The rights of immigrants and asylum seekers have been at the forefront of the news this week, with the Home Secretary coming under fire both in the courts and in the political arena. On Wednesday, a landmark court ruling held Ms Patel accountable for failures properly to investigate deaths among asylum seekers at detention centres. The case concerned two Nigerian nationals, one of whom was found dead in Harmondsworth immigration centre in 2019. His friend, Mr Lawal, was a key witness in the investigation of the death, but the Home Office sought to deport him before he could give evidence. The court held that the Home Secretary’s initial policy, which sought to remove Mr Lawal, its replacement, applied from August 2020, and the current policy, were unlawful and breached human rights because they failed to ensure that those who had relevant information would be able to give evidence before removal proceedings were commenced, thus frustrating inquiries into immigration centre deaths. Days later it was reported that this may be a widespread problem, with suggestions that scores of people had been prevented from giving key evidence to police investigations as a result of early deportation. While Ms Patel was warned that this practice must be curbed by a coroner in August, it is suggested that her response did little to address the problem.
On Wednesday, Amnesty International released its 2020/21 report on the state of the world’s human rights. Amnesty’s UK director, Kate Allen, also called for an inquiry into the government’s handling of the pandemic and said “the government is now shamefully trying to strip away our right to lawfully challenge its decisions, no matter how poor they are.” The report highlighted human rights concerns related to the government’s response to COVID-19, including health, immigration, domestic abuse and housing. There were also concerns around police conduct around racial discrimination and excessive use of force against protesters; during the first national lockdown in May, 10,000 of 43,644 recorded stop and searches conducted against young black men. Several legal developments were criticised for falling short of human rights standards, including the Immigration Act, the Gender Recognition Act, the Domestic Abuse Bill, the Counter-Terrorism and Sentencing Bill, the Overseas Operations (Service Personnel and Veterans) Bill, which would create a “presumption against prosecution” for members of the British Army accused of overseas crimes, including torture, committed more than five years earlier.
On Friday, former Home Secretary Lord Blunkett raised his issues with the Police, Crime, Sentencing and Courts Bill, an enormous piece of legislation that reforms much existing legislation and common law offences. Lord Blunkett pointed to the difficulties the police could face in interpreting the new law, and the sensitive nature of the relationship between the police and protestors. The Bill is currently at the Committee Stage of Parliamentary procedure. Particular attention has been drawn to s.59 of the Bill, which purportedly codifies the common law offence of public nuisance, following the recommendations of the Law Commission’s 2015 report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency. This section would create an offence of ‘intentionally or recklessly causing public nuisance’, defined as where a person’s act or omission causes serious harm to the public or a section of the public. Subsection (2) states that this offence can be constituted where ‘a person’ suffers ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity’. On indictment, a defendant is liable to imprisonment for a term up to ten years. While the Law Commission’s recommendation that the fault element should be intention or recklessness as opposed to ‘knew or should have known’ was adopted, the significant maximum term is a new addition.
Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.
Having been temporarily suspended in early January as a result of an increase in COVID-19 cases, the Grenfell Tower Inquiry hearings resumed on 8 February 2021. The fire killed 72 people.
The hearings are being conducted remotely using a Zoom-based video platform, which the Inquiry describes as “a temporary measure to be used only for as long as absolutely necessary”.
The Inquiry conducted Phase 1 of the investigation, which focused on the events of the night of 14 June 2017, on 12 December 2018. Phase 2 is currently underway, which examines the causes of these events, including how Grenfell Tower came to be in a condition which allowed the fire to spread in the way identified by Phase 1.
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.
Last week’s round-up looked at the measures and messaging of the UK’s latest lockdown. This week we ask what it means for vulnerable children and victims of domestic abuse. Are sufficient legal safeguards in place?
