of the July Application. That further oral hearing constituted an obvious opportunity for the Commissioner to make any additional submissions on the US’ response to the July Application. The fact that he had not sought to make any such submissions undermined the contention that it had been unfair for the Judge not to adjourn the first hearing.
Ground 2: US/UK Relations
The Commissioner’s next ground of appeal relied on a contention that the Judge had failed to attach due significance to the impact that extending bail would have on US/UK relations.
The Commissioner’s case on this ground seems to have been somewhat confused. It appears to have been uncontroversial that “questions relating to international relations… are not generally justiciable”. However, it was also common ground that international relations considerations could not necessarily “dictate the outcome of the court’s enquiry”. The Commissioner’s argument before the Court of Appeal on this ground (at least in part) was that, because the grant of bail “had the potential to have a profound impact on international relations between the UK and [the US]”, the Judge should have exercised extreme caution before granting the July Application. As the Court of Appeal recognised, however, this was inconsistent with the Commissioner’s acceptance that the impact on the UK’s international relationships was just one factor to be considered in the overall balancing exercise. On that basis, the only question was whether the Judge had in fact properly evaluated the security concerns raised by the US. The Court of Appeal concluded that she had, and that there was no warrant for interfering in the evaluative conclusion which she had reached.
Ground 3: US Security Assessment
The Commissioner next argued that the Judge had failed, in summary, to accord sufficient respect to the US’ assessment that the grant of the July Application would interfere with security considerations.
Again, the Court dismissed this Ground. It accepted that it was for the relevant US authorities, rather than the Judge, to take a view on whether the grant of the July Application would have adverse security implications. However, this is not what the Judge had done. She had not questioned the US view of the relevant security implications but had, quite properly, taken that into account as a factor to be weighed alongside other relevant considerations. Her overall evaluation was that the July Application should (broadly) be granted. There was no warrant for interfering with that evaluation. In deciding that the Judge had accorded due respect to the US assessment of the security implications, the Court of Appeal seems to have relied in part on the fact that the Judge rejected aspects of the July Application (such as permitting the individuals to access a social club on Diego Garcia) because of the burdens those aspects would give rise to for the Commissioner.
Ground 4: Resource Allocation
Finally, the Commissioner argued that the Judge had strayed into another non-justiciable area because granting the July Application necessarily had implications for the allocation of resources by the Commissioner (in that there would be costs for the Commissioner associated with the extended bail arrangements).
Again, the Court found little difficulty in rejecting this Ground. It concluded that the Judge had not purported “to tell the Commissioner how to spend the funds available to the BIOT”. Rather she had explicitly recognised that this was a matter for the Commissioner. As was pointed out in argument, decisions as to bail conditions regularly have cost implications for the authorities; it would be surprising indeed if judges making such decisions were unlawfully straying into non-justiciable resource allocation territory.
Comment
It has been suggested (in particular by Joshua Rozenberg: see https://rozenberg.substack.com/p/uk-loses-diego-garcia-appeal) that the Commissioner must have recognised that he was likely to lose the appeal to the Court of Appeal, and that the appeal was only pursued in an attempt to show others (such as the US Government) that the UK was exhausting all its options in seeking to prevent bail being extended. On this view, the Court of Appeal’s decision was, from a legal perspective, “obvious”.
It is true that aspects of the Commissioner’s case before the Court of Appeal seem to have been very weak. In particular, it is difficult to see how the Commissioner could reasonably have hoped to succeed on Grounds 1 or 4.
However, the Court of Appeal’s decision does give rise to some points of genuine legal interest. In discussing Ground 2, the Court of Appeal accepted that the conduct of the UK’s foreign relations is non-justiciable in itself, but that the Crown’s foreign policy priorities can be weighed in the balance against other factors in determining a bail application. Presumably the same is true in other contexts. Similarly, in relation to Ground 3, the Court accepted that it is for the executive (in this case, in effect, the US Government) to form a view as to the state’s security interests, but that its view can be weighed among other factors in an appropriate case. This distinction is one which surely merits further academic, legal and political scrutiny. Put briefly, it is difficult to see how judges can on the one hand be expected to “keep out” of foreign policy and national security questions if the executive’s views on such matters are susceptible to being balanced against other factors (such as, in this case, the interests of individuals in being able to move more freely than has hitherto been the case). The Court’s approach to this issue seems to have been largely a result of the Commissioner’s acceptance that foreign policy and national security considerations did not constitute “trump cards” but were merely factors to be weighed in the balance. The Commissioner might have stood a better chance of success, and his case would certainly have been more intellectually coherent, had that concession not been made.
