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The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
Yesterday, the Divisional Court (Lewis LJ and Swift J) held that, in principle, the relocation of asylum seekers to Rwanda was consistent with the Refugee Convention and other legal obligations on the government, including those imposed by the Human Rights Act 1998. However, the Court also held that Home Secretary had failed to properly consider the circumstances of eight individual claimants to decide whether there was anything which meant that their asylum claim should be determined in the UK or they should not be relocated to Rwanda. Therefore, the decisions in those cases were set aside and referred back to the Home Secretary for her to consider afresh.
The Court’s judgment is detailed and addresses a number of issues. In this post, the focus will be on the general challenge made to removal to Rwanda in principle and what can be expected in the (likely) event that this aspect of the case is appealed further.
The UN human rights council on 13 March 2018 in Geneva, Switzerland. Photograph: Fabrice Coffrini/AFP/Getty Images
We are pleased to welcome this guest post from Prof Brice Dickson, Emeritus Professor of International and Comparative Law at Queen’s University Belfast, in which he sets out the international human rights monitoring mechanisms applicable to the UK and considers the UK’s engagement with the relevant monitoring processes (Eds).
On 10 November 2022 the UN Human Rights Council conducted its fourth Universal Periodic Review of the UK’s compliance with international human rights standards. The Council’s report was adopted just six days later and contained no fewer than 302 recommendations from other States on how the UK could improve its human rights record. That figure is up from 227 in 2017. For early accounts of the review meeting see the pieces by Marcial Boo and Robert Booth.
The UPR, of course, is just one of many international mechanisms for monitoring human rights in the UK. In a book published this month, International Human Rights Monitoring Mechanisms: A Study of their Impact in the UK, I examine the full range of monitoring mechanisms to which the UK is subject and attempt to evaluate how they have operated to date, especially since 2000. In particular, I try to determine what difference they have made to the protection of human rights in practice. The analysis extends to monitoring conducted by a committee of the International Labour Organisation and by the Council of Europe’s Group of States against Corruption (GRECO), two bodies which do not usually attract the attention of human rights lawyers.
In R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410, the Court of Appeal robustly rejected a challenge to the earlier decision of the Divisional Court that Article 2 did not apply to drug related death of a voluntarily admitted psychiatric patient.
Photograph: Linda Nylind
The deceased had died in her own flat in July 2018 whilst under long-standing psychiatric care for schizophrenia. At the time she was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust who had failed to return to the unit when expected She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. She had failed to return to the unit when expected. As noted by the Lord Chief Justice (delivering the judgment of all the court) at [3] there was no basis for suggesting that she had taken her own life.
In this first Judgment, the Court analysed powers granted by the Immigration Acts 1971 and 2016 and rejected the Defendant’s erroneous interpretation of the relevant statutory provisions. It then made consequential orders (also reported) including steps to publicise its ruling, given that over 400 phones, still held, could not be linked to any individual migrant.
A second Judgment (delivered on 14 October 2022) was recently published ([2022] EWHC 2729 (Admin)). This Judgment addresses the question “how did this happen?” How did the Defendant come to operate an unlawful policy and why was its existence initially denied, leading the Defendant to breach her duty of candour within the proceedings?
On 8 September 2022, the European Court of Human Rights (ECtHR) handed down its decision in Drelon v France (application nos. 3153/16 and 27758/18).[1] The Court unanimously found a violation of Article 8 of the European Convention on Human Rights in relation to the collection by the French Blood Donation Service, the Établissement Français du Sang (EFS), of personal data relating to a potential blood donor’s presumed sexual orientation and the excessive length of time the data was kept in a public institution.
In R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin), Mrs Justice Hill quashed a ruling that the Article 2 general (or systemic) duty has not been potentially engaged by the death of Kianna Patton.
Kianna had been found hanging aged 16 at a time when she was under the care of Specialist Child and Adolescent Mental Health Services with a history of self harm. She was living with a friend, whose mother had let her use cannabis. This caused her mother (the Claimant) significant anxiety, given Kianna’s mental health issues. Her mother sought assistance in relation to Kianna from social workers and Police officers before her death. She believes there were serious failings in the way they responded and in the care S-CAMHS provided to Kianna. Following the Coroner’s ruling that Article 2 was not engaged, a Health Board’s report that was disclosed identified several issues with care delivery and the way that Kianna’s risk had been assessed, in particular, noting that safeguarding screening had not been completed once it was identified that she was no longer living at home.
