17 February 2020
Demonstrators protest government deportation flights outside Downing Street. Credit: The Guardian.
The last week provided no shortage of legal controversy, and posed the author of this blog considerable difficulty when trying to identify which developments deserved the most prominence. In analysing this avalanche of legal news, however, certain key themes started to develop.
The government devoted much of the last week to hastily coming up with new measures by which they could detain people in response to the perceived twin crises of coronavirus and terrorism. Such subject matter is rightly of paramount concern, not only to the government, entrusted with the public’s wellbeing, but to society at large. It also provides fertile ground for legal conflict, pitting as it does justifiable and genuine concerns about safety against the rights and liberties of others. Pushed to the extreme, such legislation can confer wholly disproportionate powers on authorities, and has been the default tool of states attempting to justify oppressive measures across the world and throughout history.
In light of the second stabbing in three months perpetrated by an individual recently released from prison after being convicted of a terrorist offence, the government last week advanced emergency legislation to end the automatic release of terror offenders – Terrorist Offenders (Restriction of Early Release) Bill 2019-2020. The legislation aims to ensure terrorist offenders are not released before the end of their sentence (contrary to normal practice for those serving custodial sentences) without an enhanced risk assessment by the Parole Board. However, concerns were raised about the retrospective nature of such legislation, as well as the scope for prisons to provide an appropriate environment for de-radicalisation and to prevent convicted terrorists recruiting others whilst detained.
Continuing the detention theme, on Monday the government sought to find a legal grounding for powers aimed at compulsorily quarantining those at risk of infection with Covid-19, the less than original name announced this week by the World Health Organisation (WHO) for the novel coronavirus which emerged in China in 2019. The WHO relied upon their own guidelines for the naming of diseases (yes, these do exist) which require disease names to not refer to a geographical location, animal, individual or group of people, as well as being easily pronounceable. In so doing, the WHO has deprived a whole generation of doctors from being immortalised by their discoveries, as well as ensuring that the public must in future spend their time being concerned by the threat of plagues with anodyne names. It seems the days of Whipple’s disease, Swine Flu and pseudopseudohypoparathyroidism are numbered…
As with the emergency terrorist legislation, the introduction of quarantine raises an intense legal dilemma concerning the government’s powers to constrain the liberties of individuals in response to perceived threats to society. The government sought to navigate the legal waters by declaring Covid-19 a “serious and imminent” threat to public health, and by introducing the Health Protection (Coronavirus) 2020 Regulations. For more on these emergency powers, read Jim Duffy’s detailed blog post here. Whilst the government may understandably wish to introduce emergency measures in response to the disease, and would no doubt be widely supported in doing so were a disease to emerge with a greater case fatality rate, the response raises concerns about the powers conveyed on the executive and where the line would be drawn in respect of future epidemics. The response, whilst understandable in respect of an emerging public health crisis, also contrasts with the considered protections evident in the powers of the state to detain people under mental health legislation.
With just as much alacrity as they display for detaining people, the government also pursued their longstanding enthusiasm for banning people this week. On Tuesday, a Home Office deportation flight proceeded with 17 people onboard. However, the remaining 25 planned passengers were allowed to stay in the country after the Court of Appeal made an emergency order on Monday night requiring that those removed had “access to a functioning, non-O2 sim card on or before 3 February”. Concerns had been raised that due to issues with O2’s mobile network in the vicinity of Heathrow detention centres, individuals had been facing deportation without having had adequate access to legal advice. The deportations reflect the government’s increasing determination to deport people where possible after they commit serious offences, notwithstanding the fact that many of those individuals have been resident in the United Kingdom since childhood.
The Prime Minister’s spokesman responded to the Court of Appeal’s frustration of the Home Office’s plans by commenting that:
“The Westminster bubble’s view of people trying to halt this flight with judicial reviews makes the case perfectly to the public about why such a review [of current judicial review practices] is needed.”
Such comment nicely introduces the political news of the week, namely the cabinet reshuffle. Whilst Robert Buckland QC kept his position as Lord Chancellor, the reshuffle saw Geoffrey Cox QC replaced by Suella Braverman as Attorney General, a move which many see as paving the way for proposed changes (read “restrictions”) to the operation of judicial review. Those wondering about Ms Braverman’s attitudes towards judicial scrutiny of the executive need look no further than her own post on ConservativeHome.com (click here).
In other prominent news this week:
- A former police officer who was visited at his place of work and who was told that tweets in which he commented on transgender rights would be recorded as a non-crime “hate incident” was successful in his judicial review at the High Court – Miller, R (On the Application Of) v The College of Policing & Anor  EWHC 225 (Admin) (14 February 2020). The claimant had posted in respect of transgender people: “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.”. In starting his judgment with a quote from an unpublished introduction of George Orwell’s Animal Farm, Mr Justice Julian Knowles went on to state that “in this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society” and that the police’s intervention had had a profound impact on the claimant’s right to freedom of expression.
- The Court of Appeal upheld the decision of the High Court in favour of a hospital’s application to withdraw treatment from a brain dead child, as well as granting anonymity on behalf of the doctors conducting his care. The case is discussed in greater detail by Shaheen Rahman QC here, and comes on the back of several similar high profile cases, including those of Alfie Evans and Charlie Gard.
- The Court of Appeal ruled that Islamic marriage ceremonies are not legally binding, overturning a 2018 ruling that such marriages did indeed fall under British matrimonial law – Her Majesty’s Attorney General v Akhter & Anor  EWCA Civ 122 (14 February 2020). The ruling means that individuals who had undergone a “Nikah” ceremony had no right of redress in the court for division of what would otherwise have been considered joint assets.
On the UK Human Rights Blog: