On Friday, the Guardian reported on the earlier Freemovement.org quantitative analysis relating to deprivations of British citizenship. While it has been known and reported upon for some time, the analysis demonstrates a continued trend of increased deprivations, with a significant peak in 2017, when the number of people whose citizenship was removed soared by 600%.
Protected by Article 15 of the 1948 Universal Declaration of Human Rights following the Second World War, the right to a nationality was described by Hannah Arendt as the very ‘right to have rights’. Nationality underpins individuals’ belonging to states, which can be the only true guarantors of individual self-governance through the medium of inalienable rights.
Prior to 2006, the power to remove citizenship had not been used since 1973. Now, strengthened by the Immigration, Asylum and Nationality Act 2006, which allowed the UK government to order deprivation of citizenship against its citizens where it believes it is ‘conducive to the public good’, 175 people have had their citizenship removed on national security grounds, and 286 due to fraud (even though the latter power relating to fraud was already enshrined in s.40 of the British Nationality Act 1981). The additional power to render individuals stateless was introduced by the Immigration Act 2014, under which the Secretary of State may remove citizenship where she has reasonable grounds for believing that the person deprived ‘is able’ to become a national of another country. This was most visibly achieved in the case of Shamima Begum, considered extensively on the UK Human Rights Blog.
Mark Zuckerberg’s Meta platform is under pressure from the UK’s data watchdog, the Information Commissioner’s Office (ICO), over reports that their latest virtual reality headset, the ‘Oculus Quest 2’, does not have adequate parental controls, exposing children to harmful content. The ICO said it will investigate whether it violates the so-called ‘Children’s Code’, a set of regulations introduced in the UK four months ago which seeks to protect children online. The campaign group, Centre of Countering Digital Hate (CCDH), conducted research on the device, finding frequent instances of inappropriate behaviour on the app often used by Oculus Quest 2 players, VRChat. This included two ‘heavily breathing’ men following a child’s avatar, and another man joking that he was ‘a convicted sex offender’. If Meta has breached the code, it could be fined up to £2.5bn. However, it is unclear whether the device will be found to have breached the Code even if insufficient parental controls are in place, given that the regulations largely focus on the misuse of data, rather than the content children are exposed to on apps.
The Colston Four have been acquitted of criminal damage by a jury for their role in pulling down the statue of Edward Colston in Bristol and pushing it into Bristol Harbour during a Black Lives Matter protest in June 2020. Under the Criminal Damage Act 1971, a defendant will have a defence to criminal damage if they can prove they had a ‘lawful excuse’ for their actions. In this case, the four defendants put forward three lawful excuses. First, they argued that they had been acting to prevent the crime of public indecency which was being committed in the retention of the statue after 30 years of petitions to remove it, given the serious offence and distress it caused. Relatedly, they contended that Bristol County Council had committed misconduct in failing to take it down, but this was withdrawn from the jury by HHJ Peter Blair QC as there was insufficient evidence. Second, they argued that they genuinely believed the statue was the property of Bristol citizens, and that those citizens would consent to the statue being pulled down. Finally, they contended that a conviction would be a disproportionate interference with their rights under Articles 10 and 11 of the European Convention on Human Rights (to freedom of expression and assembly). The verdict has been criticised by some as a politically motivated decision which has no proper basis in law, and a petition to retry the protesters has received over 13,000 signatures. Supporters of the Colston four maintain on the other hand that their excuses have a real foundation in the law, and that therefore it had been open to the jury to find the defendants not guilty.
The approach of juries in protest cases has come under further scrutiny in light of the new proposal in the Police Crime, Sentencing, and Courts Bill to increase the maximum sentence for the damage of memorials to 10 years imprisonment, irrespective of the cost of the damage. The increase in sentence means that all cases would necessarily be tried by a jury, which some legal commentators have suggested makes it more likely that perpetrators will go free.