For vulnerable children, it unfortunately seems not. On Wednesday, a Guardian investigation revealed that thousands of children were sent to unregulated care homes last year, while local authority provisions were stretched throughout many months of restrictions. These homes include supported accommodation facilities for over 16s, which are not subject to any inspections by regulators in England and Wales. The Children’s Commissioner for England Anne Longfield has warned that the children’s care system has been ‘left to slip deeper into crisis, seemingly unable to stop some of the most vulnerable children from falling through the gaps.’
Rampant spread, fuelled by a combination of a new variant that is around 50-70% more transmissible, plus a lifting of restrictions at the beginning of December, brings us into another national lockdown.
In many ways, Prime Minister Boris Johnson’s first address of 2021 felt unpleasantly like a return to early 2020.
The original “Stay Home” messaging made a comeback. The Prime Minister was deliberately vague about how long lockdown would last. Big Brother Watch criticised the government for “yet again … evading the democratic process” by denying MPs a meaningful vote on the new national restrictions prior to their televised announcement to the nation, or their coming into force. The new guidance differs from the Tier 4 guidance in emphasis, if not substance.
Ever the optimist, the Prime Minister was keen to emphasise “one huge difference” between this lockdown and the first one: the UK is “rolling out the biggest vaccination programme in its history”. He also managed to get in a jab at the UK having delivered more vaccines than the rest of Europe combined.
There were other, more subtle differences, as No. 10 tweaked its messaging in light of past mistakes.
This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.
Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.
On Monday 23rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system.
Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:
Tier 1 (Medium Risk):
The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
Pubs and restaurants must shut at 11pm
Limited numbers of spectators may be permitted at sports and music events
Tier 2 (High Risk):
People from different households may not meet indoors
The ‘Rule of Six’ will apply for outdoor gatherings
Pubs and restaurants must shut at 11pm
Alcohol can be served only alongside a substantial meal
Tier 3 (Very High Risk):
People from different households may not mix indoors or outdoors in hospitality venues or private gardens
People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
Pubs and restaurants must close except for takeaway and delivery services
Travelling into and out of the area is discouraged
The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.
Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.
This week, 6 months after it was passed, the Coronavirus Act 2020 is due for a review in Parliament. In advance of that review, the Parliamentary Joint Committee on Human Rights has published a report on the human rights implications of the government’s response to COVID-19. In the report, the committee highlights a wide range of failings, including in particular: widespread confusion over what is law and what is guidance; police failing to fully understand their powers under coronavirus legislation; privacy, data protection and discrimination concerns about test & trace; reduced access to justice; disproportionate harm to school children with special educational needs and disabilities; and harms inflicted by blanket bans on visits to people in care homes, prisons, and mental health facilities. The report can be viewed here; the JCHR’s proposed amendments to the coronavirus legislation to be discussed this week are here.
The JCHR is also due on Monday to scrutinise the government’s Overseas Operations (Service Personnel and Veterans) Bill, which proposes a presumption against prosecution for service personnel and veterans. Concerns have been raised about the risks of the UK contravening its international legal obligations, and creating impunity for serious war crimes and torture.
Concerns about surveillance in the UK continue, as it was revealed this week that surveillance cameras manufactured by Chinese company Hikvision are being used across the UK; their use has expanded in the wake of the COVID-19 pandemic. Hikvision was blacklisted by the US government for human rights violations in connection with the Uighur concentration camps in Xinjiang. Hikvision says it has been engaging with the UK and US governments to “clarify misunderstandings”, and claims it is “committed to cybersecurity standards which are compliant with the most rigorous certifications and best practices.”
The Prime Minister has courted controversy yet again this week with a new Brexit bill that appears to violate international law. The proposed Internal Markets Bill would give ministers certain powers relating to Northern Ireland in respect of customs rules and state aid. In particular, it would give them powers to modify or “disapply” rules relating to the movement of goods which will come into force from 1st January 2021, if the UK and EU are not able to agree a trade deal. These were key issues under the Northern Ireland Protocol that was negotiated as part of the Withdrawal Agreement concluded on 31 January this year. In a striking admission, Northern Ireland Minister Brandon Lewis stated in Parliament that this breach of the Withdrawal Agreement does indeed breach international law, but only “in a very specific and limited way”. The bill is to be formally debated by MPs today.