The second point arising from the Court’s judgment which is of significant interest concerns the way in which the parties and the Court all viewed the July Application through the prism of “bail”. As the Court itself recognised, this case falls far from the ordinary context in which bail principles are applied. One might see this case as demonstrating the admirable ability of English legal principles to address novel factual circumstances. Others might regret that such a unique set of facts could only be addressed by an analytical framework developed in very different cases.
Edward Waldegrave is a barrsiter at 1 Crown Office Row.
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4 September 2024 by anuragdeb
Introduction
The road to hell, so the saying goes, is paved with good intentions. While not quite as dire, well-intentioned laws can nevertheless sometimes have severe consequences. In Re Mediahuis and others’ applications for judicial review [2024] NIKB 45, the Northern Ireland High Court declared 5 sections of one such well-intentioned law, the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the 2022 Act), invalid. This is the first invalidation of devolved Northern Ireland statutory provisions since the present devolution settlement (the Northern Ireland Act 1998) was enacted 26 years ago. On one level, the judgment is fairly unremarkable – courts are empowered to declare invalid any devolved statute (or statutory provision) which is found to be outwith devolved legislative competence (in this case because of incompatibility with Article 10 of the ECHR) and have done so without raising eyebrows since the advent of devolution in the UK. On a deeper level, however, the judgment and the justification for the relevant provisions of the 2022 Act show the limits of formal equality in addressing substantive injustice.
The judgment
The 2022 Act was a partial response to a wide-ranging review into the legal and policy measures around serious sexual offences in Northern Ireland. This review, carried out by retired Court of Appeal judge Sir John Gillen (the Gillen Review) made several recommendations. Among these, the relevant recommendations for this case were (1) an extension of anonymity for complainants of sexual offences beyond their lifetimes, (2) pre-charge anonymity for suspects of sexual offences and (3) a statutory prohibition on the publication of suspects’ identities pre-charge. The 2022 Act implements (1) (by extending complainant anonymity to 25 years after the complainant dies) but goes much further in implementing (2) and (3) than recommended in the Gillen Report. In respect of (2), the 2022 Act allows suspects to remain anonymous pre-charge on almost the same terms as complainants (during their lifetimes and up to 25 years after death), meaning that if a suspect is never charged, no identifying details may be published until after 25 years following their death. The reporting restriction can be lifted by a court on the application of the police, the suspect or (if the suspect has died) the suspect’s close family, personal representative or anyone interested in reporting any prohibited matters relating to the suspect. Importantly, the press may not apply to lift the reporting restriction during the suspect’s lifetime. On (3), the 2022 Act criminalises the unauthorised publication of suspect details and prescribes a custodial sentence or a fine (or both) for the offence.
Plainly, the 2022 Act represents a significant hurdle to public interest reporting. The pre-charge anonymity is just as extensive as complainant anonymity, and may only be lifted on the application of an extremely limited cohort of people. The justification offered by the Northern Ireland Department of Justice (DoJ), to put the matter mildly, lacked much (if any) persuasiveness. The DoJ pointed to the deleterious impact of publishing or reporting on a sexual offence suspect’s details before charge, with consequences ranging from reputational damage to a threat to life (Mediahuis, para 58). But the Act does not provide a general public interest defence to the offence of unauthorised publication. Such a defence would allow a court to carefully scrutinise two competing issues – any public interest in publishing a suspect’s details pre-charge and that suspect’s rights under the ECHR – and balance them. And nor does the process to lift reporting restrictions include the press as applicants. The rationale for this was virtually non-existent, with the DoJ simply saying:
“It was considered necessary to draw a distinction between who can apply before the death of the suspect and who can apply thereafter to reflect the very different circumstances that apply in those varying circumstances.“
But the Court was not provided with the reasons why this distinction was “considered necessary”. The DoJ further claimed that broadening the cohort of people who could apply to lift the reporting restriction (journalists, for example) during a suspect’s lifetime would “run contrary to the aims of key recommendation 10 [of the Gillen Report].” The relevant recommendation (in full) is:
“There should be no change in the current law concerning publication of the identity of the accused post charge. The identity of the accused should be anonymised pre-charge and the accused should have the right to apply for a judge-alone trial in the rare circumstances where the judge considers it to be in the interests of justice.“
Plainly, the DoJ’s claim about the recommendation was unsustainable.
It is therefore unsurprising that the High Court (Mr Justice Humphreys) should have found the relevant provisions to be a disproportionate interference with Article 10 of the ECHR (the freedom of speech and expression), creating a ‘chilling effect’ on public interest journalism (Mediahuis, para 102).