From 26 December new Covid rules came into effect in Scotland, Northern Ireland and Wales. All three nations have limited the size of public events and face coverings are compulsory in most indoor public spaces. Covid passports or proof of a negative test result is required at many venues. Nightclubs will close in Wales and Scotland from 27 December and in Northern Ireland from 26 December. People in Scotland are also advised to limit social contact to two other households and in Wales social distancing of 2 metres is required in all public and work spaces.
The only change to the current Covid guidance for England is the reduction of Covid self-isolation time from 10 to seven days, provided people have two negative test results. Face masks remain compulsory in most indoor public venues and a Covid passport or negative test result is required for nightclubs and some other venues.
On Tuesday, the Ministry of Justice published its full consultation (the ‘Consultation’) on Human Rights Act (the ‘Act’) reform. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights. The 123-page Consultation follows the Independent Human Rights Act Review (‘IHRAR’), which reported to the government in late October, and was published on the government website on the same day as the Consultation.
The Consultation runs through the government’s now familiar issues with the Act, putting significant weight on cherry picked human rights cases which it is eager to summarise in its own words. For instance, R (Ellis) v Chief Constable of the Essex Police 7  EWHC 1321 (Admin),  2 FLR 566 is cited in the Consultation as an example of the application of the Act going ‘too far’. The Consultation presents the issue in the case, of Essex police publicising photographs of convicted offenders in train stations, as one that should clearly be beyond the remit of the Act. It makes no mention of the children and relatives of the offenders whose interests were balanced with the interests of the public in naming and shaming offenders in the hopes of deterring further crime (in the end, the scheme was permitted to continue).
The judicial review challenge was brought by a 33-year-old Vietnamese national who had been subjected to forced labour, including prostitution and cannabis production, in a number of countries, including Russia, Ukraine, France and the UK. Having been recognised by the Home Office as a victim of modern slavery, she was refused discretionary leave to remain while her asylum claim was being processed, meaning that she was subject to the so-called hostile environment underpinned by the Immigration Act 2014.
Linden J held that this position violated Article 14 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005, which provides that states must
issue a renewable residence permit to [modern slavery] victims…[if] the competent authority considers that their stay is necessary owing to their personal situation.
On a common-sense interpretation of the provision’s language and purpose, it was clear that human trafficking victims must be allowed to stay and access attendant benefits. The Home Office policy of denying people in the Claimant’s position recourse to public funds was incompatible with this reading.
As a result of the decision, thousands of recognised human trafficking victims seeking asylum in the UK are to be granted discretionary leave to remain en masse. If the Home Office decides to appeal it must lodge an application seeking permission to do so by 19 October.
The Sunday Times, now committed to its campaign to change the law on assisted dying, has shared the story of Len and Karen Williamson, who spent £45,000 travelling to Switzerland with the assistance of private ambulances and a private flight, in order for Karen to elect the timing of her own death. Physician assisted suicide remains illegal in the UK, with the Suicide Act 1961 (which simultaneously legalised suicide) rendering liable those who aid, abet or procure the suicide of another to fourteen years’ imprisonment. Repeated challenges have been made against this law, with the most prominent being the leading case of Nicklinson & Anor R (on the application of) (Rev 1)  UKSC 38. A nine-judge Supreme Court rejected the application of Tony Nicklinson, who was paralysed from the neck down and who described his life as a ‘living nightmare’, refusing to issue a declaration of incompatibility under s.4 of the Human Rights Act (see Rosalind English’s post on that decision.) This would have rendered the blanket ban on physician assisted suicide incompatible with the article 8 right to private and family life. Instead, the court expressly left the difficult decision up to Parliament. Since then, the Supreme Court has reaffirmed its position in the case of Noel Conway. Conway’s earlier Court of Appeal decision was considered in full on the UK Human Rights Blog.
