The Joint Committee on Human Rights has published a report which proposes that the Government must urgently consider the human rights implications of its Covid-19 measures.
The report drew attention to eight problem areas, claiming:
The Lockdown Regulations had not been made sufficiently clear to members of the public, and more care was needed to distinguish between advice, guidance and the law. People had paid fixed penalty notices of up to £10,000 in circumstances where the police “do not fully understand their powers” and there was no realistic appeal or review procedure.
Health and Care criticisms include that the allocation of PPE may have been discriminatory, the imposition of blanket “do not resuscitate” policies in care homes was unlawful, and hospital admissions policies were ageist.
Detention continues to be an area of acute concern, with blanket bans on prison visits “incompatible to the right to family life”, and a call for inspections to resume as soon as possible to avoid human rights abuses.
Contact Tracing raised ongoing privacy issues, also the Government’s decision to stop the centralised model in favour of a decentralised model was welcomed.
Children and the right to education had been impacted differently by school closures depending on socioeconomic factors and special educational needs and disabilities.
Access to justice had been limited during the pandemic, and the report called on the Government to ensure that lack of access to technology would not lead to disadvantaged persons being digitally excluded from the justice system.
An interim review into deaths from Coronavirus was recommended to discharge the UK’s procedural obligations under article 2.
Accountability and scrutiny of Government powers under the Coronavirus Act was insufficient. The report called for new provisions to be subject to parliamentary debate and approval. In addition, it stressed that major announcements should be made to Parliament rather than through news channels or other press briefings, especially when human rights were engaged.
The report’s publication comes as Covid-19 cases rise, forcing Boris Johnson to confront a bleak choice.
Opposition to new measures from Tory MPs, human rights groups and some portions of a beleaguered British public is mounting. Rishi Shunak and Alok Sharma, business secretary, have warned that another lockdown would be an economic calamity. At the same time, pressure builds from scientific advisers, including Chris Whitty, chief medical officer, and Patrick Vallance, chief scientific adviser, urging measures now to avoid deaths and disruption later.
But the report’s concerns about government accountability under the Coronavirus Act 2020 are shared by commentators across the political spectrum. When the government tries to renew the Act on 30 September, Sir Graham Brady, chair of the 1922 committee, will seek an amendment requiring MPs to vote on future measures to control the virus, to prevent “draconian restrictions on personal liberty and economic life [being] introduced without proper scrutiny.”
His concerns are shared by Lady Hale, former president of the supreme court, who says parliament “surrendered” its role over emergency laws restricting freedoms amid the coronavirus pandemic. In the same vein, FT columnist and lawyer David Allen Green criticised courts’ deference to the executive during emergencies for “leaving those adversely affected with no remedy.” So far, the UK has avoided a constitutional crisis, he writes. But the pandemic has revealed, more than ever, that “the constitution of the country is in a damaged and precarious condition.”
Emergency measures were viewed as necessary when the nation was first trying to survive the virus. Now, as we learn to live with it in the long-term, resistance to those measures is on the rise.
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:
Kotilainen and Others v. Finland  ECHR 635: this case concerned complaints about failures by Finnish authorities to protect the lives of the ten victims of a 2008 school shooting in the town of Kauhajoki. The ECHR held, by six votes to one, that there had been a violation of article 2 (right to life) due to the authorities’ failure to observe their duty of due diligence and seize the killer’s weapon before the attack. The police had seen post online by the shooter and interviewed him prior to the attack, but decided against confiscating his weapon. Unanimously, however, there had been no violation of article 2 over the investigation after the attack. Judge Eicke expressed a dissenting opinion.
