The UK Government has urged Supreme Court justices not to hear the Scottish government’s request for a ruling as to whether it has the power to hold ‘indyref2’ (a proposed second Scottish independence referendum). The request was referred to the UKSC by Lord Advocate Bain, who was not prepared to sign off on the independence referendum bill without a ruling which acknowledges the necessary power to do so. The UK Government has been expressive in its “clear view” that the bill would be beyond the competence of the Scottish Parliament, and that the matter is too “premature” for justices to rule on it. The case is currently in the hands of Lord Reed. If the Scottish Government wins the case, Nicola Sturgeon has indicated that the bill would be introduced promptly so as to allow the vote to take place before October 2023.
The Information Commissioner’s Office has reprimanded the Department of Health for the use of WhatsApp and private emails during the pandemic. The use of these cryptic platforms has meant that information regarding the handling of the pandemic has been lost. The issue was brought before the courts in April, where the claim was dismissed and the practice held to be lawful. This was because the use of such channels of communication did not in themselves breach the Freedom of Information or data protection rules, because sufficient controls were in place to allow the information to be retrieved upon request. The ICO investigation has discovered, however, that “such controls were lacking”. As a result, the Department of Health has been formally required to improve its communications operations so that “public authorities remain accountable to the people they serve”.
The biggest story filling the headlines this week was that Boris Johnson has resigned as leader of the Conservative Party following over 50 resignations from government ministers. Though predominantly a political development, there are potential legal implications to the decision. This is because, until the leadership campaign announces his successor, current policies are stagnated under the ‘lame-duck government’. There is, therefore, doubt over the future of three particularly controversial policies: the Northern Ireland Protocol Bill; the Bill of Rights Bill; and the Rwanda scheme.
The proposed Bill of Rights Bill is Dominic Raab’s effort to replace the Human Rights Act, with the vision to allow the UKSC to take little account of rulings by the ECtHR. While Raab still remains in office, there are question marks over whether the controversial Bill will survive the administrative overhaul that is soon to unfold. See the reference below to the latest episode of Law Pod UK, which discusses the Bill in detail.
On Wednesday, a new Bill of Rights was introduced to Parliament. While the Government claims that the Bill ‘will strengthen traditional UK rights’ which are ‘under attack’ from ‘stifling political correctness’, critics say the Bill dilutes domestic human rights protection and seeks to diminish the powers of domestic courts. Key aspects of the Bill are as follows:
it gets rid of the interpretive obligation under s3 of the Human Rights Act 1998, with no analogous replacement;
it prevents UK courts from adopting new interpretations of ECHR rights that would require a public authority to comply with a positive obligation and limits their ability to enforce existing positive obligations;
it introduces a permission stage requiring people to show they have suffered a significant disadvantage before their claim can go ahead;
it prevents domestic courts from finding legislative provisions concerning deportation to be incompatible with the Article 8 right to respect for private and family life unless the provision would require the relevant person to be treated in a way that would occasion ‘harm’ so ‘extreme’ that it would ‘override the otherwise paramount public interest’ in removal from the UK; and
it requires courts, when deciding ‘incompatibility questions’, to treat Parliament as having ‘decided’ that the Act strikes an appropriate balance between the relevant competing factors.
The Bill’s detractors have suggested that, despite its stated aim to ‘bring rights home’, the Bill will in fact result in the UK being in breach of its obligations under the ECHR more often, making it more vulnerable to adverse rulings by the ECtHR.
On Friday, the US Supreme Court overturnedRoe v Wade, holding that there is no longer a federal constitutional right to an abortion. Going forward, abortion rights will be determined by states, unless Congress acts. President Biden commented: “The Court has done what it has never done before: expressly take away a constitutional right that is so fundamental to so many Americans that had already been recognized.”
The first flight attempting to deport asylum seekers to Rwanda has been cancelled at the last minute following a ECtHR ruling that granted an ‘urgent interim measure’ to stop the deportation. This is in contradiction to the UK High Court and Court of Appeal, which found that, while there should be a full review of the policy, the Home Secretary would not be acting unlawfully by deporting asylum seekers in the meantime. The UK Supreme Court refused permission to appeal. The ECtHR stated that the decision was influenced by the UN’s refugee agency, who raised concerns that those being deported may not receive a fair hearing and could be left in unsafe conditions.