Now, there appears to be some new hope for advocates of the right to die, a movement which (where the terminally ill are concerned) is supported by over 90% of the UK population. Baroness Meacher’s Assisted Dying Bill has now reached its second reading in the House of Lords, though it has a long way to go yet. The new Bill would permit attending doctors to provide medicines that would bring about the end of the lives of patients with a committed wish to die, where they are mentally competent and within six months of natural death. They would not be permitted to administer the medicines themselves (potentially leaving out individuals with locked-in syndrome who are not able even to swallow). Parliamentary intervention, strongly recommended by the Commission on Assisted Dying in 2012, would go some way towards curing the unprincipled approaches the courts have been forced to take in tragic cases such as Airedale NHS Trust v Bland  UKHL 17 and A (Children), Re  EWCA Civ 254, two cases which legalised the removal of life support by doctors, and the killing by separation of conjoined twins whose lives are parasitic upon and deadly for their stronger siblings, respectively.
The relationship between women’s rights and the police has been at the forefront of the news again this week, with shocking new revelations in the Sarah Everard case increasing concerns about institutional sexism in the police force, in addition to a scathing judgement from the Investigatory Powers Tribunal (IPT) condemning the sexual relationship carried out by a male undercover police officer as a human rights abuse.
Further details about the tactics used by the police officer Wayne Couzens to kidnap Sarah Everard before her rape and murder were released earlier this week after being presented in court. Couzens used his Metropolitan police-issued warrant card to convince Everard that she was being legitimately arrested for breaching Covid regulations. The new information has heightened debates about whether the Met has an internal culture which tolerates sexism, misogyny, and abuse, with many female police officers reporting inappropriate behaviour and sexual assaults. Towards the end of the week, it was revealed that two officers in a WhatsApp group with Couzens, which allegedly swapped misogynistic, racist, and homophobic messages, remain on duty. Furthermore, the Metropolitan Police’s response to Couzens’ sentencing hearing has been seen by many as completely inadequate, with Commissioner Cressida Dick suggesting that women approached by a plain clothes police officer should consider, inter alia, ‘waving a bus down’ to avoid kidnap. The Met has recently unveiled an action plan to restore trust, but campaigners argue that it is more concerned with changing women’s behaviour than addressing the underlying culture that enables misogynistic behaviour to thrive.
The police were also severely criticised in an IPT judgement handed down last week for violating the human rights of a woman, Kate Wilson, who was tricked into a relationship with undercover police officer Mark Kennedy. Kennedy is thought to have exploited his relationships with Wilson and numerous other women to ingratiate himself with the political organisations he infiltrated. The report found that Wilson’s treatment contravened five rights protected by the European Convention on Human Rights (ECHR): freedom from inhuman or degrading treatment (Art.3); respect for private and family life (Art.8); freedom of expression (Art.10); freedom of assembly and association (Art.11); and the right for convention rights to be applied without discrimination, in this case on the ground of sex (Art.14). The IPT asserted that the senior officers were either ‘… quite extraordinarily naïve, totally unquestioning, or chose to turn a blind eye’. While numerous women have brought civil suits against undercover officers who employed similar tactics, Wilson is the first to bring a claim to the IPT. The Met issued a statement responding to the judgement, accepting and apologising for the ‘damage caused’.
A spokesman for the Taliban has said that working women must stay at home for their own safety as “a very temporary procedure” until systems are in place to ensure their safety. The spokesman also told Afghans not to go to Kabul airport and said the US should not encourage them to leave Afghanistan.
Last week, the former head of religious police for the Taliban confirmed that punishments such as execution and amputation would return to Afghanistan. Prior to the takeover of Kabul, a Taliban judge told the BBC that Sharia law was clear and included punishments of 100 lashes in public for sex out of marriage, being stoned to death for adultery, and “[f]or those who steal: if it’s proved, then his hand should be cut off.”
On Saturday it was reported that the Taliban hung the bodies of four alleged kidnappers from cranes in Herat city square, before moving them to other areas of the city for public display. An unidentified Taliban commander said the aim was “to alert all criminals that they are not safe”.
