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2021 Reviewed

22 December 2021 by

Photo by the author

And so we come to the end of another year. The Covid-19 pandemic has continued to dominate the news, particularly with the very concerning surge of the Omicron variant this month. Many reading this will be separated from loved ones over Christmas. The year has also seen the return to power of the Taliban in Afghanistan after the US withdrawal at the end of August, the resumption of military rule in Myanmar and the ongoing persecution of the Uyghurs by the Chinese government, this year recognised by the House of Commons and the US government (as well as many other bodies and organisations) as constituting a genocide. So, one could say that this year has rivalled last year for infamy.

And yet, any year contains light as well as darkness. Also in 2021, researchers at Brown University successfully transmitted brain signals wirelessly to a computer for the first time (hopefully a breakthrough in treatment for paralyzed people), 124,000 new trees were planted in Sumatra as part of reforestation efforts, the WHO gave approval for widespread use of a groundbreaking malaria vaccine and almost nine billion Covid vaccinations have so far been administered worldwide since the first dose given in the UK 12 months ago, for a virus which only arrived 12 months before that.

But what, I hear you ask, about the law? As always, this year has been packed with fascinating and important legal developments — many of which you may have caught, but some of which may have passed under the radar. And so, please refresh your glass (or mug) and join me on another adventure as we review the 10 cases that defined 2021.


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Benefits tourism in the EU – Analysis

25 March 2011 by

The case of Patmainiece  v Secretary of State for Work and Pensions was reported in an earlier post.  Here we discuss the underlying rationale for the decision and ask whether the finding that the nationality requirement amounted to mere indirect discrimination was a correct “fit” with EU principles of free movement.

Article 18 (now article 21 TFEU) provides:

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States

However a different regime applies to non-economic actors as opposed to workers.  Free movement of workers is one of the fundamental underpinnings of the internal market on which the EU is based. The main EU Directives and Regulations giving effect to the right to free movement of workers are Regulation No 1612/68 on freedom of movement for workers within the Community (as amended by Directive 2004/38/EC) and Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the member states.  But the rights of those who are economically inactive to reside for more than three months in other member states is subject to certain conditions, set out in the 2004 Directive; they must

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“Don’t Ask, Don’t Tell” restriction on gays in US military is ruled unconstitutional

10 September 2010 by

A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.

The Times reports today that  Judge Virginia Philips found that the policy  violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment. 
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A Landmark Defamation Case and Child Spies: The Round Up

17 June 2019 by

Conor Monighan brings us the latest updates in human rights law

spy

Credit: The Guardian

In the News:

The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.

Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.

As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.

Much of the case will be heard in private over the next week.

In Other News….

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Government back in court over foreign torture allegations

20 April 2010 by

The case of The Queen on the application of Evans v Secretary Of State For Defence is continuing today in the Royal Courts of Justice in London, before Lord Justice Richards and Mr Justice Cranston.

Maya Evans, an activist, is brining a judicial review against the Ministry of Defence  in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.

This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) in Al-Skeini effectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.

The most notable recent example is the Binyam Mohamed case, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:

So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.

As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.

Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”

Read more:

  • Our posts on the Binyam Mohamed litigation can be found here, here, and here
  • Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence

The Weekly Round-up: Employment Rights, ‘Spy Cops’, and Abandoned Rape Prosecutions

1 February 2021 by

In the news:

The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage.  This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law.  Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’.  During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work. 


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UN Committee “seriously concerned” about the impact of austerity on human rights

30 June 2016 by

The UN Committee on Economic, Social and Cultural Rights (CESCR) has published a damning report on the UK’s implementation of economic, social and cultural rights. The report is available here (under “Concluding Observations”).

The CESCR monitors the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), an international treaty to which the UK is a party. State parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to implement the rights set out in the treaty. The Committee may also take into account evidence from “Civil Society Organisations” (Amnesty International and Just Fair were among those who made submissions in respect of the UK). The Committee then addresses its concerns and recommendations to the State party in the form of “concluding observations”.

The Committee’s last report on the UK was back in 2009, so this was its first opportunity to review the austerity measures put in place since 2010.

It’s fair to say that the UK did not come off well. With regard to austerity, the Committee was:

“…seriously concerned about the disproportionate adverse impact that austerity measures, introduced since 2010, are having on the enjoyment of economic, social and cultural rights by disadvantaged and marginalized individuals and groups.”

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The Round-Up: NI Change in Abortion Laws, and the Lord’s Prayer Ban

30 November 2015 by

Photo credit: GuardianLaura Profumo considers the latest human rights headlines.