To be clear, laws with categorical exclusions like the 2022 Act are not, by their categorical exclusions alone, inconsistent with the ECHR. Another devolved Northern Ireland statute – the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 (which creates areas around abortion services providers for the safety of their users and staff by fining certain conduct within these areas) emerged from the Supreme Court entirely unscathed, despite containing clear categorical exclusions of certain behaviours (in the form of a strict liability offence in respect of those behaviours). But there are important differences between the 2022 Act and the Abortion Services Act. Chief among these is that fact that the former proscribes unauthorised publication with a custodial sentence, whereas the Abortion Services Act provided for a fine. Moreover, the banned behaviours in the Abortion Services Act are spatially limited to the defined safe access zones around abortion services providers; people are free to oppose such services elsewhere, so the limitations on Article 10 rights are themselves limited. By contrast, the pre-charge publication bar in the 2022 Act applies without distinction as to geography or other factor, and continues for a quarter of a century after a suspect’s death if the suspect is not charged. The limitation on Article 10 rights is thus extreme, and could only be justified (if at all) with the clearest and most compelling reasons. In this, the DoJ ultimately failed.
The erroneous focus on formal equality
The largely unsurprising ECHR assessment of the 2022 Act by the High Court aside, it is curious that pre-charge suspect anonymity and complainant anonymity should have been placed on the same formally equal plane. This is especially the case given that formal equality between complainant anonymity and (general) suspect anonymity was categorically rejected as ‘flawed’ by Sir John Gillen (Gillen Report, para 12.90). Sir John identified a number of reasons why complainants are entitled to greater anonymity – not least to encourage their participation in the criminal justice process. In the same vein, publishing or otherwise disclosing the identity of suspects of sexual offences encourages other potential complainants to come forward in a society where the conviction rate for such offences remains, in the words of Sir John ‘troublingly’, low (by the time Sir John had published his findings, the conviction rate for sexual offences in Northern Ireland had also been falling, see Gillen Report pg. 10).
Moreover, the social stigma associated with being a survivor of sexual violence or abuse acts as a further barrier. Within his Report, Sir John recognises the myriad ways in which different groups of survivors – women of colour (para 13.76), people with disabilities (e.g. paras 13.46 and 13.55) and men (para 13.148) – experience stigma.
All of these factors combine to highlight one of the main themes underlying the Gillen Report and the implementation of its recommendations by the DoJ over the years since the Report’s publication: the need to ensure that ‘one of the worst violations of human dignity’ – sexual crime – is not compounded by the very system designed to hold its perpetrators to account. This is not to discount the experiences of those whose details are published despite not being charged, and the indignities they suffer as a result. But fundamental to this complex and highly sensitive area is the recognition that different people experience different indignities. The formal equality which characterised the invalidated provisions of the 2022 Act, however, completely failed to recognise this reality. Instead, it effectively flattened the many accounts of survivors and suspects found in the 700-odd pages of the Gillen Report into a highly simplistic equation: whatever anonymity was conferred on complainants must also (mostly) be conferred on suspects while they remain uncharged.
This flat plane of formal equality ultimately imperilled the very provisions which were intended to protect the dignity of those people who, whether voluntarily or otherwise, come into contact with the criminal justice system for sexual offences. In the aftermath of the High Court’s judgment, the Northern Ireland Minister of Justice initially indicated that she was considering an appeal, before confirming that no appeal would be pursued. The resultant situation is that the relevant provisions of the 2022 Act – sections 12-16 – are invalid, so there is no bespoke statutory pathway to ensure suspect anonymity at the pre-charge stage (the UK Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5 recognises an ECHR-derived reasonable expectation of privacy at the pre-charge stage).
Without impugning the good intentions of the DoJ, the Assembly and the Northern Ireland Executive, Mediahuis and others should give Ministers and Departments pause for thought. Addressing the substantive (and sometimes life-altering) injustices which are experienced as a result of or in relation to sexual crime requires much greater sensitivity than a simple formal equality.
Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.
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2 September 2024 by Catherine Churchill
In UK News
Following May’s High Court judgment finding former Home Secretary Suella Braverman’s protest regulations unlawful, human rights organisation Liberty claimed last week that the Home Office has decided to continue its appeal. The case, spearheaded by Liberty, sought to challenge the lowering of the threshold for “serious disruption” during protest from “significant” and “prolonged” to “more than minor” by statutory instrument – which opponents claim is an abuse of secondary legislation. Despite the new Labour government initially pausing the former Tory government’s plans to appeal, Liberty have stated that the Home Office have recommenced the appeal after talks to resolve the dispute failed. The director at Liberty, Akiko Hart, has said she believes the legislation to be “undemocratic, unconstitutional and unacceptable” and that the decision to appeal shows “disregard for the rule of law”. Liberty have stated that the appeal will be heard later this year, with a date yet to be confirmed. A spokesperson for the Home Office has said that “the right to protest is fundamental to our democracy, and all public order legislation must balance this right. However, we disagree with the court’s ruling in this case and have appealed their decision.”