This week saw the Government’s controversial Police, Crime, Sentencing and Courts Bill undergo its second reading in the House of Lords. The proposed legislation, which would broaden police powers, enable the extraction of more information from mobile phones and impose harsher sentences for assaults on emergency workers, has drawn strong criticism for its predicted discriminatory impact.
Two provisions have attracted particular concern. First, the introduction of Serious Violence Reduction Orders (SVROs), which would authorise the police to stop and search people on account of their previous offending history without requiring ‘reasonable grounds’ to do so. Such discretionary powers are predicted to have a disproportionate effect on black people, given that police figures demonstrate they are already nine times more likely to be stopped and searched than white people. In an open letter published on Monday, criminal justice organisation Liberty said that the law ‘effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat’ and risks ‘compound[ing] discrimination’.
Hundreds of people attended the funeral services for Sophie and Lee Martyn on Monday, killed last month by Jake Davison, who was active on ‘incel’ or ‘involuntary celibate’ forums (though not describing himself as one). Over 50 people, including the five gunned down by Davison in Plymouth have now been killed by incels across the Anglophone world, who blame women for their own perceived lack of sexual and social status. Incel ideology has been linked to the far right, with obsessions over male appearance and phrenology. Biological determinism defines their beliefs in their inability to find sexual partners, which, when poured into online melting-pots already occupied by anti-feminists and white supremacists, can enflame similar senses of entitlement and injustice that may consume disaffected and reclusive (generally white) men.
how to dwell in the ambivalent place where we acknowledge that no one is obligated to desire anyone else, that no one has a right to be desired, but also that who is desired and who isn’t is a political question, a question usually answered by more general patterns of domination and exclusion.
In the relatively quiet period before the courts reopen for Michaelmas term, a suspended sentence handed down by a judge at Leicester Crown Court has attracted relatively loud censure.
Timothy Spencer QC, Leicester’s senior resident judge, sentenced 21-year-old former Leicester student Ben John to two years in prison, suspended for two years. John had been found guilty of a terror offence under Section 58 of the Terrorism Act after downloading almost 70,000 white supremacist documents and bomb-making instructions.
The judge characterised John’s crime as an “act of teenage folly” and instructed him to return to court every four months to be “tested” on classic literature by Dickens, Austen, Shakespeare and Hardy.
The independent police watchdog has published a report this week claiming Black people and those with mental health problems are more likely to be subject to prolonged Taser use. The report from the Independent Office for Police Conduct reviewed some of the most serious cases of Taser use in the last five years, including 16 deaths. The report suggested that 60% of Taser incidents against Black people lasted for longer than 5 seconds, more than double the 29% of white people subjected to a similar length. The report made 17 recommendations, including a new system of police training on the use of the weapons. Following the report, families of victims killed by the use of a Taser have argued that the police should be banned from using them where it is clear the subject is suffering from a mental health crisis, and suggested that many of the cases of Taser deaths (some of which were sent to the Crown Prosecution Service but never reached court) should be reinvestigated. However, the police rebutted the report’s findings, asserting that they were ‘vague’ and misrepresentative, given that the report looked at only 0.1% of Taser use between 2015-2020, and focused on serious cases which had already been investigated by the Commission. This issue is becoming ever more relevant as a greater number of police officers are issued with Tasers each year.
On 15 August the Taliban took control of Kabul, following the collapse of the Afghan government and its President Ashraf Ghani fleeing the country. In a news conference, a Taliban spokesman said women would be allowed to work and have rights “within the framework of Islam”. The Taliban also said it wanted women to join its government, but precise laws are as yet undefined and there have been reports of women in some areas being removed from their workplaces and told their jobs will go to men. Since the takeover, however, female presenters have returned to some television channels and “most, though not all, girls’ schools have remained open or are reopening”.