In the News

The High Court in Belfast today ruled that abortion legislation in Northern Ireland is in breach of the European Convention on Human Rights. The Northern Ireland Human Rights Commission (NIHCR) brought the case to extend abortion to cases of serious foetal malformation, rape and incest.

The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In this judicial review, it was held that the grounds for abortion should be extended, though it is still to be determined whether new legislation will be required to give effect to the ruling.

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Freedom of information: Redact, but don’t rewrite

11 August 2010 by

http://ukhumanrightsblog.com/2010/07/15/al-rawi-disclo…ure-complicity/

Redaction in Al Rawi

Gradwick v IC and the Cabinet Office (EA/2010/0030) – Read decision

The Panopticon Blog has highlighted an interesting recent case in the General Regulatory Tribunal which may prove to be useful in the many different situations where documents are disclosed in redacted form.

The General Regulatory Tribunal (‘the Tribunal’) regulates information rights, amongst other things. Simply, the Tribunal held that if parts of documents disclosed under the Freedom of Information Act 2000 are to be redacted (blacked out), it is not good enough to transcribe a new document with the offending parts removed. This is because, as the Tribunal said:

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10 cases that defined 2020

24 December 2020 by

The Christmas decorations at Middle Temple. Photo by the author.

This time last year I wrote that 2019 had been “perhaps the most tumultuous period in British politics for decades”. Little did I know what 2020 would have in store.

The Covid-19 pandemic has caused loss, suffering and anxiety across not only the UK but almost all of the globe. At the UK Human Rights Blog, we feel deep gratitude to the doctors, nurses, carers and essential workers who have kept society going in what has been a deeply difficult year for so many of us.

In light of this, it is perhaps harder to summon the usual festive spirit that graces the approach of the holiday period — particularly as so many of us will be separated from our loved ones. And yet, perhaps it makes holding onto some spirit of joy all the more necessary.

Writing the article summing up the legal developments of the year is one of the highlights for me as commissioning editor of this blog. Let us embark together on a tour of what the courts had to say over the last 12 months. As ever, it has been a very interesting year.


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What are the data privacy considerations of Contact Tracing Apps?

1 May 2020 by

Latest news: GCHQ has published a detailed blog article which seeks to explain (and defend) the new NHS contact tracing app, which the Government regards as the key to a controlled exit from lockdown.

Coronavirus presents a serious threat to society, legitimising the collection of public health data under Article 9:2 (g) of GDPR regulations, which allows the processing of such data if “necessary for reasons of substantial public interest”. Some of this collection will take the form of contact tracing apps, which have been used in containing the spread of coronavirus in countries such as Singapore. 

They work by broadcasting a bluetooth signal from a smartphone which is picked up by other smartphones (and vice versa), meaning that if one user contracts coronavirus, those who have been in contact with that user can be effectively warned and given further advice to stop the spread. 

NHSX, the body responsible for setting NHS data usage policy and best practice, has been developing a contact tracing app which is currently undergoing effectiveness trials at RAF Leeming. As it stands, the app either tells you “You’re okay now” or “You need to isolate yourself and stay at home”. It seems likely that this or a similar app will be rolled out over the UK in the coming months. 


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Full body scanners now compulsory for Manchester air passengers

14 October 2010 by

Full body scanners are to become the only security option for people flying out of Manchester Airport, the BBC reports today. The excessive amount of coverage given to the disapproval expressed by civil liberties groups has now been counterbalanced by passengers’ attitudes, since it appears that people actually prefer the scanners to the full body pat down, and have been voting with their feet.

According to Manchester Airport, 95% of travellers prefer the scanners and queuing times have been radically reduced. It takes  2 minutes to undergo a pat down, but a mere 27 seconds to pass through a scanner.
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“The Law of Humanity”: Home Office no recourse to public funds policy ruled unlawful

3 June 2020 by

R (W, a child) v Secretary of State for the Home Department, Project 17 intervening [2020] EWHC 1299

Does the common law protect the right of foreign residents to relief from destitution?

In this judgment on the Home Secretary’s “no recourse to public funds” (NRPF) policy, the Divisional Court of the Queen’s Bench Division has confirmed that it does, citing authority going back to the time of the poor laws.

The judgment will come as a welcome relief to migrants with human rights visas who may be struggling in the wake of the Covid-19 pandemic.  It also provides insight into the interaction between the common law and the Human Rights Act 1998.


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A draft domestic abuse bill Domestic abuse in 2019 – David Burrows

31 January 2019 by

Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson[1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:

I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)


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Supreme Court dismisses protestors’ appeal over PKK flag conviction

3 February 2022 by

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

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

BACKGROUND

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

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


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