Scotland’s Chief Inspector of Prisons has claimed that the country’s “broken” prison system results in inmates being “set up to fail”. Having stepped down from her role at the end of August, Wendy Sinclair-Giebens expressed concerns about the state of Scottish prisons: “The prison service is underfunded and under-resourced for what the public and judiciary expect of it, yet it’s a very big organisation having to deal with the most marginalised, violent and mentally ill in society”. She revealed there is a pool of inmates unable to move further towards parole due to the “huge” waiting lists for the mandatory behavioural programs. The news follows a 2023 ruling by an Irish judge barring the extradition of a man to Scotland on the basis of a “real and substantial risk of inhuman or degrading treatment”, largely a result of the overcrowding of Scottish prisons. The ruling was, however, later overturned on appeal following express assurances from the Crown Office in Edinburgh that the prison would implement a tailored care plan for the respondent. Last week also saw the release of 477 Scottish prisoners as part of an emergency scheme to ease prison overcrowding as Scotland’s justice secretary revealed the prison population has risen by 13% in the last year.
The annual report of the Committee on Fuel Poverty published last week has revealed that fuel poverty is “flatlining rather than falling”. Despite a reduction in fuel poverty of 40% between 2010 and 2019, the last five years has not seen fuel poverty fall “to any meaningful extent”. The government has identified the groups at highest risk of being unable to afford energy and “living in a cold home” as those living in the private rented sector, ethnic minority households, and households using pre-payment meters – the government has emphasised the importance of aligning fuel poverty mitigation measures with wider equality goals. The report follows the controversial announcement by the new Labour government that universal winter fuel payments to pensioners will be scrapped. The energy minister, Miatta Fahnbulleh, has been conducting meetings to consider support measures for households experiencing fuel poverty. The annual report emphasises that it “is not defeatist. The Committee believes fuel poverty can be beaten. But for too many low-income households, the unaffordability of bills, especially in the coldest months, is all too real. We foresee that targeted financial support, possibly including the use of social tariffs, for vulnerable and low-income households may be needed for some years to come.”
In International News
A new “morality” law introduced by the Taliban last week has been met with condemnation by the UN and various human rights organisations. Titled “The Propagation of Virtue and Prevention of Vice Law”, the law seeks to prevent leading men into “vice” by requiring women to be completely veiled in public. Women are also prevented from singing or reading aloud where they could be heard by a non-family member, as well as looking directly at men to whom they are not related. The laws state that “whenever an adult woman leaves her home out of necessity, she is obliged to conceal her voice, face, and body”. The Chief Spokesperson for the UN Office of the High Commissioner for Human Rights has stated that the law “effectively attempts to render [women] into faceless, voiceless shadows” and called for its immediate repeal. The head of the United Nations mission in Afghanistan, Roza Otunbayeva, said that the law reveals a “distressing vision” of the country’s future by extending “the already intolerable restrictions on the rights of Afghan women and girls”. The law comes in defiance of Security Council Resolution 2681 (2023) which called on the Taliban to “swiftly reverse its policies and practices restricting women and girls’ enjoyment of their human rights and fundamental freedoms”. It has been reported that Afghan women are posting videos online of themselves singing in protest against the new restrictions.
A UN report published on Friday has further exposed the ongoing human rights violations in Libya. The accompanying press release slams the “lack of accountability and years of impunity” by those committing the violations as further fuelling instability in the country. The report investigates unlawful killings, torture, kidnappings, and sexual violence committed by Al-Kaniyat – a local militia who have conducted what has been termed by the UK Government a “reign of terror” in the region of Tarhuna. The report reveals “serious violations of international humanitarian law”, calling for accountability, the delivery of justice, and effective reparations for victims. The report argues that “leaving root causes and drivers of conflict unaddressed […] will serve to fuel toxic cycles of violence and revenge between communities.” The UN High Commissioner for Human Rights, Volker Türk, expressed a similar sentiment, stating that “the impunity must end – there must be accountability in accordance with international due process and fair trial standards.”
