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The Prime Minister has courted controversy yet again this week with a new Brexit bill that appears to violate international law. The proposed Internal Markets Bill would give ministers certain powers relating to Northern Ireland in respect of customs rules and state aid. In particular, it would give them powers to modify or “disapply” rules relating to the movement of goods which will come into force from 1st January 2021, if the UK and EU are not able to agree a trade deal. These were key issues under the Northern Ireland Protocol that was negotiated as part of the Withdrawal Agreement concluded on 31 January this year. In a striking admission, Northern Ireland Minister Brandon Lewis stated in Parliament that this breach of the Withdrawal Agreement does indeed breach international law, but only “in a very specific and limited way”. The bill is to be formally debated by MPs today.
In a further move to avoid the UK’s international law obligations, the Government has indicated that it is planning to “opt out” of parts of the European Court of Human Rights. This proposal is apparently made in order to enable the Government to accelerate deportation of asylum-seekers, and to minimise legal action against British forces overseas, which the Government identifies as key areas where the judges of the European Court have “overreached”. The proposals have provoked outrage from Labour and the Liberal Democrats.
The Joint Committee on Human Rights’ inquiry into racism and human rights in the UK heard evidence this week from ClearView Research. The evidence provided from surveys indicates that black people in the UK overwhelmingly do not think they receive equal human rights protection. According to the data, 75% of black people in the UK do not believe their rights are equally protected compared to white people; 85% are not confident they would be treated the same as a white person by the police; and 60% do not believe their health is equally protected by the NHS compared to white people.
The British Institute of Human Rights has released a report which raises new concerns about the operation of the care sector during the pandemic. The report states that more than 75% of social care staff were not given proper training to deal with the impact of COVID-19, in particular in relation to human rights law and coronavirus emergency powers – despite the wide-ranging changes made by the government to the legal framework which governs the care sector, including suspending duties under the Care Act, changing vulnerable individuals’ care packages, and banning non-essential visits to care homes. The report also noted that more than 60% of vulnerable individuals with care and support needs were not informed of the legal basis of the drastic changes made to their care packages.
As the school year gets going again, grammar schools will need to be cautious in complying with their duty to make reasonable adjustments, following a legal challenge funded by the Equality and Human Rights Commission. The challenge was brought by a visually impaired student who was unable to sit an 11+ entry exam for a Berkshire grammar school when the school refused to make adjustments specified in his Education Health and Care Plan, on the basis that they were too expensive; the First-tier Tribunal found for the student.
In the courts
With the UK courts in recess, there are very few reported judgments this week. However, there are some noteworthy judgments from the European Court of Human Rights:
GL v Italy: a child diagnosed with nonverbal autism was entitled to specialised assistance under Italian law. The local authorities did not provide this for 2 years, while she was in primary school, on the basis of lack of resources. The ECtHR found that there had been a violation of Article 14 read with Article 2 of Protocol 1 (right to education). In particular, the court noted that the Italian courts had failed to consider whether there was a fair balance between the child’s educational needs and the authorities’ capacity, and did not verify how the effect of budgetary restrictions compared for non-disabled and disabled children. The court further observed that the national authorities had not considered the possibility that they could address their lack of resources by reducing their educational offer accordingly, such that it could be distributed equitably between non-disabled and disabled students. In giving judgment, the court emphasised that budgetary restrictions must impact the education available for disabled and non-disabled pupils the same way; and that discrimination of this kind is all the more serious when taking place in compulsory primary education.
NS v Croatia: the applicant’s daughter and partner had died in a tragic car accident, but their daughter survived. In the aftermath of the accident, there was a custody battle between the applicant and the child’s uncle; following confidential court proceedings, the uncle was given custody. The applicant subsequently appeared on a national TV show, where she discussed the proceedings, and expressed criticism of the Croatian child protection system on a TV show; she was convicted of a criminal offence for breach of confidentiality in respect of the court proceedings. The court held that there had been a violation of Article 10. The domestic courts should have considered the fact that most of the information disclosed in the TV report was already known to the public, and that the applicant had been appearing on TV in good faith to raise serious concerns about the malfunctioning of the country’s social welfare services.
Yordanovi v Bulgaria: two Turkish-Muslim brothers decided to set up an association for the integration of Turkish-speaking Bulgarians. In pursuit of this aim, they built a monument on private land to commemorate soldiers killed in the 19th Century Russo-Turkish War, and set up the ‘Muslim Democratic Union’ at an assembly in the centre of town. Police told them the assembly was illegal, but it went ahead; criminal proceedings were subsequently brought for setting up a political organisation on a religious basis, and for breach of the peace in setting up the monument. The brothers were given a suspended prison sentence. The court held that this was a violation of Article 11. The authorities had many other options: they could refuse to register the would-be political party, without which registration the party would not be able to engage in any official activity; and they could have dissolved the party if it were declared unconstitutional by the Constitutional Court. A criminal sanction had been a disproportionate interference with freedom of expression and freedom of association, and was not ‘necessary in a democratic society’.
