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New scholarship

The University of Law (ULaw) has teamed up with Amal Clooney and her charity, the Clooney Foundation for Justice (CFJ), to create a new scholarship fund specifically designed to support aspiring human rights lawyers

The funded scholarship, dubbed The Amal Clooney Scholarship for Human Rights Advocates, will offer the winner a fully funded place to study a postgraduate course with the law school giant.

Applicants for the new scholarship will need to “demonstrate a commitment to supporting and defending human rights”, ULaw said.

The recipient can take their pick of the 16 postgraduate courses on offer at ULaw, including the Bar Practice Course (BPC), the LLM Legal Practice (SQE1+2) and the LLM in International Human Rights.

Paths to becoming a lawyer: Find out more about each stage of the journey

A tenant at London human rights set Doughty Street Chambers, Clooney has previously acted as an adviser on the Syrian conflict, represented the ousted president of the Maldives pro bono and famously defended WikiLeaks founder Julian Assange.

Clooney founded the CFJ with her actor husband George Clooney in 2016. It works in over 40 countries, with the aim of providing free legal support to victims of human rights violations.

Commenting on the new scholarship, Clooney said:

“It is an honour to join forces with The University of Law to empower the next generation of lawyers and advocates. I am thrilled that this scholarship will increase access to legal education in human rights and I look forward to seeing the incredible work of future recipients.”

Professor Andrea Nollent, vice chancellor and CEO at ULaw, added: “We are exceptionally proud to launch this new scholarship with Amal Clooney and the CFJ. Amal’s global efforts in the fight against injustice though the Clooney Foundation for Justice and providing free legal support to victims are an inspiration to all future lawyers. We take great pride in working with real change makers in the legal world and supporting a new generation of human rights advocates with this scholarship.”

The deadline for applications is 30 June 2024.

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A hijab-wearing criminal barrister, believed to be one of the first to be appointed a KC, has launched a new international organisation which aims teach women about their human rights.

In March 2022, Legal Cheek covered Sultana Tafadar’s monumental achievement of becoming the first hijab-wearing criminal barrister to secure the title of KC (King’s Counsel).

The ‘Girls Human Rights Hub’ has its own trailblazing inspiration in the form of Tafadar’s 11-year-old daughter Safiya, who “came up with the idea to create a hub where girls could learn more about their rights and how to claim them”.

Acting as a non-profit organisation, the hub’s central purpose is to educate young women aged 11 to 24 on their rights and advocacy, and to equip them with the resources and knowledge needed to create greater gender equity. Specifically, it aims are to reduce gender-based violence, to improve menstrual equity, and to advocate for the rights to education and domestic and sexual safety.

The organisation will also support young women who aspire to be human rights lawyers, by teaching them how litigation can help in achieving gender equity.

Speaking to PA News, Tafadar explained that the hub is premised on “the belief that every girl is entitled to a life free from oppression, discrimination, and violence, and that girls’ rights are fundamental human rights.”

By encouraging young women to learn about, and be involved in, the advocacy and policy that affects these fundamental rights, Tafadar hopes the hub will help create a “world where every girl can achieve her full potential”.

And whilst the career of human rights lawyer might be some time away yet, Safiya says she’s “so excited” to helping young women “fight for their human rights now”.

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There is a growing “disquiet” among City law firm leaders over the likely impact of the Bill of Rights Bill on the UK’s economic competitiveness, the Law Society has said.

Following meetings with senior representatives from large UK firms, Law Society vice president Nick Emmerson has criticised the proposed bill for its potential to “create legal confusion and uncertainty”.

Emmerson said the altered relationship between the courts and parliament, reduced state accountability for rights breaches, and the heightened risk of regulatory overreach by local government and regulators would damage the UK’s attractiveness as a place to do business.

He explained that the legislative proposal would throw “a further shroud of uncertainty over the interpretation and future application of long-established contractual provisions and arrangements”, in the view of these firms.

Emerson concluded:

“City lawyers who deal extensively with foreign clients, governments, regulators and representative bodies tell us the Bill of Rights Bill is being discussed with a mixture of surprise and horror. The bill hands our international competitors a stick with which to beat the reputation of the UK jurisdiction and take business away.”