In a further move to avoid the UK’s international law obligations, the Government has indicated that it is planning to “opt out” of parts of the European Court of Human Rights. This proposal is apparently made in order to enable the Government to accelerate deportation of asylum-seekers, and to minimise legal action against British forces overseas, which the Government identifies as key areas where the judges of the European Court have “overreached”. The proposals have provoked outrage from Labour and the Liberal Democrats.
The Joint Committee on Human Rights’ inquiry into racism and human rights in the UK heard evidence this week from ClearView Research. The evidence provided from surveys indicates that black people in the UK overwhelmingly do not think they receive equal human rights protection. According to the data, 75% of black people in the UK do not believe their rights are equally protected compared to white people; 85% are not confident they would be treated the same as a white person by the police; and 60% do not believe their health is equally protected by the NHS compared to white people.
The British Institute of Human Rights has released a report which raises new concerns about the operation of the care sector during the pandemic. The report states that more than 75% of social care staff were not given proper training to deal with the impact of COVID-19, in particular in relation to human rights law and coronavirus emergency powers – despite the wide-ranging changes made by the government to the legal framework which governs the care sector, including suspending duties under the Care Act, changing vulnerable individuals’ care packages, and banning non-essential visits to care homes. The report also noted that more than 60% of vulnerable individuals with care and support needs were not informed of the legal basis of the drastic changes made to their care packages.
As the school year gets going again, grammar schools will need to be cautious in complying with their duty to make reasonable adjustments, following a legal challenge funded by the Equality and Human Rights Commission. The challenge was brought by a visually impaired student who was unable to sit an 11+ entry exam for a Berkshire grammar school when the school refused to make adjustments specified in his Education Health and Care Plan, on the basis that they were too expensive; the First-tier Tribunal found for the student.
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:
GL v Italy: a child diagnosed with nonverbal autism was entitled to specialised assistance under Italian law. The local authorities did not provide this for 2 years, while she was in primary school, on the basis of lack of resources. The ECtHR found that there had been a violation of Article 14 read with Article 2 of Protocol 1 (right to education). In particular, the court noted that the Italian courts had failed to consider whether there was a fair balance between the child’s educational needs and the authorities’ capacity, and did not verify how the effect of budgetary restrictions compared for non-disabled and disabled children. The court further observed that the national authorities had not considered the possibility that they could address their lack of resources by reducing their educational offer accordingly, such that it could be distributed equitably between non-disabled and disabled students. In giving judgment, the court emphasised that budgetary restrictions must impact the education available for disabled and non-disabled pupils the same way; and that discrimination of this kind is all the more serious when taking place in compulsory primary education.
NS v Croatia: the applicant’s daughter and partner had died in a tragic car accident, but their daughter survived. In the aftermath of the accident, there was a custody battle between the applicant and the child’s uncle; following confidential court proceedings, the uncle was given custody. The applicant subsequently appeared on a national TV show, where she discussed the proceedings, and expressed criticism of the Croatian child protection system on a TV show; she was convicted of a criminal offence for breach of confidentiality in respect of the court proceedings. The court held that there had been a violation of Article 10. The domestic courts should have considered the fact that most of the information disclosed in the TV report was already known to the public, and that the applicant had been appearing on TV in good faith to raise serious concerns about the malfunctioning of the country’s social welfare services.