The constitution of Bermuda was the subject of the first case. Image: Flickr
Attorney General for Bermuda v Roderick Ferguson & Ors (Bermuda) [2022] UKPC 5 — Judgment here, links to hearings here.
Chantelle Day & Anor v The Governor of the Cayman Islands & Anor (Cayman Islands) [2022] UKPC 6 –Judgment here, links to hearings here.
The Bermuda Case
In the Bermuda case, the Attorney General of Bermuda appealed the decision of the Court of Appeal for Bermuda (decision here), which found in favour of the Respondents: a gay Bermudian, OUTBermuda (a Bermudian LGBTQ charity), a lesbian Bermudian, and three Bermudians associated with Bermudian churches, holding that s.53 of the Domestic Partnership Act 2018 (“the DPA”) of Bermuda, which confines marriage to a union between a man and a woman, was invalid under the Bermudian Constitution (“the Constitution”).
Lord Hodge and Lady Arden (Lord Reed and Dame Victoria Sharp agreeing) gave the judgment of the Board, allowing the appeal of the Attorney General. Lord Sales gave a dissenting judgment.
Background
Same-sex marriage is highly controversial in Bermuda. The political backdrop to this case is outlined at [25-30]. Importantly, following a general election in 2017 the Progressive Labour Party introduced the Domestic Partnership Bill, which was subsequently passed, in an attempt to reach a viable compromise on the issue of same-sex marriage. The DPA provides for legally recognised domestic partnerships between any two adults, but s.53 confines marriage to a union between a man and a woman.
The Legislature in Bermuda is bound by the Constitution, summarised at [7-9]. Chapter 1 of the Constitution sets out fundamental rights and freedoms. The Constitution does not confer a right to marry. Section 8 provides for the protection of freedom of conscience:
no person shall be hindered in the enjoyment of his freedom of conscience…the said freedom includes freedom, either alone or in the community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.
Although Bermuda is not in Europe, the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law through declarations made by the UK pursuant to the Convention (when it was responsible for Bermudian foreign policy) and subsequently permanently renewed after Bermuda became independent. Although it does not apply in domestic Bermudian law, as one of the “antecedents” to the Constitution, it is relevant to the interpretation of constitutional rights [10-21].
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.
The pandemic has had a knock-on effect of increasing awareness of devolution. The governments of Northern Ireland, Scotland and Wales have been responsible for navigating the pandemic in their own countries, and the approaches taken have sometimes significantly diverged. With the COVID Regulations affecting the essentials of our daily lives, public attention across the UK has been drawn to the powers of devolved governments to govern differently from Westminster.
One surprising difference between the Welsh and UK Governments – and one that has evaded much public scrutiny – is that the Welsh Regulations created a new power of entry which allows police officers to enter people’s homes in certain circumstances to investigate breaches of the COVID Regulations. No such power has ever been included in the English Regulations, and the power of English police officers to enter people’s homes is more restricted, governed by the provisions of the Police and Criminal Evidence Act 1984 (‘PACE’) and the common law rules for dealing with breaches of the peace.
The practical issues around the Welsh police power of entry to people’s homes have fallen into the background in recent months, because it mainly arises when there is or has been a suspected unlawful gathering in someone’s home. (Although on 26 December 2021, a new restriction was introduced banning gatherings of more than 30 in homes.) With restrictions hopefully easing again, reflecting on this regulation raises broader questions about human rights and legal scrutiny in Wales.
In a judgment handed down on 24 November 2021, the Court of Appeal dismissed an appeal concerning the lawfulness of the Self-Employment Income Support Scheme (“the Scheme”) which was introduced by the Government in April 2020 during the first lockdown as part of its response to the Covid-19 pandemic.
Background
The purpose of the Scheme was to provide payments for persons carrying on a trade where their business had been adversely affected by the pandemic. The payments were to be calculated by reference to the average trading profits (“ATP”) of the preceding full tax years (2016/17, 2017/18, 2018/2019).
The First Appellant, Motherhood Plan, also known as “Pregnant Then Screwed”, is a registered charity with aims to end discrimination faced by women and mothers by campaigning to change legislation, raising awareness in the media and working with employers to change business practice and culture. The Second Appellant, Ms Kerry Chamberlain, worked as a self-employed energy analyst. In the tax year 2017-18, she took a 39-week period of maternity leave after the birth of her second child, and, in the following tax year, she took a further 39-week period of leave after the birth of her third child. As a result of her periods away from work, her trading profits were reduced.