Grubnyk v. Ukraine  ECHR 636: this case concerned a Ukrainian national who was arrested and detained in connection with a series of terrorist attacks at a time of great tension in Odessa. He claimed he had been arrested without a prior court decision, without being given reasons, and without the option of bail due to the nature of his offences. The court unanimously found that there had been no violation of articles 5(2) and (3) (right to liberty and security), two violations of article 5(1), and a violation of article 6(2) because his initial pre-trial detention order stated he was guilty of a “grave offence” before he had been convicted of one. The ECHR considered that the finding of violations constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
Aggerholm v. Denmark  ECHR 628: the applicant, who suffered from paranoid schizophrenia and had violent tendencies, was strapped to a restraint bed for almost twenty-three hours in a psychiatric hospital. The ECHR held that this was not strictly necessary and not respectful of his human dignity, and therefore that there had been a violation of article 3, which prohibits inhuman or degrading treatment or punishment. The applicant was awarded damages and costs.
On the UKHRB
In the latest episode of Law Pod UK, Professor Catherine Barnard of Cambridge University comments on the transition period towards Brexit since we formally left the EU.
Euan Lynch focuses on the Lord Justice Clerk Lady Dorrian’s comments in a recent case, which cast doubt on the existence of a common law right to privacy in Scotland.
Dr Sean Molloy criticises the UK Government’s decision to propose the controversial UK Internal Market Bill, and sets out a number of reasons why it ought not flout international law.
David Hart QC outlines proceedings recently started in the ECHR by six Portuguese citizens against 33 Council of Europe countries for failing to address climate change.
Rafe Jennings summarises the CJEU’s ruling, in a first for the regulation, that zero tariff contracts contravene net neutrality regulations.
J.D. and A v the United Kingdom (nos. 32949/17 and 34614/17) – read judgment
Much may have changed in the political world since the Coalition Government introduced its controversial ‘bedroom tax’, but the legal fall-out from the policy continues. The European Court of Human Rights has delivered its verdict on the compatibility of the scheme with the prohibition on discrimination set out in Article 14 of the European Convention on Human Rights. The Strasbourg Court has found that the policy discriminated unlawfully against women at risk of domestic violence.
As is well known, in 2012 the United Kingdom government introduced new regulations with the effect that those in social housing with an ‘extra’ bedroom had their housing benefit reduced: the so-called ‘bedroom tax’. The purported aim of the policy was to save money and to incentivise those with an ‘extra’ bedroom to either move property or take in a lodger thereby resulting in a saving of public funds.
It is not difficult to imagine why someone might have an extra bedroom but have strong reasons (related to disability or gender) for not moving house. The Government sought to make provision for such cases through a discretionary scheme operated by local authorities but funded by central government.
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
Al-Saadoon & Ors v Secretary of State for Defence  EWCA Civ 811, 9 September 2016 – read judgment
This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.
3 main points arose on appeal.
The first was the jurisdictional question under Art.1 of the Convention – were Iraqi civilians killed or injured by British servicemen covered by the ECHR?
The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).
And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.
I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.
Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.
The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.
Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.
In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.
On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.
Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.
In other news:
The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here. The UK Constitutional Law Association Blog provides extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.
Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.
BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.
Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.
This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).
This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.
On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).
This week, the mosaic shrine adorning the wall outside Stockwell underground station once again became the focal point for difficult questions surrounding the police response the terrorist attacks of 2005.
The judgment of a Grand Chamber of the European Court of Human Rights in Da Silva v the United Kingdom draws a line under a long legal battle mounted by the family of Jean Charles de Menezes, the young Brazilian electrician shot dead by the Metropolitan Police on 22 July 2005 having been mistaken for a suicide bomber. Continue reading →
Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.
The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).
In a judgment much anticipated on both sides of the Channel, the Court of Justice of the European Union (“CJEU”) has held that French restrictions on the eligibility of prisoners to vote are lawful under EU law.
A Political Decision Disguised as Legal Argument: Opinion of CJEU 2/13 – and other things
Over the summer an interesting article was published by Graham Butler, on his interview with David Thor Björgvinsson, former Icelandic judge in the European Court of Human Rights – see here.
