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CIVIL LIBERTIES: An Introduction

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Doughty Street Chambers 

Civil liberties and human rights practitioners in the UK are certainly living in interesting times, to adopt a phrase often wrongly described as being an ancient Chinese curse. This is due to a combination of factors, including the COVID-19 pandemic, the worst recession the UK has seen in 300 years, a severe backlog in many courts, pressures on local budgets at a time of spiralling costs for mental health support and social services, and a reduction in legal aid providers at a time of rising need.

The COVID-19 pandemic has had a profound impact on the lives of everyone in the UK, affecting all parts of society, public services, and the economy. Since March 2020, the Government’s response to the pandemic has included both using existing statutory powers and speedily developing new legislation to tackle the public health crisis and its impact, particularly the Coronavirus Act 2020 and associated Regulations. Three national lockdowns have been introduced and enforced in an effort to break the chains of transmission of COVID-19, two of which saw schools closed. A number of local lockdowns were also introduced. Extensive powers were granted to police to break up meetings, stop protests, and issue fines. National exams were suspended. Visits to relatives in hospitals and care homes ceased. A Coronavirus Job Retention Scheme was introduced to allow the Government to pay the wages of some employees who couldn’t work, or whose employers could no longer afford to pay them.

As many observers have pointed out, the process of introducing the Coronavirus Act was extremely unusual: the Prime Minister addressed the nation on 23 March 2020, giving the public a “very simple instruction… you must stay at home,” and making clear that if people failed to follow the rules, “the police will have the powers to enforce them.” But those rules did not even exist for a number of days – the announcement came whilst the legal instrument was still being drafted. This pattern continued throughout the pandemic, with new provisions often being announced publicly before Parliament had even seen a draft.

The rushed way in which the legislation was introduced gave rise to particular difficulties, including confusion over the rules themselves and police powers to enforce the rules. A number of lawyers undertook extensive pro bono work, publishing public guides to the Coronavirus statutory framework, to aid public understanding. Lawyers and journalists identified a number of miscarriage of justice cases, in which individuals had been wrongly criminalised through misapplication of the legal framework, resulting in the quashing of a number of convictions. The Crown Prosecution Service announced in May 2020 that it would review every charge brought under the Coronavirus laws – an unprecedented decision.

Substantively, the Coronavirus laws are also very unusual. As barrister and commentator Adam Wagner has pointed out, at its heart is a reversal of the usual presumption that whatever was not unlawful was permitted; under the lockdown laws, people were forbidden from doing anything unless the legislation stated, in terms, that they could. The civil liberties organisation, Liberty, has criticised the Government’s pandemic response for both “over-stepping the mark and under-delivering for those who need support most.” “Instead of hope and support, the Government has watered down our rights, plunged millions into extended lockdowns with confusing communications and prioritised punishment over support – hitting already marginalised communities hardest,” they claimed.

The Government has, throughout this time, made clear that it considers the statutory powers to be essential to tackle the public health threat and provide necessary support to people, businesses, and public services, but also that it will seek to expire the temporary provisions in the Coronavirus Act as soon as possible. In the one-year review of the Coronavirus Act, the Government proposed the permanent expiry of certain provisions and the suspension of others. These reviews will continue.

But legal challenges and threats of litigation concerning the Government’s pandemic response have come thick and fast since March 2020. This has included challenges to the mandatory lockdowns; objections to the requirement that care home workers be vaccinated; disputes concerning the adequacy of provision for educating vulnerable and low income children during lockdown; the absence of ‘free school meals’ arrangements for children during school closures; and judicial review proceedings concerning mandatory hotel quarantine rules, the reach of the furlough scheme and whether it discriminates unfairly against women who have taken maternity leave, the Government’s procurement schemes, and restrictions to the right to protest, including challenges to the Metropolitan Police’s response to the planned vigil in March 2021 by Reclaim the Streets, following the disappearance of Sarah Everard.

In addition to this array of legal challenges, a period of wider reckoning in the form of an inquiry into the state’s handling of the pandemic is also on the horizon, and there are also likely to be 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.

Throughout this time, all courts – from magistrates’ and coroners’ courts to the Supreme Court – have conducted hearings either entirely remotely, through online hearings, or in hybrid form, with some participants attending in person and some online. Securing meaningful access to justice, especially for vulnerable groups, is a particular challenge in these circumstances. This has also led to particular challenges for the media, with serious concerns raised by a number of journalists about a failure by courts to adhere to the open justice principle.

In addition, the implementation of Brexit gives rise to further human rights and civil liberties challenges. The impact of withdrawal from the EU Charter of Fundamental Rights remains unclear, and there are continuing questions over what Brexit will mean for cooperation in fields as diverse as extradition law and internet regulation. There is continued uncertainty over the UK’s relationship with the Council of Europe and the European Convention on Human Rights, given that a number of senior members of the Cabinet are on record as wishing to repeal the Human Rights Act 1998 or introduce a ‘British’ Bill of Rights. Practitioners across the field are therefore advising and litigating without certainty as to what the legal framework will look like in a year 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.

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. Twenty-two years on from the publication of the Macpherson report that followed the inquiry into the racist murder of Stephen Lawrence, in July 2021 the Home Affairs Select Committee found that, whilst policing has changed for the better in many areas, there are still serious and deep-rooted racial disparities, and that for too long neither police forces nor successive governments have taken race equality seriously enough. The Committee has warned that without real and sustainable change, the effectiveness and legitimacy of the police will be undermined, and that it will take another two decades for police forces in England and Wales to reflect the communities they serve – forty years after the Macpherson report raised the issue, and nearly half a century since the racist murder of Stephen Lawrence. The Committee has called for minimum targets to be set for recruitment to ensure diversity and representation.

Other 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. In August 2021, two and a half years after the Centre for Women’s Justice lodged the first police super-complaint highlighting failures by the police to use powers designed to protect victims of domestic violence, HM Inspectorate of Constabulary, Fire and Rescue Services published the outcome of its investigation, finding that the criminal justice system is failing to function effectively when responding to domestic abuse.

Non-recent sexual abuse continues to generate civil litigation and the Independent Inquiry into Child Sexual Abuse continued to hold public hearings throughout 2020 and 2021. It is now drawing to a close and its final reports are awaited.

A series of cases in September 2021 have highlighted particular concerns regarding the rights of pregnant women in prison, following the deaths of two babies born to women in custody, in HMP Bronzefield and HMP Styal. This has led to calls to review both the adequacy of maternity care for women prisoners, and wider questions regarding whether prison is over-used for women. These are likely to be important issues in this field in the months ahead.

The status and rights of those who work in the ‘gig’ economy is at the heart of several employment law cases. The Supreme Court’s ruling in February 2021, dismissing Uber’s appeal against a finding that their drivers are workers, is significant and its ramifications are being explored.

In September 2021, the Law Society disclosed that there are catastrophic legal aid deserts across the country, with millions of people having no access to a provider in key areas such as education, community care and housing. 88% of people in England and Wales have no access to a local education provider, and 63% have no access to a local immigration and asylum legal aid provider. These alarming figures are the result of a dwindling number of legal aid providers: the Ministry of Justice has confirmed that there are currently 1,401 providers with civil legal aid contracts, compared to 2,129 in April 2012. The Law Society has also warned, in September 2021, that “there may not be enough criminal legal aid solicitors to represent people accused by the state of serious crimes after latest government figures show the sector continuing to shrink”: the number of providers holding a criminal legal aid contract has continuously declined since April 2012, from over 1,600 criminal legal aid firms to only 1,080 now. These are extremely concerning statistics, at a time when there is a need more than ever for the justice system to protect civil liberties and human rights.