The fall of Kabul came after weeks of rapidly growing Taliban control across the nation, which followed a US-Taliban peace deal in April committing to US and NATO allies, including the UK, fully withdrawing from Afghanistan by 11 September. On 13 August the UK government announced plans to evacuate British Nationals and former British staff eligible for relocation under the Afghan Relocation and Assistance Policy (ARAP). ARAP came into effect on 1 April 2021 as a programme to relocate “current and former local staff in Afghanistan, including interpreters and their immediate families.” Home Secretary Priti Patel said she was “proud to say that the UK is fulfilling its promise to those Afghan interpreters and other locally employed staff”, and that it was “our moral obligation to recognise the risks they have faced…” Defence Secretary Ben Wallace confirmed the government would do its best to evacuate all people eligible but admitted with clear regret that “some people won’t get back”.
For those that that do make it out, their futures are far from certain as the Home Office is reportedly struggling to provide suitable accommodation for refugees. On 18 August a 5-year-old Afghan boy fell from a hotel window, less than a fortnight after arriving in the UK with his family under the ARAP programme. There had reportedly been some concerns about the safety of the hotel windows and the housing group Mears had left the hotel some months ago due to safety concerns.
Monday was England’s so-called ‘Freedom Day’, with the final coronavirus restrictions lifted. This means nightclubs can reopen; bars are no longer table service only; there are no more limits on attendee numbers at large events; and it is no longer mandatory to wear face coverings in public spaces, although the recommendation to do so remains. It also remains a legal obligation to self-isolate if contacted to do so by NHS Test and Trace, although it is not mandatory to download the NHS Covid-19 app, or to self-isolated if ‘pinged’ by it (i.e. alerted by the app to self-isolate). NHS Test and Trace contacts people who have been named by a positive-testing person as a close contact and are legally obliged to self-isolate or face fines from £1000 for failing to comply. By contrast, the Covid-19 app works by using Bluetooth to ‘ping’ people who may have come into close contact with a covid-positive person. A resulting ‘pingdimic’ has led to concerns about keyworker staff shortages leading to a hospital understaffing and potential supermarket food shortages. Frontline health workers can be exempt from self-isolation in exceptional circumstances, as can other keyworkers if their employers apply for and receive government authorisation specific to a named worker. From August 16th anyone who has had both vaccination doses will not need to self-isolate as a close contact.
Civil liberties organisation Liberty has expressed concerns that so-called “Freedom Day” is in fact “a moment of fear and division”. The organisation has criticised the Government for its “divisive, coercive strategies”, among which it includes “vaccine passports and mandatory vaccinations”. Vaccine passports in particular are condemned as “a step towards a two-tier society”. Despite these concerns, the organisation also expresses a worry that lifting restrictions has “serious implications” for the rights of frontline workers and the clinically vulnerable”.
In other news:
On Wednesday, the government published its Judicial Review and Courts Bill following an Independent Review of Administrative Law and a government consultation. The Bill seeks to “reform the rules around Judicial Review and facilitate a number of procedural improvements across the court system”. One of the reforms proposed is to remove Cart Judicial Reviews, which are High Court reviews of an Upper Tribunal’s refusal to grant permission to appeal. An “unprecedented” coalition of over 220 organisations, including Amnesty International UK, Greenpeace, Refugee Action and Stonewall, has criticised the Bill and proposed changes to the Human Rights Act.
On Friday the 2020 Summer Olympics began with an opening ceremony of dancers and acrobats performing to a near-empty stadium. Outside, protesters clashed with Tokyo police as Japanese citizens showed their anger at the games continuing to be held amidst the fourth declaration of an official state of emergency in Japan due to the coronavirus pandemic. In nine prefectures including Tokyo and Osaka, residents have been asked to go out for essential reasons only. In the week the Games began Japan saw numbers of Covid-19 cases not seen since January.
On Saturday the first ever “Reclaim Pride” march took place in London, with thousands taking to the streets to demand inclusive LGBTI+ rights. The event was organised amidst concerns that traditional Pride events (like London Pride, this year postponed to 11 September) are becoming less like protests and more like “over-commercialised parties”.