The Swiss Federal Council voted last Wednesday to affirm Switzerland’s rejection of the groundbreaking KlimaSeniorinnen ECHR judgment from last April, which found that Switzerland was breaching human rights through climate change inaction. Despite previous calls by the dominant party – the Swiss People’s Party – for Switzerland to leave the Council of Europe, the Swiss Federal Council instead reaffirmed in a press release that “the ECHR and membership of the Council of Europe, whose fundamental values of the protection of human rights, democracy and the rule of law include, remain of great importance to Switzerland”. However, it was added that “the case law must not lead to an extension of the scope of the ECHR”. The move has been criticised by the Center for International Environmental Law as an “embarrassment” for Switzerland, who it claims have missed an opportunity to “strengthen its climate policy in accordance with undisputed science”.
See Rosalind English’s post on the KilmaSeniorinnen ECHR judgment here.
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26 August 2024 by Emilia Cieslak
In UK news
The Children’s Commissioner for England, Dame Rachel de Souza, has published a report which found that black children are four times more likely to be strip searched compared to national population figures. The report analysed a dataset of all the strip searches conducted by all 44 police forces in England and Wales from January 2018 to June 2023. The report found that in almost half (45%) of the strip searches an appropriate adult was not confirmed to be present and the youngest child searched was eight years old. The majority (88%) of searches were conducted on suspicion of drugs and in 47% of cases the search resulted in “no further action”. The Commissioner argues that this calls into question their necessity and that strip searches should only be carried out on children where there is a clear and immediate risk of harm to themselves or others.
The UN’s Committee on the Elimination of Racism (CERD) has recommended that the UK government “implement comprehensive measures to curb racist hate speech and xenophobic rhetoric, including on the part of political and public figures”. The CERD highlighted the riots which occurred in the UK in August 2024, after the Southport stabbings in which three young girls were killed and emphasised the role of social media disinformation regarding the perpetrator’s identity in stoking the riots. The government has responded to the disorder by activating Operation Early Dawn. This is an emergency action to manage the transfer of prisoners as hundreds of people have been charged for involvement in the riots. Under Operation Early Dawn, defendants will only be summoned to a magistrates court when a cell in the prison estate becomes available, and until then, if they are remanded in custody, they will be held in police station cells.
The Home Secretary, Yvette Cooper, has announced new measures to significantly increase the removal of failed asylum seekers. These measures include recruiting 100 specialist intelligence officers to the National Crime Agency to disrupt human smuggling gangs, new measures to target employers who hire illegal workers, and increasing capacity at the Campsfield and Haslar Immigration Removal Centres.
In international news
The Ukrainian Parliament (Verkhovna Rada) has passed legislation to ratify the Rome Statute of the International Criminal Court (ICC) making Ukraine a state party. The Ukrainian Foreign Minister Dmytro Kuleba has stated that the move shows Ukraine’s “unwavering commitment to strengthening international justice” and to work effectively with the ICC to “ensure comprehensive accountability for all Russian atrocities committed in the course of Russian aggression”. The ratification of the Rome Statute is also a requirement for Ukraine to join the European Union, as set out in the Association Agreement between the European Union and Ukraine. The ICC has so far issued arrest warrants for Vladimir Putin, Commissioner for Children’s Rights Maria Lvova-Belova, former Minister of Defence Sergei Shoigu, and Chief of the General Staff of the Armed Forces and First Deputy Minister of Defence Valery Gerasimov.
The UN Special Rapporteur on Torture, Alice Jill Edwards, has expressed concern after video footage was leaked of an Israeli Defence Forces (IDF) soldier sexually assaulting a Palestinian detainee. The Special Rapporteur has urged that “all alleged crimes committed within the context of this terrible war must be investigated transparently and impartially, and those responsible held accountable by civilian courts of law”. The Israeli NGO B’tselem has published a report based on the testimonies of 55 Palestinian detainees who described systematic abuses including violence, sexual assault, and denial of medical treatment. As of July 2024, there are 9,623 Palestinians held in Israeli prisons, 4,781 of which are held in “administrative detention” which means they are held without charge.
In the courts
The UK government has lost an appeal against the decision that it cannot restrict the movement of asylum seekers who inadvertently arrived at the Diego Garcia military base. In October 2021, 47 Sri Lankan Tamil asylum seekers, including a number of children, were rescued at sea by the Royal Navy and brought to the military base which is classified as a British overseas territory. Since then they have been restricted to a small area of the island due to the “operational, security, health and safety risks” if they were granted freedom of movement. The court rejected the government’s grounds of appeal, inter alia, that the judge acted unreasonably in failing to place adequate weight on the authorities security concerns. This long-standing litigation has been followed and reported by Joshua Rozenberg KC (hon), and his commentary is available here.
