Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
Gabrielle Giffords, a Democratic US congresswoman, is in a critical condition after being shot at a public meeting in Tucson, Arizona. Six other people died in the shooting, including a federal judge and a 9-year-old child. Eighteen others suffered gunshot wounds.
Little is known as yet about the alleged shooter, Jared Lee Loughner, save that he had a troubled past and may have mental health problems. It is also possible that there was a second person involved.
The High Court has dismissed an application for judicial review regarding the use of Automated Facial Recognition Technology (AFR) and its implications for privacy rights and data protection.
Haddon-Cave LJ and Swift J decided that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilised society. The Court also held that South Wales Police’s (SWP) use to date of AFR by has been consistent with the requirements of the Human Rights Act 1998 (HRA) and data protection legislation.
Nonetheless, periodic review is likely to be necessary. This was the first time any court in the world had considered AFR. This article analyses the judgement and explores possible avenues for appeal.
Last week 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, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.
In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues 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, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.
In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.
Note: This article involves examination of thelegal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.
With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.
These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough. As a matter of human rights law, however, they are lawful. The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.
Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful. The analysis is wrong, primarily because:
It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
The margin is particularly wide given the complex scientific evidence underlying the decision.
Welcome back to the UK Human Rights Roundup, your regular hurtling freight train of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, immigration, in various forms was hotly discussed and some notable cases have been or are soon to be decided in the realm of disability rights. And not everyone is happy about the decision to televise Court of Appeal cases.
… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?
In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.
States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so. Continue reading →
Condliff, R (on the application of) v North Staffordshire Primary Care Trust  EWCA Civ 910 – Read judgment
A morbidly obese man has lost his appeal against his local Primary Care Trust’s (PCT’s) refusal to fund his anti-obesity surgery. The Court of Appeal ruled that the PCT had no obligation under Article 8 of the European Convention on Human Rights to consider social or non-clinical factors when deciding whether to grant a request for exceptional funding.
In his discussion of the case, Lord Justice Toulson began by saying that “Human rights law is sometimes in danger of becoming over complicated“. Underlying this point is the fact that it is already complicated enough. This is a good example: how could a court find that this case, which clearly involves the dignity and family life of a man whose life is difficult and miserable, not engage the protection of human rights law? I will try to explain.
Theresa May had appeared to have bounced back from the Article 50 Supreme Court case with the relatively smooth passing of the Brexit Bill through the House of Commons.
But her woes were clearly not at an end this week when she suffered defeat at the hands of the House of Lords. The peers voted 358 to 256 in favour of amending the Brexit Bill in order to guarantee the rights of EU citizens already living in the UK – the amendment drawing support not only from Labour, Liberal, and Crossbench peers, but also 7 Conservative peers.
What’s the issue?
There are currently over 3 million EU citizens living in the UK. While we are part of the EU they are allowed to move and work freely in whichever Member State area they choose.
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
In the news
This week, the Foreign and Commonwealth Office published its Report on Democracy and Human Rights and the Legal Aid, Sentencing and Punishment of Offenders Act was enacted. The Leveson Inquiry continues to roll on, and we have a fresh round of commentary over freedom of speech, and over the democratic legitimacy of judicial decisions on human rights.
With apologies, this post originally appeared with the wrong title
The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners
The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed). Continue reading →
In R (NB & Others) v Secretary of State for the Home Department  EWHC 1489 (Admin), the High Court ruled that the treatment of asylum seekers at Napier military barracks did not meet minimum legal standards, that the process for allocating asylum seekers to accommodation centres was flawed and unlawful and that the six claimants had been falsely imprisoned during the “inevitable” Covid-19 outbreak. David Manknell of 1 COR was junior counsel to the SSHD.
In September 2020, Napier military barracks was converted into a medium-term accommodation centre for asylum seekers. By the end of January 2021, the centre had witnessed a major outbreak of Covid-19, protests by residents against poor conditions inside the facility and a fire.
NB and the other five claimants had been kept at the barracks for months. This was despite evidence that that they had all experienced “people trafficking and/or torture prior to their arrival in the United Kingdom” and that several of them were suffering from pre-existing mental health issues as a result of their experiences. At issue in this case was the Defendant’s decision in each of the Claimants’ cases that they should be accommodated at the Barracks.
Welcome back to the UK Human Rights Roundup, your regular late summer bake off of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Following the Tory Conference, commentators postulated on the topography of the human rights landscape in 2015. Meanwhile, more looming concerns have been raised about proposed reform of judicial review, while challenges have been raised to the bedroom tax, as well as the UK’s involvement in PRISM.
On 17 February the Home Secretary announced that the government was moving ahead with changes to the Civil Partnership Act 2004 which would allow the registration of civil partnerships to take place in religious premises.
While welcomed by many, some have voiced concerns that permission will inevitably become coercion. They fear that religious organisations may face legal action if they refuse to facilitate civil partnership ceremonies, a claim the Government denies. But will they?
One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police, or of the administration of the State.
The right to freedom of assembly covers peaceful protests and demonstrations. Public and private meetings are protected under this Article. These may be limited mainly on the grounds of public order. In most cases Article 11 rights are considered together with the right to freedom of expression under Article 10 and sometimes the right to a fair trial under Article 6. The Strasbourg Court will only reach a ruling under Article 11 if it considers that this is the lex specialis to be applied in a given case, in other words whether its provisions are more relevant to the facts than those in Article 10.
The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective. Freedom of association also implies a negative right for individuals who may not be compelled to join an association: (1) Young (2) James (3) Webster v United Kingdom (1981) 4 EHRR 38 (a case concerning closed shop agreements) and Sigurdur A Sigurjonsson v Iceland (1993) 16 EHRR 462 (compulsory membership of a taxi association breached the applicant’s right to freedom of association). In addition to this in the recent case of Demir & Baykara v. Turkey (10 November 2008), the Grand Chamber held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions, something of a departure from the case law on this particular element of trades unionism in the seventies. States are also under a positive obligation to provide legal safeguards for employees against actions taken by private employers. In one case a private company dismissed the applicant who was a candidate for the British National Party, because he might allegedly have offended clients of ethnic origin if they discovered his leanings. The Strasbourg Court upheld his complaint under Article 11, concluding that his right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs: Redfearn v United Kingdom, 6 November 2012.
Freedom of assembly is often in the news as demonstrations, sit-ins, staged occupations and other forms of protest are part and parcel of the public life of a liberal democracy. We discuss the application of domestic public order laws and the extent to which they can be mitigated by Article 11 here.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.