The Home Secretary has approved the extradition of Julian Assange to the US. Assange has been charged under the US Espionage Act for publishing leaked documents about the Afghanistan and Iraq wars on his whistle-blowing platform ‘WikiLeaks’ and faces up to 175 years in jail if found guilty. Assange has been in prison since he was removed from the Ecuadorian embassy in London in 2019 after his asylum status was removed. His extradition had previously been blocked for concerns regarding his mental health, but the current decision marks the most important stage in his legal battle. Assange has 14 days to appeal the decision, but his brother expressed that if this is not successful the case will be brought before the ECtHR.
The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.
In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.
An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.
On Monday 23, the Russian tank commander Vadim Shishimarin was sentenced to life in prison by a court in Kyviv. He previously pleaded guilty to killing Oleksandr Shelypov, 62. Shishmarin’s trial has been closely watched by investigators collecting evidence of possible war crimes to bring before the international Criminal Court (ICC) in the Hague. International law experts will also scrutinise the verdict of the 21-year-old tank commander; a key question arose from the proceedings about how much scope the Kyviv court has now left itself for sentencing Russians for more heinous or numerous offences.
The Independent Review of Children’s Social Care, led by Josh MacAlister, was published on Monday 23 May. The report included more than 80 recommendations and suggested a windfall tax on the 15 largest children’s homes and fostering providers. Projections claim that by 2032 there could be approaching 100,000 children in care costing £15 billion per year. An investigation by The Timeshas demonstrated that many inexperienced or first-time owners of children’s home have opened residences in order to charge as much as £1,000 a day. MacAlister has also encouraged the government to consider adding those with care experience to the Equality Act.
The Gender Recognition Reform (Scotland) Bill has caused controversy in recent years, with opponents raising concerns about how it could affect the rights of women and girls. On Tuesday, Ellie Gomersall – the first trans person to be elected as the president of NUS Scotland – and Malcom Dingwall-Smith, Sportscotland’s strategic partnerships manager, both gave evidence to the qualities, human rights and civil justice committee concerning its effectiveness. The former, asserted the limited powers of the bill to reduce crime in single-sex spaces, and the latter highlighted that the bill would have no impact on a section of the 2010 Act that allows trans people to be barred from the sports of their acquired gender if the governing body deems it interferes with ‘fair competition or the safety of competitors’.
On Thursday, Britain’s equality regulator announced that it has launched a formal investigation into Pontins holiday parks due to continued concerns about discrimination against Gypsies and Travellers. Last year, Pontins owner, Britannia Jinky Jersey Limited, entered into a 12-month contract with the Equality and Human Rights Commission (EHRC), following allegations that the company operated a discriminatory booking policy. On the 18 February the EHRC terminated the contract, judging that Pontins had not taken the required steps to prevent unlawful race discrimination or honour its commitments under the agreements. The EHRC has now launched a formal investigation that will consider whether Pontins has committed unlawful acts under the Equality Act 2010.
On 16 May, the Home Secretary announced in a letter to police forces that she is permanently lifting restrictions on the use of stop-and-search powers under Section 60 of the Criminal Justice and Public Order Act, which give police officers the right to search people without reasonable grounds in an area when they expect serious violence, and to look for weapons before they can be used, or those used in a recent attack. The new changes will lengthen the periods for which the powers can be in force and by which they can be extended, and a lower rank of officer will be able to authorise their deployment. In addition, the officer will now only need to anticipate that serious violence “may” occur, not that it “will” occur. Concerns have consistently been raised around the powers on the basis that they disproportionately affect black and minority ethnic communities. For instance, in the year to March 2021, black people were seven times and Asian people two-and-a-half times more likely to be stopped and searched than white people.
In the first Ukraine war crimes trial since the invasion by Russia, a Russian tank commander has pleaded guilty to shooting dead a 62-year-old civilian. Even in light of the guilty plea, for the suspect to be convicted and sentenced, the three judges hearing the case will have to reach a unanimous verdict. The suspect faces life in jail.