Yordanovi v Bulgaria: two Turkish-Muslim brothers decided to set up an association for the integration of Turkish-speaking Bulgarians. In pursuit of this aim, they built a monument on private land to commemorate soldiers killed in the 19th Century Russo-Turkish War, and set up the ‘Muslim Democratic Union’ at an assembly in the centre of town. Police told them the assembly was illegal, but it went ahead; criminal proceedings were subsequently brought for setting up a political organisation on a religious basis, and for breach of the peace in setting up the monument. The brothers were given a suspended prison sentence. The court held that this was a violation of Article 11. The authorities had many other options: they could refuse to register the would-be political party, without which registration the party would not be able to engage in any official activity; and they could have dissolved the party if it were declared unconstitutional by the Constitutional Court. A criminal sanction had been a disproportionate interference with freedom of expression and freedom of association, and was not ‘necessary in a democratic society’.
Timakov and Ooo Id Rubezh v Russia: the applicant and his newspaper had published an article making allegations of corruption against the Governor of the Tula region in Russia. The Governor brought civil and criminal proceedings, and substantial damages awards were made – sufficiently substantial that some of the applicant’s household items were taken to fulfil them. The Governor was ultimately found guilty of bribery and corruption and sent to prison. The court found that there was a violation of Article 10. In reaching this conclusion, the court noted a laundry list of failings in the Russian courts: the courts had not sought to balance the governor’s interest in protecting his reputation against the importance of public transparency and accountability; the courts had not considered the applicant’s role as a journalist, that these were matters of public concern, or that he had acted in good faith; the courts had not attempted to consider whether the statements complained of were statements of fact or value judgements. The court further emphasised the chilling effect of such disproportionately high awards, with the awards from the civil proceedings having been substantially higher than the fine in the criminal proceedings.
BG and others v France: Eastern European asylum-seekers with young children were accommodated by the French authorities in a set of tents in a parking lot, for a period of approximately 3 months. They alleged that there had been a violation of Article 3 and 8, insofar as they had not benefited from the material and financial support provided for under national law. The court rejected their claim, noting that the applicants had received constant food aid; medical monitoring, vaccination, and education had been provided for their young children; and their asylum application had been examined under an accelerated process.
Shuriyya Zeylanov v Azerbaijan: this case highlights serious failings in the Nakhchivan Autonomous Republic of Azerbaijan. The applicant’s son had been charged with treason, having been accused of collaboration with Iranian intelligence forces, and died in custody from an alleged pulmonary embolism. The applicant claimed that the government had violated Articles 2 and 3. The court upheld his claim, under both the substantive and the procedural limbs. The government had failed to convincingly account for the circumstances of the victim’s death, and it appeared likely that injuries visible on video footage of his body had been occasioned by torture. Likewise, the government had failed analyse the causal links between his injuries and his death, or to cooperate with the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment; and it appeared that the government had attempted to prevent an effective investigation into the matter, by levelling accusations of defamation against the deceased’s family.
On the UKHRB
Sapan Maini-Thompson discusses a High Court challenge to conditions at Brook House Immigration Removal Centre
Philippa Collins considers the implications of the new pattern of home working for privacy rights under the European Convention of Human Rights
Elliot Gold examines a judgment of the European Court of Human Rights on Article 3 ECHR in the context of a rape investigation
Image: Screenshot of the Home Office’s twitter feed (now deleted).
It was not an overly exerting bank holiday weekend for the author of this week’s round-up. The influence of the summer holiday appears to have resulted in relatively few judgments from the senior courts, with particularly little in the field of human rights law. However, the week was not wholly without incident…
In response to the growing numbers of migrants seeking to cross the English Channel in small boats, the Home Office tweeted a short video explaining that “current return regulations… (allow) activist lawyers to delay and disrupt returns”. The video was helpfully illustrated with little pictures of planes taking off from the English coast bound for Europe, although why the Home Office would seek to return migrants to Europe following the UK’s withdrawal from the Dublin Regulations was unclear.
In the interests of fairness, despite being removed from the Home Office’s twitter feed following numerous complaints, the video can still be viewed here. Readers will without doubt form their own opinions. It is submitted however, that the following statements are uncontroversial:
Conor Monighan brings us the latest updates in human rights law
In the News:
Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.
Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.
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.