Timakov and Ooo Id Rubezh v Russia: the applicant and his newspaper had published an article making allegations of corruption against the Governor of the Tula region in Russia. The Governor brought civil and criminal proceedings, and substantial damages awards were made – sufficiently substantial that some of the applicant’s household items were taken to fulfil them. The Governor was ultimately found guilty of bribery and corruption and sent to prison. The court found that there was a violation of Article 10. In reaching this conclusion, the court noted a laundry list of failings in the Russian courts: the courts had not sought to balance the governor’s interest in protecting his reputation against the importance of public transparency and accountability; the courts had not considered the applicant’s role as a journalist, that these were matters of public concern, or that he had acted in good faith; the courts had not attempted to consider whether the statements complained of were statements of fact or value judgements. The court further emphasised the chilling effect of such disproportionately high awards, with the awards from the civil proceedings having been substantially higher than the fine in the criminal proceedings.
BG and others v France: Eastern European asylum-seekers with young children were accommodated by the French authorities in a set of tents in a parking lot, for a period of approximately 3 months. They alleged that there had been a violation of Article 3 and 8, insofar as they had not benefited from the material and financial support provided for under national law. The court rejected their claim, noting that the applicants had received constant food aid; medical monitoring, vaccination, and education had been provided for their young children; and their asylum application had been examined under an accelerated process.
Shuriyya Zeylanov v Azerbaijan: this case highlights serious failings in the Nakhchivan Autonomous Republic of Azerbaijan. The applicant’s son had been charged with treason, having been accused of collaboration with Iranian intelligence forces, and died in custody from an alleged pulmonary embolism. The applicant claimed that the government had violated Articles 2 and 3. The court upheld his claim, under both the substantive and the procedural limbs. The government had failed to convincingly account for the circumstances of the victim’s death, and it appeared likely that injuries visible on video footage of his body had been occasioned by torture. Likewise, the government had failed analyse the causal links between his injuries and his death, or to cooperate with the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment; and it appeared that the government had attempted to prevent an effective investigation into the matter, by levelling accusations of defamation against the deceased’s family.
On the UKHRB
Sapan Maini-Thompson discusses a High Court challenge to conditions at Brook House Immigration Removal Centre
Philippa Collins considers the implications of the new pattern of home working for privacy rights under the European Convention of Human Rights
Elliot Gold examines a judgment of the European Court of Human Rights on Article 3 ECHR in the context of a rape investigation
In EBB and others v The Gorse Academies Trust [2025] EWHC 1983 (Admin), the Honourable Mrs Justice Collins Rice gave judgment in a multi-faceted, rolled-up permission and judicial review hearing concerning three high school students’ experiences of being disciplined within their school (“the School”).
Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party)
Where an individual had a civil right being determined in one set of proceedings for the purposes of Article 6, he would be able to claim protection under that provision in any other proceeding involving him if the outcome of that other would have a substantial effect on the determination of that civil right.
SUMMARY
The claimant had been employed as a teaching assistant at the appellant school. As a result of alleged incident of a sexual nature with a pupil, disciplinary procedures were instigated against him which culminated in the hearing before the committee. He was told that in these hearings employees could be represented by a colleague or a trade union representative but that any other form of legal representation would not be permitted.
The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has unanimously rejected challenges to the Scottish government’s controversial named person scheme. Three individual petitioners, as well as The Christian Institute, Family Education Trust, The Tymes Trust, and Christian Action Research and Education (CARE), contested the appointment of named persons and the scheme’s provisions for data sharing.
The Named Person Scheme
The named person scheme is part of a package of measures introduced by the Children and Young People (Scotland) Act 2014. According to the Scottish government, the aim of the legislation is to ensure that the rights of children are respected across the public sector. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
A relatively quiet week on the news front, with courts having a well-earned Easter break. Just a few items to focus on, with commentary appearing following the US Supreme Court’s oral hearing on the same-sex marriage. The Employment Tribunal has found that conference motions and debates surrounding Israeli boycotts do not constitute anti-Semitism; and assistance is out there for litigants in person following the enactment of LASPO.
The Upper Tribunal decision in of C&C v Governing Body [2018] UKUT 269 (AAC) has provided important clarification to the scope of the Equality Act 2010 in an education context.
A 13-year-old boy, L, was excluded for physical violence at school. L suffered from autism, anxiety and Pathological Demand Avoidance; it was common ground that the episodes of violence were as a result of these conditions.
