CIVIL LIBERTIES: An Introduction
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Practice Area Overview – Civil Liberties & Human Rights
Civil liberties and human rights practitioners are working in turbulent socio-economic and political times.
The global impact of the COVID-19 pandemic has been felt in everyone’s personal and professional lives; and the justice system is not exempt. While the wheels of justice never stopped entirely, even in the most stringent UK lockdown, they are now moving more slowly and in ways we could not have imagined before the pandemic. Jury trials, where they occur, take place across several courtrooms; entire hearings in all jurisdictions take place by video or audio link with some or all participants in their homes or offices; and some have been adjourned for the foreseeable future.
Securing proper access to justice, especially for vulnerable groups, in these circumstances is a challenge. The legal profession and courts are having to engage with how to protect fair trial and open justice rights in our ‘new normal’.
The pandemic has brought changes to a vast array of state powers, and many engage civil liberties concerns. There have been successful challenges to the wrongful prosecutions of individuals under the emergency lockdown laws and to the imposition of criminal penalties on individuals said to have broken these laws; and civil litigation on issues such as the changes to provision for children with special educational needs and rights of individuals to worship in a mosque. A period of wider reckoning in the form of an inquiry into the state’s handling of the pandemic, and individual inquests and civil claims for those who have died in circumstances where it is said that the state could have done more to protect them, is surely on the horizon.
How 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 unclear. 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 particular Brexit scenario also remains to be seen.
Practitioners across the field are therefore advising and litigating without certainty 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 HRA entered into force, so that our rights were truly “brought home”. There are, however, increasing calls to enhance human rights protection in the UK by creating comparable mechanisms to guarantee economic and social rights.
The Black Lives Matter movement has raised fundamental questions about how we are policed, complicated further by evidence that increased police powers due to the pandemic have been used disproportionately by reference to race and ethnicity. The Home Affairs Select Committee has re-opened its work on race and policing twenty-one years since the Macpherson report. Wider questions about police powers have been and will continue to be explored in cases such as those arising out of the Metropolitan Police’s ban on Extinction Rebellion protests in London; the right to peaceful protest and the increasing use of injunctions by corporations in substitution for police powers; the use by police of automatic facial recognition technology; and the retention by police forces of personal data. The breaches of human rights allegedly perpetrated by undercover police officers in their relationships with women continue to be scrutinised by the Undercover Policing Inquiry and to generate civil claims.
Criminal lawyers are engaged in cutting edge cases involving terrorism, terrorism funding and crypto-asset businesses.
The human rights impact of austerity measures continues to feature heavily in judicial review cases. The challenge to the government’s flagship welfare reform, the 'benefit cap', engaged several major issues of law and is now the leading authority on the test under Article 14 of the European Convention on Human Rights. 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, even before the pressures of the pandemic. The ability of local authorities to meet their core statutory duties has come under considerable pressure, which has led to extensive litigation. The interplay between the hostile environment for immigrants, discrimination and human rights is at the heart of the litigation over the ‘right to rent’ scheme which makes it a criminal offence for landlords to let properties to non-EEA nationals unless they have checked their immigration status.
The #Backto60 group of women have challenged the increase in their pension age from 60 to 65 in the Court of Appeal.
In relation to the UK Overseas Territories, equal marriage claims by gay men and lesbians are being pursued in the Cayman Islands and Bermuda and will be heard by the Privy Council in 2021. Developments in relation to trans rights continue to dominate the political and legal spheres, with cases exploring the often competing tensions between the right to freedom of expression, the right to freedom of religion and privacy rights.
Non-recent sexual abuse continues to generate civil litigation and the Independent Inquiry into Child Sexual Abuse is holding regular public hearings. It has continued to publish a series of reports and will hold further hearings in 2020. The human rights of the bereaved feature in the inquiries/inquests concerning the Grenfell Fire and the Manchester Arena bombing. The Infected Blood Inquiry is also progressing. Public law proceedings have successfully challenged the scope of the inquest arising out of the Salisbury Novichok poisoning.
The rights of those in the military is a continuing theme. A new NGO focussed specifically on supporting the victims of bullying, harassment, discrimination and poor welfare provision in the military, and the families of those who died in service, has recently been established.
In media law, key cases are exploring open justice and access to documents, the concepts of ‘serious harm’ and public interest reporting under the Defamation Act 2013 and the rights of victims of domestic violence to speak out on social media.
The status and rights of those who work in the ‘gig’ economy is at the heart of several employment law cases.
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.
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.
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. The conditions in detention during the pandemic lockdown is likely to require greater scrutiny in the future. There may be increasing doubts about whether the combination of removed legal aid (not recommended by Sir Rupert Jackson in his foundational report) system of conditional fee agreements under which the bulk of clinical negligence and personal injury claims are now made (or not) provides appropriate access to justice so as to be fully compliant with ECHR Article 6 as incorporated by the HRA.
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, 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.
Universal jurisdiction is increasingly being relied upon as a substitution for an embattled International Criminal Court; and as the transitional justice system in Colombia falteringly enters its fifth year, Ukraine looks to learn as its own transitional justice policy starts to emerge.
There is a continued 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.
Doughty Street Chambers