CIVIL LIBERTIES: An Introduction

Civil liberties and human rights practitioners are working in turbulent political times. Whether Brexit will be implemented, leading to withdrawal from the EU Charter of Fundamental Rights, and whether threats of repeal of the Human Rights Act 1998 and even post-Brexit withdrawal from the European Convention on Human Rights will materialise, possibly to be replaced by a ‘British’ bill of rights, all remain uncertain.

Recent domestic jurisprudence clarifies the higher protections afforded by EU law to the rights of EEA nationals to work and to freedom from detention. How those important protections will withstand any Brexit scenario also remains to be seen.

Practitioners across the field are therefore advising and litigating without clarity as to what the legal framework will look like 12 months from now. In some areas, this means greater recourse to other sources of civil liberties and human rights protections, including importantly the common law, to try to ensure that important principles and victories are as secure as possible in the uncertain future.

Whilst the potential of the common law in protecting human rights and civil liberties is not in dispute, the limits of the common law, particularly in light of the sovereignty of Parliament, cannot be overlooked.

Meanwhile, the Human Rights Act continues to provide an effective practical basis for rights protection in the UK. Cases found against the UK before the European Court of Human Rights remain the exception and not the rule since the Act entered into force.

There are increasing calls to enhance human rights protection in the UK by creating comparable mechanisms to guarantee economic and social rights.

The common law’s autonomous importance as a source of protection for fundamental rights in parallel with, but not limited by, the European Convention has been tested in connection with the death penalty. The issue is whether the Home Secretary can lawfully facilitate the death penalty abroad by providing evidence for a capital prosecution, without obtaining the usual prior assurance that the death penalty will not be imposed or carried out.

The human rights impact of austerity measures continues to feature heavily in judicial review cases. This has been exemplified by cases around cuts to benefits such as Personal Independence Payments and challenges to benefit caps. Very significant reductions in local authority budgets have had dramatic effects on local services for adults and children in need of social care and housing for the homeless families. The ability of local authorities to meet their core statutory duties has come under considerable pressure, which has led to extensive litigation. The policy of austerity has been heavily criticised by the UN Special Rapporteur on human rights and extreme poverty. At the end of 2018, he found that levels of child poverty were “not just a disgrace, but a social calamity and an economic disaster.”

The interplay between the hostile environment for immigrants, discrimination and human rights was at the heart of the litigation over tenants’‘right to rent’. This case is going on appeal over the next year and should also lead to greater clarity around potential liability for discrimination committed by third parties.

Work relating to the human rights of the victims of trafficking is cross-disciplinary, including public law challenges to decisions under the National Referral Mechanism and to refusals of support, assistance and housing and age assessments as well as related civil claims, immigration/extradition, criminal defence and employment cases.

The potential liability of Chief Constables in negligence and under the Human Rights Act continues to be tested through cases in the appellate courts. Related to this was the litigation around John Worboys (the ‘black cab rapist’) which has helped define the investigative duty on the police under Article 3.

Challenges to the retention of personal data by police forces continue. The legality of developing facial mapping technology is also under scrutiny. Public law remedies and arguments around the Article 1, Protocol 1 right to property are increasingly being used to challenge the use of police powers including search and seizure operations and restraint and freezing orders.

Children’s rights continue to develop as the ongoing practice of holding children in adult police cells is scrutinised as well as lack of applicability of special measures in the prosecution of children. The Court of Appeal judgment in R v L may set up further challenges to examination of the workings of the minds of adolescents in the most serious of cases.

The breaches of human rights allegedly perpetrated by undercover police officers in their relationships with women continue to generate civil claims, and the Undercover Policing Inquiry is predicted to start hearing evidence in the next year (having dealt, so far, with a raft of anonymity applications).

The right to peaceful protest has led to litigation around the use of broad injunctions and police powers against environmental and anti-fracking protesters. The courts are gearing up for months of prosecutions in relation to the mass arrests during the Extinction Rebellion protests in London earlier in 2019. There are challenges that the prosecutions are an unlawful interference with freedom of expression and right to peaceful assembly. This is all in the 2019 context of the UK’s declaration of an environment and climate emergency.

The extent to which the government will compensate the victims of miscarriages of justice has occupied the Supreme Court and may be tested further in Strasbourg. A UK Parliamentary Commission on Miscarriages of Justice is examining the effectiveness of the Criminal Cases Review Commission.