The Federal Court of Australia has determined that Australian case law has consistently held that sex is “changeable and not necessarily binary”. Ms Roxanne Tickle, a trans woman, sued Giggle for Girls, a social media app for communication between women, alleging unlawful gender discrimination when she was barred from having an account on the app. The court held that the claim of indirect gender discrimination succeeds, as to gain access to the app users had to send a selfie and the reviewer determined that Ms Tickle did not have the appearance of a cisgender woman.
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12 August 2024 by Catherine Churchill
In UK News
Riots continued throughout the UK last week, sparked by the attack and murder of 3 children in Southport on July 29th. The riots have been linked to a widely circulated online rumour falsely identifying the perpetrator as a Muslim asylum seeker. UK Chief Executive for Amnesty International, Sacha Deshmukh, has stated the riots to be caused at root by “racism, Islamophobia and xenophobia”. Prime Minister Keir Starmer has called the rioting an “assault on the rule of law and the execution of justice” and made clear that those involved will not “be allowed to hide behind the legitimate right to protest”. The Crown Prosecution Service revealed on Friday via a post on X (formerly Twitter) that 159 individuals have been charged in connection with the “violent disorder” across the country, with a total of 741 arrests having been made. The news follows Justice Minister Heidi Alexander’s announcement that the process of opening 500 prison places for those involved in the riots is underway.
On Friday, the UK Government announced fresh sanctions against Belarus in response to ongoing human rights violations in the country. The sanctions have been announced on the four-year anniversary of the “deeply flawed” 2020 presidential elections in Belarus; elections which Foreign Secretary David Lammy stated have resulted in “over 40,000 citizens arrested on trumped up political charges, civil society and independent media trampled and a regime with no regard for democracy or human rights”. The Viasna Human Rights Center, a Belarusian NGO, claims that as of August 11, Belarus holds 1385 political prisoners including journalists and human rights activists. The new sanctions raise the total number against Belarus to over 200 individuals and entities. The announcement also revealed a funding package of £2.5 million to support human rights and civil liberties in Belarus.
In Other News
Unrest continues in Venezuela following the contested re-election of President Nicolas Maduro on July 28th. US Secretary of State Anthony Blinken has published a statement arguing that there is “overwhelming evidence” that the opposition leader, Edmundo Gonzalez Urrutia, was the true victor. The statement cites the fact that the opposition have published over 80 percent of the tally sheets from polling stations across Venezuela showing Urrutia to have won by an “insurmountable margin”, further corroborated by exit polls. The announcement of Maduro’s re-election sparked protests across the country which have continued into this week. In a press conference on Tuesday, Maduro announced that over 2229 individuals had been arrested in connection with the protests, calling those involved “terrorists”. In a press conference last week, a spokesperson for UN High Commissioner for Human Rights Volker Turk expressed concern over the “numerous cases of arbitrary detention”, including that of peaceful protestors, human rights defenders, children, and journalists. Amnesty International sent an open letter on Friday to the Prosecutor of the International Criminal Court calling for his “resolute and immediate action” against the crimes being committed under international law by Venezuelan authorities. Amnesty argue in the letter that the ongoing “tragedy is a consequence of the impunity for serious human rights violations and crimes against humanity that Maduro’s government has been committing for years.”
Reports have surfaced that in only two days last week, Iranian authorities executed a minimum of 29 individuals. The UN Office of the High Commissioner have verified that a further 38 people were executed in Iran over the course of July, raising the total for 2024 thus far to 345. The Office raised concerns in particular about the “lack of due process and fair trial standards”, with several executions occurring with “neither the prisoner’s family nor legal counsel being informed”. NGO Iran Human Rights has reported that 26 men were executed in a group hanging outside Ghezelhesar Prison – an execution the scale of which has been unparalleled since 2009. Amnesty have revealed that at least one of the prisoners executed in the spree was imprisoned in connection with the Woman Life Freedom protests that erupted following the murder of Mahsa Amini in 2022.
The Bulgarian Parliament passed an anti-LGBT amendment last Wednesday to the country’s education laws, banning the “propaganda, promotion, or incitement in any way, directly or indirectly, in the education system of ideas and views related to non-traditional sexual orientation and/or gender identity other than the biological one.” The amendment was passed by an overwhelming majority with 159 votes in favour and only 22 against. LGBT rights group Forbidden Colours have stated they believe the move represents Bulgaria “adopting tactics from Russia’s anti-human rights playbook”, a development they call “deeply troubling”. The organisation have also raised questions about the swiftness with which the amendment occurred, both readings occurring on a single day – raising “serious concerns about the legislative process and the intent behind such haste”. A spokesperson for the EU Commission told POLITICO last Thursday that while the EU is aware of the amendment, they were unable to comment. The spokesperson however reiterated that the Commission “remains steadfast in its commitment to tackling discrimination, inequalities and challenges faced by LGBTIQ individuals.”
