CIVIL LIBERTIES: An Introduction

CHAMBERS AND PARTNERS BAR 2022 OVERVIEW  

CIVIL LIBERTIES AND HUMAN RIGHTS  

Doughty Street Chambers 

Civil liberties and human rights practitioners in the UK have had a busy few years, with many significant changes occurring in rapid succession. For example, the Human Rights Act was going to be scrapped, it was announced, to be replaced with a UK Bill of Rights – a flagship policy of former Justice Secretary Dominic Raab MP. However, in September 2022, in one of her first acts as Prime Minister, Liz Truss MP reversed the plans, telling her cabinet her government would “reassess ways to deliver its agenda.” However, she pledged to stick by the policy to deport asylum seekers to Rwanda, a plan which has proved controversial and has faced repeated legal challenges before the domestic courts and before the European Court of Human Rights. The UK is now grappling with the worst recession the UK has seen in 300 years, rising interest rates and household bills, a severe backlog in many courts, and pressures on local budgets at a time of spiralling costs for mental health support and social services. The need for civil liberties and human rights lawyers could not be any greater – and yet, at this critical time of rising need, there has been a reduction in legal aid providers, and calls to limit the availability of support through crowdfunding and other novel forms of support for public interest litigation.

These challenges come against a backdrop of the UK still feeling the effects of two hugely significant challenges in the past number of years: the COVID-19 pandemic and Brexit. Both have had a profound impact upon the lives of everyone in the UK, and have given rise to difficult human rights issues which continue to play out before the courts.

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. Whilst those particular legal challenges have been concluding and slowly grinding to a halt during 2022, many of these issues are now likely to be explored in another forum, in the Covid-19 Public Inquiry, which has now announced that its first public hearings are scheduled for May 2023, examining the UK’s resilience and preparedness for the pandemic. In addition, 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. Some of the issues arising from the death of Sarah Everard and questions about police-perpetrated violence against women are set to be explored in the Angiolini Inquiry, although a number of women’s rights and rape survivor organisations have criticised the Government for failing to put the Inquiry on a statutory footing and for restricting the terms of reference.

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, despite the temporary truce which appears to have been called on plans to scrap the Human Rights Act. 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.

A series of cases in September 2021 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 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.

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.