As women’s reproductive freedoms feature in US politics and television’s The Handmaid’s Tale, so they feature in the courts, with a recent challenge to the lack of free abortions on the NHS to women resident in Northern Ireland in the UK courts which is now bound for Strasbourg, and with the Supreme Court considering whether the near-total ban on abortion in Northern Ireland violates the rights of women pregnant as a result of sexual crime or who have pregnancies with fatal foetal abnormalities. Political developments may mean that Northern Ireland will soon allow both abortion rights as well as equal marriage for LGBT people. Should those political initiatives fail, the courts will be increasingly asked to intervene.

In relation to the UK Overseas Territories, equal marriage claims by gay men and lesbians are being pursued in the Cayman Islands and Bermuda. Those cases will inevitably end up before the Privy Council. Developments in relation to trans rights continue to dominate the political and legal spheres.

The right to freedom of expression of the media continues to lead to high-profile reporting restriction challenges, with recent examples including the Poppi Worthington family law controversy and the Mirror phone-hacking litigation.

The balance between privacy rights and freedom of expression remains before the courts, with a recent development being a clash of rights between faith and teaching about sexual orientation and gender identity.

There has been a greater focus on data protection rights since the General Data Protection Regulation came into effect in May 2018. The Information Commissioner has been imposing bigger fines for breaches, while there has been great concern (including in Parliament) about well-publicised instances of wholesale misuse of online personal data. Another aspect of concern about the internet has led to proposals for an “online harms” bill, with a new duty of care on online providers. The Independent Appeals Panel pursuant to the Digital Economy Act 2017 will finally come into force in 2019/2020.

Court of Protection cases involving the rights of vulnerable individuals who may not have capacity are raising complex questions around consent to sexual relations, medical treatment and marriage, as well as deprivation of liberty and the right to family life.

Personal injury law is involving attempts to vindicate the rights of those injured in dangerous workplaces, often involving arguments over whether they have been employed at all.

In clinical negligence case, there are continued challenges to the standards of healthcare in prisons and immigration detention centres, through both civil actions and inquests.

In the wake of the #metoo movement, there is controversy over the misuse of Non-Disclosure Agreements and proposed legislation in this area. A related development has been the bringing of defamation claims by those accused against their accusers. This has a potentially chilling effect on people speaking out in future, compounded by the cost of litigation and the lack of legal aid for libel claims.

Non-recent sexual abuse continues to generate civil litigation and the Independent Inquiry into Child Sexual Abuse is holding regular public hearings. It has published several reports including those relating to sexual abuse in the child migration programmes, of children in custodial institutions, and in certain elements of both the Anglican Church and the English Benedictine Congregation. It will hold further hearings in 2019/2020.

The conviction of Carl Beech, who alleged there was a paedophile ring at the heart of government, for, amongst other things, perverting the course of justice has made its own impact on victims’ rights and heightened the case for protecting those investigated for sexual offences.

The Infected Blood Inquiry is also progressing.

The human rights of the bereaved feature in the inquiries/inquests concerning the Grenfell Fire and the Manchester Arena bombing. Fresh inquests into the deaths in the Guildford pub bombings will now take place, those into the deaths in the Birmingham pub bombings having concluded in 2019. The inquiry regarding the shooting by police of Anthony Grainger has put the spotlight on police use of lethal force, with the inquiry having found that Mr Grainger was killed in an operation in which the commanding officers "lacked the requisite level of professional competence."

The rights of those in the military is a further emerging theme, ranging from the inquests into the deaths at Deepcut barracks to civil claims on behalf of injured service people.

Misfeasance group litigation is progressing on behalf of a large group of the families of those who died in the Hillsborough disaster.

The Equality and Human Rights Commission is conducting an investigation into the Labour Party’s handling of complaints of antisemitism.

As trade and investment become increasingly global, multi-national corporations and other businesses are having a much greater impact on the lives of the communities in which they or their supply chains operate. Methods of strengthening United Nations Guiding Principles on Business and Human Rights, the OECD Guidelines for Multi-National Enterprises and the Equator Principles are considered against the backdrop of the UN’s sustainable development goals. The Supreme Court has reaffirmed that the jurisdiction of the English courts must be interpreted widely and can include UK-incorporated companies operating abroad.

2019 has seen a celebration of the 70th anniversary of the legal aid scheme. However, ongoing cuts to public funding create significant challenges for individual claimants and concerns about the wider negative impact on access to justice. These issues are compounded by the impact of LASPO on conditional fee agreements in civil liberties cases.

There is a growing campaign for non-means-tested legal aid for bereaved families in inquests, and claimants are increasingly looking to crowdfunding and other creative means of financing litigation.

Given the political uncertainty we face and the threats to public funding, there is a need more than ever for the justice system to protect civil liberties and human rights.