The bill intends to repeal the Human Rights Act 1998 and empower UK courts to disregard rulings from the European Court of Human Rights with the objective, according to Raab’s statement in parliament, of reinforcing “quintessential UK rights”.

The proposed reform has long been controversial among members of the legal profession and the Conservative party.

In July, Lord Pannick QC told the Joint Committee on Human Rights that “if this Bill were being sold in the shops, the Lord Chancellor, in my view, would be at risk of prosecution for false or deceptive advertising”.

During Raab’s first stint at the top of the Ministry of Justice (MoJ), former Justice Secretary Robert Buckland also voiced concerns about the bill, indicating that it needed to be reviewed, whilst the Truss administration, that saw Brandon Lewis take up the post of Justice Sec, shelved the proposal.

However, with Raab’s return to the MoJ in October, the Bill was revived with the former Linklaters man highlighting how the bill would put an end to “the mission creep of continuously expanding human rights laws”, re-establish proper democratic oversight from parliament, and make “crystal clear” that the UK Supreme Court is not subordinate to the European Court of Human Rights.

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A Scottish human rights lawyer, who went out to Ukraine to help deliver aid to the war-torn country, has cycled 1,250 miles back to her home in Edinburgh to raise money for charity.

Andrea Fraser, 31, set out to Poland in October with the aim of delivering supplies and equipment to local volunteers in Lviv in the west of Ukraine.

The Glasgow law grad, whose legal career includes stints at Scottish outfit’s Brodies and Anderson Strathern, did shifts driving an ambulance loaded with maternity supplies to the city that has been attacked by Russian missiles.

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Having helped to bring thousands of pounds worth of aid across the Polish-Ukrainian border, Fraser then began a gruelling three-week 1,250-mile bike ride back to home to raise funds for Baby Lifeline, a charity which promotes the safe care of pregnant women and newborn babies.

Her journey took her through Poland, the Czech Republic, Germany, and the Netherlands with the very last leg being from Berwick-upon-Tweed to Edinburgh and included plenty of “difficult days of pedalling up relentless hills in the pouring rain and coming off my bike.”

She told BBC News: “There were days when the cycling was really tough, but it was nothing compared to the levels of discomfort and risk that people in Ukraine are going through.”

The most lovely thing happened this evening

On my journey from Ukraine to Scotland by bike #cycleforukraine #Ukraine pic.twitter.com/rtYCCkQCjk

— Andrea Fraser (@AndreaMayFraser) October 25, 2022

But Fraser also relished the opportunities of her cycling odyssey: “there have been beautiful days, like the one on which I arrived in Wurzburg, Germany, and was invited to spend an evening with members of the local Ukrainian community there.”

At the time of writing, Fraser has raised over £7,000 for Baby Lifeline. You can support the charity’s work here.

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Key human rights such as freedom of expression and assembly are no defence for those being prosecuted for causing “significant” damage to property during a protest, the Court of Appeal has said.

Lord Chief Justice Lord Burnett handed down the judgment in response to three issues raised by the then Attorney General Suella Braverman following the acquittal of four defendants (known as the Colston Four) for criminal damage in January.

The four protestors were on trial for tearing down and damaging the Grade II listed statue of Edward Colston during a peaceful Black Lives Matter protest in Bristol in June 2020. Colston has become a controversial figure in the city owing to his connections with the Royal Africa Company which transported African slaves to the West Indies and America.

The issues raised by the former Attorney General questioned whether Articles 9, 10 and 11 of the European Convention on Human Rights (ECHR) may be used as a defence for those being prosecuted for damaging property during a protest. This was one of the defences raised in the trial of the Colston Four.

The court concluded that “prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate.”

Lord Burnett also stressed that this ruling had “no bearing on the acquittals” of the Colston Four in January. He indicated, however, that where the damage in question was “minor or temporary”, current Strasbourg case law suggests that these human rights defences would apply — though seeking to prosecute someone for such an act as “scrawling a message on a pavement using water soluble paint”, in his view, “might well be a disproportionate response”.