It was also common ground that, but for the effect of Reg. 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (‘the 2010 Regulations’), L would meet the definition of having a ‘disability’ found at section 6 of the Equality Act 2010 (‘EA 2010’), as he had physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
But section 6 of the EA 2010 must be read in conjunction with the 2010 Regulations. The effect of Reg.4(1)(c) of the 2010 Regulations is to carve out from the definition of ‘disability’ those ‘impairments’ which manifest themselves in:
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
(e) voyeurism.
In C&C the school argued that L’s violent behaviour amounted to ‘a tendency to physical…abuse of other persons’ for the purposes of the 2010 Regulations, thereby removing the protection from discrimination that he would otherwise be afforded by the EA 2010.
The Law
Previous cases had decided that behaviour which amounted to a ‘tendency to physical…abuse’ was not protected under the Equality Act 2010 in the case of children with behavioural difficulties.
However, C&C reversed this line of authority.
The First Tier Tribunal had found, in line with the established case law, that L did not fulfil the definition of ‘disability’ under section 6 EA 2010 by virtue of the operation of Reg. 4(1)(c).
On appeal, Tribunal Judge Rowley was tasked with deciding whether the current interpretation of Reg. 4(1)(c) of the 2010 Regulations was compatible with Article 14 read with Article 2 of Protocol 1 (A2P1).
On 8 April 2021, the Weimar District Family Court ruled in Amtsgericht Weimar, Beschluss vom 08.04.2021, Az.: 9 F 148/21) that two Weimar schools were prohibited with immediate effect from requiring pupils to wear mouth-nose coverings of any kind (especially qualified masks such as FFP2 masks), to comply with AHA minimum distances and/or to take part in SARS-CoV-2 rapid tests. At the same time, the court ruled that classroom instruction must be maintained.
This is the first time that expert evidence has now been presented before a German court regarding the scientific reasonableness and necessity of the prescribed anti-Corona measures.The expert witnesses were the hygienist Prof. Dr. med Ines Kappstein, the psychologist Prof. Dr. Christof Kuhbandner and the biologist Prof. Dr. Ulrike Kämmerer were heard. 2020NewsDe has published a summary of the judgment, the salient parts of which are set out in full below (translation by DeepL).
The reason for highlighting this judgment in such detail is because of the consequences reported by the news website to the judge of his decision. According to 2020NewsDe, “the judge at the Weimar District Court, Christiaan Dettmar, had his house searched today [26 April 2021]. His office, private premises and car were searched. The judge’s mobile phone was confiscated by the police. The judge had made a sensational decision on 8 April 2021, which was very inconvenient for the government’s policy on the measures.” In a side note on the fringes of proceedings with other parties, continues 2020NewsDe, “the decision in question has been described as unlawful by the Weimar Administrative Court without comprehensible justification.”
A cautionary note: I have been informed by Holger Hestermeyer, Professor of International and EU Law at King’s Law School (@hhesterm), that cases quashing administrative acts (like the one at issue in the AG Weimar case) go to administrative courts in Germany. The case, says Professor Hestermeyer
had, indeed, been brought to the administrative court, but the court had not quashed the administrative act. The attorney then (according to Spiegel reports) was looking for plaintiffs to bring the case before this particular judge via telegram (competence is based on first letters of surnames, so the attorney was looking for plaintiffs with the right surname). The judge then assumed his competence (unprecedented), ruled not just for the plaintiffs but all kids at the school (peculiar), excluded an oral hearing (hmmm), rejected all mainstream scientific advise to base the judgment exclusively on the minority of experts rejecting all such measures (again hmmm) and excluded an appeal.
So there are important procedural problems with this judgment which must be borne in mind when reading my summary with excepts both from the original judgment and the report by 2020De below.
The court case was a child protection case under to § 1666 paragraph 1 and 4 of the German Civil Code (BGB), which a mother had initiated for her two sons, aged 14 and 8 respectively, at the local Family Court. She had argued that her children were being physically, psychologically and pedagogically damaged without any benefit for the children or third parties. At the same time, she claimed this constituted a violation of a range of rights of the children and their parents under the law, the German constitution (Grundgesetz or Basic Law) and international conventions.
President Putin has ordered his troops in Ukraine to cease fire for 36 hours over Orthodox Christmas and has urged Ukrainian forces to do the same. However, the move was rejected by Kyiv, and the US state department, as a “cynical trap” and propaganda move. Putin announced the truce, to begin at noon 6 January 2023, after a call by Patriarch Kirill, leader of the Russian Orthodox Church.
Ministers announced legislation that looks to enforce “minimum service levels” in six sectors, including the health service, rail, education, fire and border security. Unions that refuse to do so will face injunctions and could be sued for damages. Employers will be able to sue unions, and dismiss union members who are told to work under the minimum service requirement but refuse to do so. Prime minister Rishi Sunak, however, vetoed more far-reaching measures that would have increased the threshold for strike ballots, doubled the notice for industrial action from two weeks to a month, and banned ambulance workers from striking.