They claimed that contrary to Article 14 of the European Convention on Human Rights (“the Convention”), read with Article 1 of the First Protocol of the Convention, the Scheme unlawfully discriminated against self-employed women who took a period of leave relating to maternity or pregnancy in any of those three preceding full tax years since the level of support granted to them under the Scheme was not representative of their usual profits.
Tanya Morahan had a history of paranoid schizophrenia and harmful cocaine use. From mid-May 2018 she was an inpatient at a rehabilitation unit operated by the Central & North West London NHS Foundation Trust. She was initially detained under s.3 of the Mental Health Act 1983 but on 25 June 2018 the section was rescinded. On 30 June 2018 Tanya left the unit but didn’t return until the next evening, 1 July. On the afternoon of 3 July 2018, again with her doctors’ agreement, she left the ward but didn’t return. The Trust asked the police to visit her. They visited on 4 July 2018 but she did not answer the door. She was ultimately found dead on 9 July 2018. [para 2].
Background
The Coroner opened an inquest and found that Article 2 was not engaged. The family brought judicial review proceedings, arguing that: (1) the circumstances of Tanya’s death fell within a class of cases which gave rise to an automatic duty to conduct a Middleton inquest; (2) alternatively, that such duty arose because there were arguable breaches of a substantive operational duty (the Osman duty) owed by the Trust to take steps to avert the real and immediate risk of Tanya’s death by accidental drug overdose, a risk which was or ought to have been known to the Trust. [para 3].
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.
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.
The Special Advocates have responded to the Government’s submission to the statutory Review of closed proceedings being conducted by Sir Duncan Ouseley — but HMG’s submission remains unpublished.
The delayed statutory review into closed proceedings under the Justice and Security Act 2013 (JSA) is reaching its conclusion. According to the Government’s website, it is estimated that the report “should be laid before Parliament early in 2022”.
A very brief recap:
Closed material procedures (CMPs) enable the Government to rely on secret evidence in legal proceedings, without showing that evidence to the other party. To reduce the unfairness inherent in that, a special advocate is appointed to review the secret material and represent the interests of the party excluded from access to it, including in hearings held in secret.
The JSA came into force in June 2013. Controversially, it included provisions making secret procedures (CMPs) available across the full range of civil proceedings.
One of the safeguards required by Parliament during the Bill’s bumpy passage was a review of the operation of CMPs under the Act after it had been in force for 5 years.
The 5 year anniversary came and went in June 2018, with no sign of the review being commissioned. This was highlighted in my post on this blog on 28 January 2020: “Secret Justice”: An Oxymoron and the Overdue Review.
Another year (with further enquiries as to the position from various quarters in the meantime – summarised here) was to pass before the Government announced that a Reviewer had been appointed: Sir Duncan Ouseley, a retired High Court Judge and former President of the Special Immigration Appeals Commission (SIAC – the body responsible for hearing CMPs in statutory immigration appeals), so with wide experience of CMPs from his judicial career. The call for evidence took place earlier this year, closing just over 3 years beyond the date that the review should have taken place.
The Special Advocates (of whom I am one) made a detailed submission to the Reviewer based on our collective experience of CMPs under the JSA. This was published on this blog here: Secret Justice – The Insiders’ View. We highlighted some serious concerns that we had encountered with the practical operation of CMPs under the JSA. We also drew attention to commitments that the Government had made when the Bill was passing, to improve the effectiveness of the system, which had not been honoured.
We have seen no response from the Government to the detailed critique that we set out in our paper, and we do not know whether any attempt at a comprehensive reply by HMG has been submitted to the Reviewer.
What of the Government’s submission to the Review? In publishing our paper for the Review, in the interests of openness and promoting public debate, the SAs had expressed the hope that HMG’s response (and that of any other Government bodies or agencies) would do likewise:
In a corresponding spirit of transparency, it is hoped that any submissions to this review on behalf of Government bodies or agencies will be published in full, and so made available for wider review and comment. [para 5 of SAs’ submission of 8.6.21]
That has not been done. What did happen was that on 29 July 2021 the SAs were sent the Government’s Response by the Reviewer (not HMG) and told that this response was shared in confidence, and was not for onward transmission.
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