In the Courts
Last Wednesday, the UK Supreme Court rejected Shamima Begum’s permission to further appeal the removal of her British citizenship. Ms Begum appealed on four grounds: trafficking, invoking Article 4 ECHR; deprivation of the right to make representations; a failure to ensure good community relations, required per s.149 of the Equality Act; and de facto statelessness. Permission to appeal was refused on all four grounds, concluding that “the grounds of appeal do not raise an arguable point of law”. In response to the ruling, Maya Foa, director of human rights NGO Reprieve, has stated that “exiling British nationals like Ms Begum is about politics, not the law”. The decision signifies the exhaustion of Ms Begum’s legal remedies in the UK. However, Ms Begum’s lawyers told the BBC that they intend to take the case to the European Court of Human Rights in Strasbourg.
The Dublin High Court found last week that the Irish Government’s treatment of asylum seekers breaches the EU Charter of Fundamental Human Rights. Mr Justice Barry O’Donnell stated in judgment that in failing to support the accommodation needs of applicants for asylum, “the State has breached the rights of those persons as provided for in Article 1 of the Charter of Fundamental Rights of the European Union” – the right to human dignity. It was held that central to respecting the human rights of asylum seekers is the maintenance of “an adequate standard of living which guarantees their subsistence and protects their physical and mental health where they do not have the means to provide for themselves”.The judgment has been welcomed by the UN Refugee Agency, who have now called on the Irish Government to take “immediate action”. The Court did, however, decline to grant the mandatory orders sought by the applicants, the Irish Human Rights and Equality Commission, on the basis that it was not satisfied that there was evidence the Government would ignore its obligations.
US federal judge Mark Walker ruled last Thursday in Claire v Florida DMS that Florida’s ban on transgender healthcare access for state employees violates their civil rights. Florida has had a categorical ban on coverage of healthcare for “gender reassignment or modification services or supplies” of state employees for decades, which has now been found to be in violation of Title VII of the Civil Rights Act of 1964 as a form of unlawful discrimination on grounds of sex since it denies transgender employees coverage for medically necessary treatment for gender dysphoria. Quoting a judgment from 2020, Judge Walker reiterated that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” as “the first cannot happen without the second”. The American Civil Liberties Union (ACLU) praised the judgment in a press release, with Staff Attorney Samantha Past stating that “discrimination has no place” in Florida. The ACLU “are hopeful that this decision will encourage a commitment from the state to treating members of the transgender community with the respect they deserve”.
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5 August 2024 by Emma-Louise Fenelon
Robert Mills takes listeners through three recent cases on material contribution:
- CNZ v Royal Bath Hospitals NHSFT & The Secretary of State for Health and Social Care [2023] EWHC 19 (KB)
- CDE v Surrey and Sussex Healthcare NHS Trust [2023] EWCA Civ 1330
- Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377
John Whitting KC outlines developments in the law of informed consent:
- Bilal and Malik v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605
- McCulloch and others v Forth Valley Health Board [2023] UKSC 26
And the episode concludes on a discussion of expert evidence:
- Woods v Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB)
- CE (Cameroon) [2023] UKAITUR PA011122020
The podcast has previously covered expert evidence in the following episodes:
- Disaster Avoidance for Experts with Margaret Bowron KC here
- Disaster Avoidance for Experts with Neil Sheldon KC here
Law Pod UK is published by 1 Crown Office Row. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter.
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5 August 2024 by Emilia Cieslak
In UK news
The Minister for Immigration and Citizenship, Seema Malhotra has announced the opening of the Afghan Citizens Resettlement Scheme Pathway 1 Stage 2: Separated Families. This is a reunification scheme for families separated during Operation Pitting. This was the operation in which vulnerable people such as the LGBT community, women’s rights activists and judges were evacuated from Kabul by the British government after the Taliban takeover of Afghanistan in August 2021. Persons resettled in the UK can submit an “expression of interest” to be reunited with a spouse or unmarried partner or their dependent children aged under 18 at the time of the evacuation. Children separated from their parents during the evacuation can apply to be reunited with their parents and siblings aged under 18 at the time of the evacuation. The Scheme is open now and the deadline to submit an “expression of interest” is 30 October 2024.
The Secretary of State for the Home Department, Yvette Cooper has announced that the Migration Advisory Committee (MAC) has been asked to review, among other things, the minimum income requirement for family and partner visas. The minimum income requirement rose from £18,600 per year to £29,000 per year in April 2024, and it is planned to rise to £34,500 later this year and £38,700 in 2025. The Home Secretary stated that the MAC review will make sure that the Immigration Rules “balance a respect for family life whilst also ensuring the economic wellbeing of the UK is maintained”. The campaign group Reunite Families UK has launched a legal challenge against the planned rise to £38,700 per year, arguing, among other things, that it will disproportionately impact women, members of ethnic minorities and young people.