The British Medical Association have informed the government that junior doctors will strike for 72 hours in March if the action is supported in a ballot opening next week. Doctors would not provide emergency care during the strike. The union, which has 45,000 junior doctor members, wants their real-terms pay restored to 2008 levels: a 26.1 per cent increase. The scale of the strike proposed by the BMA is larger than those to be held by nurses and ambulance staff, and will inflame tensions between the unions and the government. The Royal College of Nursing strikes are for 12 hours at a time, and the ambulance unions are holding 24-hour strikes.
Radovan Karadžić, the former Bosnian Serb leader, has been sentenced to 40 years in jail for genocide and war crimes committed during the 1992-95 Balkans war, including the massacre of more than 8,000 Bosnian men and boys at Srebrenica and the siege of Sarajevo, during which 13,952 people were killed. Despite the 70-year-old former leader’s insistence that his actions were aimed at protecting Serbs during the conflict, he was found guilty of 10 out of the 11 charges he faced, in a verdict delivered 18 months after the end of his five-year trial.
Karadžić had been indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) which was established by the UN in 1993. He was on the run for the next 13 years, during which time he assumed the identity of ‘Dr Dragon Dabic’, a bearded health guru who lived openly in the Serbian capital. He was finally arrested in 2008 and handed over to the Hague by the Serbian government. Continue reading →
The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.
On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.
It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.
At present, the lockdown continues. Image: The Guardian
Previously on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights.
In the first of two response articles, Leo Davidson argued that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis.
In this article, Dominic Ruck Keeneand Henry Tufnell argue that the challengers to the legislation have not shown that the measures adopted by theGovernment are disproportionate in the circumstances of the pandemic.
This is a summary of a paper published here and inevitably simplifies the detailed arguments and considerations within it. The article represents the views of the authors alone.
Note:This post involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.
Introduction
The inevitable has finally happened – a letter before action has been sent to the Health Secretary challenging the legality of the various restrictions that cumulatively make up the current Covid-19 lockdown within the UK through the mechanism of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) (‘the Regulations‘). The letter before action builds on the opinions previously outlined by Francis Hoar both on the UK Human Rights Blog and in a previous paper concerning the compatibility of the ‘lockdown’ with the ECHR. This post seeks to develop Leo Davidson’s earlier analysis of those arguments.
Here, we make the argument that there has not been a breach of all or any of the relevant ECHR rights, namely Articles 5 (right to liberty), 8 (right to private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 14 (prohibition on discrimination) and by Articles 1 (protection of property) and 2 (right to an education) of Protocol 1. Further, that there is in fact no deprivation of liberty under Article 5.
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Do they have anything in common? Relatively little, says Nicola Barker, Professor of Law at the University of Liverpool.
When the IHRAR was announced by Robert Buckland in December 2020, it was accompanied by some of the usual rhetoric about the courts “rewriting” legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The Terms of Reference given to the IHRAR were relatively narrow and the Call for Evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.
However, in its consultation document, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184). In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the ‘living tree’ doctrine.
Given that the Review was only commissioned a year ago it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to section 6. The government propose to expand the exception in section 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that section 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142). It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK.
The more substantive questions of the balance between speech and privacy, between rights and responsibilities, limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.
The table below maps the government’s proposals for a new Bill of Rights on to the recommended and not recommended/rejected options in the IHRAR report. The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. Green text indicates where the government’s proposals broadly match a recommendation of the IHRAR, while red text indicates that the government are proposing something that the Review explicitly or implicitly cautioned against. Sometimes the proposals do not map in exactly the terms recommended or rejected by the Review, but I have matched them as closely as possible with the language used by each. For example, where the government proposals refer to ‘enabling’ UK courts to take account of case law from other jurisdictions and international bodies (a power they already can and do exercise), the Review did not consider affirming this existing power but rejected ‘requiring’ them to consider such case law. As the table illustrates, the government’s proposals bear little resemblance to the recommendations made by the IHRAR panel. More of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its Terms of Reference.
The Independent Review recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the Courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals.
Updated |
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Many of the articles in the blogosphere this week have concerned the conviction and jailing of Matthew Woods for offensive jokes made about the abducted five year old April Jones which came in the same week as a man was jailed for wearing an offensive t-shirt about police deaths. Lawyers, comedians and others have expressed their concern about the sentence and its implications for freedom of expression in this country. The other key news of the week is the statement by our new Minister for Justice, Chris Grayling, that householders will be allowed more leeway in the force used against burglars in their home. Meanwhile, the Attorney-General has come out in support of the European Convention of Human Rights.
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Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party) 
The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – 
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found 
The Upper Tribunal decision in of 
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of 
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