The Queen’s Speech was delivered by Prince Charles on Tuesday, setting out the legislative agenda for the year to come. The controversial Bill of Rights was announced, which would overhaul the Human Rights Act with a vision to ‘restore the balance of power between the legislature and the courts.’ However, more than 50 groups including Amnesty, Liberty, and the British Institute for Human Rights have written to Boris Johnson warning of the ‘significant implications’ of repealing the Act. Other bills in the speech include: a Public Orders Bill (designed to target environmental protesters); a Brexit Freedoms Bill (ending the supremacy of EU law by making repeal easier); and a National Security Bill (tightening up official secrets law).
The first legal action against the UK-Rwanda asylum plan has been launched, based on an Iranian asylum seeker who claims he would face extreme hardship if sent to Rwanda. The challenge is that the scheme breaches international law, the UN refugee convention, and data protection laws. The legal action comes as the UN refugee agency expressed serious concerns that the policy will be taken up throughout Europe.
On 2 May, a draft majority opinion of the Supreme Court of the United States was leaked, suggesting that the court has voted to strike down the landmark decision of Roe v Wade and sparking widespread anger. In the opinion, Justice Samuel Alito states that “Roe was egregiously wrong from the start” and that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This is the first time in history that a draft decision has been disclosed publicly while a case was still pending. On 3 May, Chief Justice John Roberts confirmed the authenticity of the decision, which would remove federal constitutional protection of abortion rights and leave the decision in the hands of each state.
Under a new pilot scheme, victims could have the right to attend full Parole Board hearings from as early as next month. The Parole Board will also be required to take into account victims’ submissions and victims will be allowed to ask questions. Currently, victims can ask to read a statement in person but are not allowed to hear the rest of the evidence.
Police are investigating a gathering attended by Sir Keir Starmer and Angela Rayner in April 2021. Having initially decided to take no action, Durham Constabulary has now begun conducting an investigation into potential breaches of Covid-19 regulations in light of “significant new information”. Durham Constabulary had previously stated that it had a policy against retrospective Covid fines, after allegations of lockdown breaches by Dominic Cummings.
On 4 May, foreign secretary Liz Truss announced in a press release that there will be a ban on services exports to Russia, covering services such as accountancy, consultancy and PR advice. Lawyers, however, will still be able to service Russian clients.
Last week saw an influx of legislation approved before Parliament’s Thursday end-of-session deadline. Some include:
The Nationality and Borders Act. Three of the most controversial provisions are: to allow asylum claims to be handled at overseas facilities (offshoring asylum); criminalising those who knowingly arrive in the UK illegally; and treating asylum seekers differently depending on how they enter the UK.
The Police, Crime, Sentencing and Courts Act. Another turbulent journey to Royal Assent, this grants police extra powers to quash disruptive demonstrations. This is done by increasing restrictions on protests where ‘noise’ could cause ‘serious disruption’, and by criminalising activity which causes ‘serious distress, serious annoyance or serious inconvenience’ without ‘reasonable excuse’.
An independent review by Jonathan Hall QC has concluded that terrorists in prison ‘enjoy high status’ within a culture of fear and violence across English and Welsh jails. The review details examples of ‘Islamic gang-like activity’, exacerbated by the 27% cut in staff between 2010 and 2017. A separate report by Hall also discovered that the Government does not keep a record, ‘officially or unofficially’, of the number of prosecuted terrorists returning to the UK from Syria.
Victims of sexual offences are subject to the longest waiting period on record, with an average of 9 months for cases to go through Crown Courts. Data also demonstrates that the speed of cases depends on their location, with cases in Leicester taking the longest to complete (on average 15 months).
The government has come in for a certain amount of criticism about its deal to allow migrants who arrive in the UK illegally to be sent to Rwanda for assessment of their asylum applications.