In the Courts:
Royal Mail Group Ltd v Efobi  UKSC 33 – the Supreme Court unanimously dismissed an appeal from Mr Efobi, a postman for the Respondent, Royal Mail. The Appellant’s claim in the employment tribunal for direct or indirect racial discrimination was dismissed but the decision was overturned on appeal to the EAT. The Court of Appeal then reversed the decision in favour of Royal Mail and Mr Efobi was granted permission to appeal to the Supreme Court. Efobi argued (i) that a change in the wording of equality legislation from “where … the complainant proves facts” to “if there are facts from which the court could decide” removed the burden on the claimant to prove anything at the first stage of employment discrimination cases, and (ii) that the EAT should have drawn adverse inferences from the absence of a potential witnesses for the Respondent Royal Mail. The appeal was dismissed on the grounds that (i) the new wording simply clarifies that evidence from both parties must be considered, not only that of the claimant and (ii) tribunals are free to draw or decline to draw inferences using common sense. Furthermore, even if adverse inferences were drawn, the recruiter’s knowledge of Mr Efobi’s race was by itself insufficient evidence of racial discrimination.
Secretary of State for the Home Department v GA & Ors  EWCA Civ 1131 –the Respondent had applied for British passports for three of her children (British citizens living in Country X) from Her Majesty’s Passport Office (HMPO), for which the Appellant is responsible. HMPO refused the applications for lack of evidence of the consent of a person with parental responsibility under the law of Country X. HMPO considered that person to be the children’s father alone. It was unsafe or impossible for the mother to obtain the father’s consent, as he had been arrested following “months of extremely serious physical and psychological abuse including torture of me.” A declaration signed by the father that he had no objection to his children travelling abroad with their mother was not accepted by HMPO as permission to grant British passports. HMPO’s passport refusal was quashed in a judicial review claim because: (i) there was no evidence to conclude that the father had to consent under the law of Country X; (ii) HMPO failed to consider the application of Article 22 of the 1996 Hague Convention; and (iii) Article 22 did apply and HMPO was entitled to refuse to apply the law of Country X. Article 22 allows the dis-application of an applicable law provision if it would be contrary to public policy, considering the best interests of the child. The Court of Appeal upheld the quashing order and refused the Appellant’s argument that HMPO was not obliged to consider, and should not have considered, Article 22. It also rejected the argument that HMPO should have asked the father alone for his consent, on the basis that the Country Profile for Country X suggested it allocates sole parental responsibility to the father. The Country Profile was insufficient evidence to conclude in this specific case that the mother had no authority to apply for British passports. Furthermore, upholding this law of Country X would be contrary to ECHR Articles 14 and 8, as it discriminates based on sex. Accordingly, the appeal was dismissed and permission to appeal was refused.
The High Court has ruled in McNally v Saunders that a retired solicitor’s ‘abrasive’ and ‘frequently puerile’ blog posts are entitled to the same level of protection as mainstream journalism. Chamberlain J struck out a harassment claim brought by a local government officer as having no reasonable prospect of success and has granted summary judgment for the defendant under CPR rule 24.2. The claim was brought under the Protection from Harassment Act 1997 by Dr Lisa McNally, MBC Sandwell’s director of public health and a mental health campaigner. McNally was the subject of five blog posts, criticising her decision to post a two-minute video about her own struggle with mental health and questioning her qualifications. She said the posts had caused her ‘crippling’ anxiety about attending meetings and made her worry about her ability to do her job. Given that Saunder’s posts’ were ’frequently puerile tone and style, a casual reader… might be surprised to discover that they are the work of a semi-retired former solicitor,’ the judge said. However ’none of these features disentitles them to the protections afforded by the law to journalistic expression.’ The public interest in McNally being able to continue in her role was outweighed by Saunders’ Article 10 right to free expression.
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.