In international news
As the civil war in Sudan continues, reports are coming out regarding famine and mass sexual violence. The UN’s World Food Programme (WFP) has identified 14 areas at risk of famine, including conflict hotspots Darfur and Khartoum. The WFP estimates that 26 million people, more than half the population, are now facing acute hunger and 755,000 people are facing catastrophic conditions with deaths caused by starvation already being recorded. Human Rights Watch has published a report documenting widespread rape and sexual abuse committed by the warring parties, in particular the Rapid Support Forces, with local healthcare providers reporting survivors of sexual violence between the ages of 9 and 60. An explainer on the origins of the conflict is available here.
On 01 August 2024, the EU AI Act (also known as Regulation 2024/1689), the world’s first piece of legislation on artificial intelligence, entered into force. The act splits the different uses of AI into four categories each with a different level of regulation. Category one are video games and spam filters which pose minimum risk and so are not regulated. Category two are chatbots, deepfakes and other uses which present issues regarding transparency. The regulation will require developers to make sure users are aware that they are interacting with AI. Category three are high risk uses such as transport, marking exams, recruitment and granting of loans, which will be strictly regulated. Category four are unacceptable risk uses such as social scoring, predictive policing, emotional recognition and cognitive behavioural manipulation, which are banned in their entirety under the act. The bans on prohibited practices will be applied in the first six months of the Act being passed, and the other regulations will be brought in over the next two years.
The International Criminal Court has allowed individuals and states to submit amicus curiae briefs regarding its upcoming decision whether or not to issue arrest warrants for Israeli PM Benjamin Netanyahu and Israeli Minister of Defence Yoav Gallant. The UK was the first state which declared that it would provide a brief arguing against the issuing of an arrest warrant, however, the government has since announced that it will be dropping their challenge. All amicus curiae briefs regarding this matter are available here. The UN Human Rights Office has published a report regarding arbitrary and prolonged detention of Palestinians by the State of Israel. Detainees report abuse including blindfolding, deprivation of food, electric shocks, being burnt with cigarettes and sexual violence against both men and women.
American journalist Evan Gershkovich has been released by Russia in the biggest prisoner swap between the USA and Russia since the Cold War. In March 2023, Gershkovich was arrested by Russia’s Federal Security Service on espionage charges and sentenced to 16 years in prison. His arrest and subsequent sentence was condemned by leading human rights organisations and UN Special Rapporteurs on human rights in the Russian Federation and the right to freedom of opinion and expression. The prisoner swap saw the release of 16 people from Russia, including influential opposition figure Vladimir Kara-Murza, journalist Alsu Kurmasheva and activist Sasha Skochilenko who was sentenced to seven years in a penal colony for affixing anti-war stickers on supermarket shelves as a form of protest. The USA released Russian detainees including Vadim Krasikov, a hitman who worked for Russia’s Federal Security Service.
In the courts
The High Court has ruled that the emergency ban on the use of puberty blockers as medication for trans children through private and EU prescriptions is lawful. The campaign group TransActual and an anonymous 14-year-old trans girl now unable to access puberty blockers, sought to challenge the ban arguing, amongst other things, that the Secretary of State did not have sufficient medical evidence to institute the ban. The court held that the Secretary of State was entitled to rely on the Cass Review, which recommended a clinical trial to determine the effects of puberty blockers, and held that “this decision required a complex and multi-factored predictive assessment, involving the application of clinical judgment and the weighing of competing risks and dangers, with which the Court should be slow to interfere”. The court also dismissed arguments that the ban was introduced with an unfair failure to consult and arguments based on Article 8 ECHR. In response to the ruling the British Medical Association (BMA), the trade union and professional body for doctors and medical students in the UK, has called for a pause in the implementation of the Cass Review and questioned the “weaknesses in the methodologies used in the [Cass] Review”.
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25 July 2024 by Rosalind English
A tale of small win against airline leads to big Supreme Court ruling on pre- and post- Brexit compensation. In Episode 203, Rosalind English discusses with David Hart KC the veritable maze that must be navigated to establish legal rights between January 2020 when the UK left the EU and end of December 2020 when the various phases of disengaging from EU law were assimilated into the Withdrawal Acts.
Law Pod UK is published by 1 Crown Office Row. Supporting articles are published on the UK Human Rights Blog. Follow and interact with the podcast team on Twitter.
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