Priti Patel’s Rwanda asylum plan has been challenged in Parliament by Theresa May, who questions its ‘legality, practicality, and efficacy’, as well as its potential for increasing the trafficking of women and children. The legality of the scheme, which proposes to send those with rejected UK asylum claims to Rwanda, has been defended by Patel, who points to immigration rules introduced last year. However, the backlash has now infiltrated the Home Office itself, with staff threatening to go on strike over concerns of illegality and racism. This prompted the permanent secretary, Matthew Rycroft, to reassure the civil service that implementing it would not be ‘racist or illegal’. Rycroft himself, however, doubts whether the plan would provide taxpayer value for money, and has refused to sign it off.
Russia has been suspended from the Human Rights Council following a UN General Assembly resolution adopted on Thursday. 93 nations voted in favour of Russia’s suspension, 58 abstained and 24 voted against. The resolution was adopted in a meeting of a special emergency session on the war in Ukraine. Before the vote, Ukranian ambassador Sergiy Kyslytsya alleged that “thousands of peaceful residents [of Ukraine] have been killed, tortured, raped, abducted and robbed by the Russian Army”. Following Russia’s suspension, Russian Deputy Permanent Representative Kuzmin announced that Russia had decided to leave the Council before the end of its term and that the Council was monopolised by states that “for many years have directly been involved in blatant and massive violations of human rights”. Earlier last week, Twitter limited content from over 300 official Russian government accounts, including that of President Putin.
On Wednesday the Divorce, Dissolution and Separation Act (2020) came into force, introducing no-fault divorce to domestic law. Couples no longer need rely on adultery, unreasonable behaviour or years of separation as legal reasons for divorce and can instead separate by mutual agreement and avoid “unnecessary finger-pointing”. The Act also removes the possibility of disputing a decision to divorce and introduces a minimum 20-week period from the start of proceedings to the granting of a conditional order of divorce.
The United Kingdom and other NATO allies have begun ramping up arms deliveries to Ukraine to assist them in the ongoing conflict against Russia. Deliveries of hitherto purely ‘defensive’ weapons systems will now be bolstered by armoured vehicles and long-range artillery. The UK has also provided cutting edge portable Starstreak air defence systems to Ukraine, with a verified report on Saturday confirming that a Russian helicopter had already been destroyed by the system. The Starstreak system is developed by Belfast-based Thales Air Defence Limited, which specialises in short-range air defence weapons. Starstreak launchers can be shoulder-mounted, attached to a vehicle, or fired from a ground launcher, but the UK has only sent units of the shoulder-mounted version to aid rapid deployment. These weapons follow lethal aid already sent to Ukraine by the UK, including over 4,000 Swedish made NLAWs and some US produced Javelin missiles, both powerful anti-tank weapons capable of destroying heavily armoured Russian main battle tanks.
On Monday, the Independent reported on the words of the Minister for Brexit Opportunities and Government Efficiency of the United Kingdom, Jacob Rees-Mogg. Having earlier tweeted a graph demonstrating that the UK had sanctioned a higher amount of Russian-owned assets in pound-terms than the US or the EU, Labour and Lib Dem politicians responded by pointing out that the graph better demonstrated the UK’s role in storing and laundering money for highly questionable individuals from Russia and elsewhere. Despite the calls for transparency from, for instance, the president of Estonia long before the invasion of Ukraine, the UK and its territories have remained a bastion for billions of pounds of poorly identified foreign wealth, with large numbers of expensive houses in central London standing empty while house prices soar and the number of homeless grows.
Russia’s invasion of Ukraine has dominated the news since the conflict began. The human rights implications of the conflict will be far reaching and devastating, and this Weekly Round-Up will no doubt examine the impact of events as they unfold. This week, our focus is on the UK government’s approach to Ukrainian refugees. The Home Office is still insisting that only those refugees with family ties to the UK will be able to satisfy visa requirements to enter through the ‘Ukraine Family Scheme’. Those who successfully use this route will have the right to work and to claim benefits. However, they will not be able to access other assistance, such as accommodation, as was offered to refugees from Afghanistan, for example, because the Home Office assumes they will be offered support by UK relatives. This approach has been widely criticised as unduly restrictive, given that many European countries have dropped their visa requirements altogether so as to enable a greater number of Ukrainians quickly to reach safety. The Home Secretary rejected this more permissive policy earlier this week, arguing that security and biometric checks imposed by the visa system were essential to prevent extremists and Russian agents entering the UK. But with one million refugees reportedly having fled their homes already, and four million more predicted, many campaigners have pointed out that a fast route to safety is urgently needed. On Friday, the Home Office stated that they were working on an ‘unlimited sponsorship route’ which would not be dependant on family ties, but it remains unclear when this will be launched, or what support it will offer.