One subject was the CJEU’s refusal to permit accession by the EU to the ECtHR (see my post here) – despite the EU’s commitment to accede via Article 6 of the Lisbon Treaty, in December 2009. A Draft Agreement on Accessionwas concluded in April 2013, but it required the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties – to which the CJEU gave a dusty answer in December 2014.
Quite a lot has happened in the 6 months since my post here on the Transatlantic Trade and Investment Partnership (TTIP). TTIP is a proposed trade agreement between the US and the EU, with negotiations on the substantive issues between the EU and the US underway in Brussels at the moment.
The proposed treaty may have significant effects on EU regulation, but let’s concentrate on whether TTIP should contain specific provisions enabling investors to suegovernments.
The ground for action would be governmental “expropriation” of investments – and that may mean anything from telling a cigarette manufacturer that he must have to change what his packets look like, (with consequential loss of profits), to imposing new environmental standards on a power generating plant.
This mechanism is known as Investor-State Dispute Settlement or ISDS. Our government seems astonishingly sanguine about this, on the basis that it has not yet been sued successfully under existing bilateral treaties with similar provisions. This does not seem to be a very profoundly thought-through position to adopt, if the proposed system has its problems – which it plainly does, when one compares it with traditional claims in the courts. Put simply, why wave it on?
Lambert and Others v. France (application no. 46043/14) – read judgment
In an important step away from Pretty v UK, the Grand Chamber of the Strasbourg Court has upheld the right of to die with dignity by ruling that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights if artificial nutrition and hydration were to be withdrawn from a patient in a persistent vegetative state.
Although the facts were very different, it is heartening to see Strasbourg at last allowing the argument that the state’s obligation to protect life also involves a duty to respect people’s rights to exit life with dignity. The importance of this ruling cannot be underestimated, as can be seen in the ferocity of dissent set out in the Separate Opinion annexed to the judgment (discussed at the end of this post.)
The case involved a challenge by some of the patient’s family members to a judgment delivered on 24 June 2014 by the Conseil d’État which authorised this step. The following summary of the facts and judgment is based on the Court’s press release.
Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. At the time of this hearing he was in the care of a hospital which specialises in patients in a vegetative or minimally conscious state.In 2011 his condition was characterised as minimally conscious and in 2014 as vegetative. He receives artificial nutrition and hydration which is administered enterally, through a gastric tube. Continue reading →
“We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:
So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.
Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”). Continue reading →
Al-Saadoon & Ors v Secretary of State for Defence  EWHC 715 – read judgment
The High Court has ruled that the ECHR applies to situations where Iraqi civilians were shot during security operations conducted by British soldiers. When taken together with the parallel cases being brought against the MOD for breach of its Article 2 obligations towards its own soldiers, it appears increasingly likely that any operation undertaken by the British Army in the future will lead to legal challenges being brought against almost every aspect of its actions pre, during and post any use of military force.
Mr Justice Leggatt was asked to consider the scope of the UK’s duty under the ECHR to investigation allegations of wrongdoing by British Forces in Iraq. The Secretary of State accepted that anyone taken into custody by British Forces did have certain rights under the ECHR, in particular the right to life and the right not to be tortured. However, the one of two key areas of controversy were whether non detainee civilians who were killed outside the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004), were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR. Continue reading →
After a brief hiatus, the Human Rights Round-up is back. Our new team of expert summarisers – Hannah Lynes, Alex Wessely and Laura Profumo – is installed and ready to administer your regular dose of UK human rights news.
This week, Hannah reports on the Global Law Summit, access to justice, and what’s happening in the courts.
In the News
‘If you wrap yourself in the Magna Carta…you are inevitably going to look ridiculous if you then throw cold water on an important part of its legacy.’ Lord Pannick QC was not alone last week (23-28th February) in suggesting that there was some irony in Lord Chancellor Chris Grayling evoking the spirit of the Magna Carta at his launch of the three-day Global Law Summit.
Unsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.
An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.
Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.
Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.
In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.
But Spielmann did not leave it at that, as we shall see.
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.