In other news:
The House of Lords has defeated the controversial Nationality and Borders Bill for the fourth time, removing clause 11. This measure would have divided refugees into two groups depending on how they arrived in the UK, potentially excluding those who took a route outside the law. For example, those who arrived on small boats through the Channel could have their asylum application automatically ruled inadmissible, face up to four years in prison, be banned from accessing public funds, and have family members banned from joining them. Peers had previously struck out a clause allowing the government to strip individuals of their British citizenship without warning. The changes made by the Lords will now be sent back to the Commons, who can either accept or amend them.
A leaked report has suggested that the Environment Agency has only prosecuted 7% of the serious incidents of pollution investigated between 2016 and 2020. Agents within the organisation prepared case papers for 495 serious incidents in the period, all of which they recommended for prosecution. However, only 35 cases actually reached court after managers intervened. The others were either dropped entirely, or dealt with using less serious sanctions such as a warning letter. These were all incidents of the most serious form of waste pollution, for example, those involving illegal discharges of raw sewage, and some incidents were known to be perpetrated by organised crime groups. Workers within the Agency have linked the lack of action to the severe cuts to the Agency’s resources. The Environment Agency responded to the report by stating that they follow the Code for Crown Prosecutors, which states that prosecution should only be pursued where there is a realistic prospect of a successful conviction, and when it is in the public interest.
The Department of Work and Pensions (DWP) has been sent a letter before action by the Greater Manchester Coalition of Disabled People (GMCDP) and non-profit legal group Foxglove, who claim that the department’s use of a computer algorithm to decide who should be investigated for fraud unlawfully discriminates against disabled people. The two groups claim that there is a lack of transparency about how the algorithm works, and called on the DWP to explain how it prevents discrimination in its use of the algorithm. The DWP responded by saying that human agents always review cases of suspected fraud, and thus the effects of the algorithm were being carefully monitored. The government’s statement on Transparency in Automated Decision making can be found here.
In the courts:
U3 v The Secretary Of State for the Home Department : The Special Immigration Appeals Commission (SIAC) dismissed an appeal by U3, a joint British-Moroccan citizen, against the decision of the Home Secretary to remove her British citizenship in 2017, and prevent her entry clearance in 2019. U3’s citizenship was withdrawn because the Home Office determined that her links with ISIL in Syria implied that she posed a national security risk. In 2019, U3’s children were repatriated to the UK, and U3 sought entry clearance to be reunited with her children, relying on her Article 8 right to respect for her private and family life. Entry clearance was denied, with the Home Secretary claiming that her Article 8 rights were not engaged, and even if they were, her separation from her children was proportionate to the risk she presented to national security. The key issues in this appeal were as follows. First, on what grounds could the SIAC interfere with the SSHD’s decision; Second, whether U3 in fact posed a risk to national security, given that if she did, precedent established that the separation from her children was likely to be proportionate. Concerning the first issue, the court found, following Begum, the SIAC can interfere with the SSHD’s decision even where it concerns national security on the usual grounds available for judicial review. Thus if it was shown that the decision was flawed according to the public law standard of review, and the outcome, but for the error, would have been different, the SIAC could reverse the decision. On the second issue, counsel for the Claimant argued that given the accepted factual evidence of the coercive and abusive relationship U3 had with her husband, with whom she travelled to Syria in 2014, her decision to live in an ISIL-controlled part of Syria did not demonstrate that she was ideologically aligned with ISIL, nor that she had become radicalised. However, the court found that the SSHD could rationally find that U3 herself was aligned with ISIL in light of evidence that she left for Turkey of her own accord, and that she had a good knowledge of the ideology of the group and of the atrocities it had committed. Given this finding, the SSDH’s decision was proportionate, and the appeal was dismissed.
On the UKHRB:
David Burrows discusses the new Divorce, Dissolution and Separation Act.
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