The decision is perhaps unsurprising given that earlier this year two of the judges deciding this case had ruled that for any offences arising out of non-violent protest, the prosecution need not prove that a conviction is a proportionate interference with a defendant’s rights under Article 10 and 11 of the ECHR.

Responding to the ruling, former Justice Minister and Tory peer tweeted that the Attorney General had “made a Reference — as was her legal right — and the Court agreed”, retweeting the KC and founder of the Good Law Project Jo Maugham’s comments from January appearing to criticise the move.

“Diasappointed” by the decision, Katy Watts, a lawyer for the human rights group Liberty which provided written submissions for the case, wrote. “Instead of continuing to heap protections on problematic statues, the government needs to uphold and protect people’s fundamental rights, especially when it comes to protest rights,” she said. Watts added that the effect of the decision is that “if the Colston Four were tried today, it is much more likely that they would be convicted”.

Raj Chada, partner at Hodge Jones & Allen, the London law firm which acted for the acquitted Colston Four, also said he was disappointed by the ruling, adding that “the statue is still on public display as a monument to the evils of the slave trade, not as an obscene glorification of a slave trader. It is a shame that this is the Attorney General’s focus rather than the multiple crises facing this country”.

Elsewhere, the government’s new Charities Act 2022 will provide museums with greater powers to dispose of objects where there is a compelling moral obligation to do so. This will have the effect of overriding a 2005 High Court ruling that prevented trustees of the British Museum from returning property based on a moral obligation.

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The government’s planned reforms of the 1998 Human Rights Act have been shelved whilst “the most effective means to deliver objectives through our legislative agenda” is being mulled over by the new Truss administration.

Reforming the Human Rights Act was a pet project of the former Justice Secretary and ex-Linklaters trainee Dominic Raab which came to fruition during his stint as Lord Chancellor when he proposed the Bill of Rights Bill. The Bill would have repealed the Human Rights Act 1998 and introduced a new permission stage for human rights challenges.

The objective of the Bill was, according to the former Justice Secretary’s statement in Parliament, to “reinforce quintessential UK rights”. The proposed legislation had received a strong response from several prominent lawyers and MPs including Raab’s predecessor Robert Buckland who indicated that the Bill needed to be reviewed.

In July, Lord Pannick QC told the Joint Committee on Human Rights: “If this Bill were being sold in the shops the Lord Chancellor, in my view, would be at risk of prosecution for false or deceptive advertising.”

On Tuesday, Raab was sacked from his position at Lord Chancellor and Justice Secretary by Liz Truss with the PM’s new administration being quick scrap the former Linklaters’ man’s plans.

On the news that the Bill had been shelved, Law Society President Stephanie Boyce took to Twitter to share her relief. She wrote: “The Bill needs a complete rethink, the current draft represents a lurch backwards for British justice which would disempower people in Britain while giving the state more unfettered authority.”

Prominent legal commentator David Allen-Green tweeted: “The Human Rights Act 1998 is still there. And @DominicRaab is not”. Allen-Green then stated that the ex-Justice Sec’s account had blocked his Twitter account (@law_and_policy) in response to the Tweet.

In the comments the best-selling author the Secret Barrister noted that he too was blocked by Raab’s Twitter account. The Secret Barrister has been critical of the way Raab has handled tensions between the Ministry of Justice and criminal barristers with a recent escalation culminating in the launch of an indefinite, uninterrupted strike on 5 September by Criminal Bar Association (CBA).

Raab’s replacement Brandon Lewis is set to meet with the CBA next. Lewis announced on Twitter: “Hundreds more victims seeing justice delayed – these statistics show the impact of the Bar strike. I’ll be meeting @thebarcouncil @TheLawSociety @TheCriminalBar to emphasise the need to get back to work and get justice moving again.”

Kirsty Brimelow, Chair of the CBA, commented: “I look forward to meeting the Lord Chancellor and hope this introductory meeting urgently will be followed by opening of negotiations to resolve the criminal barristers’ action of stopping work on cases as a result of the crisis in the CJS [Criminal Justice System]”

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“I s’pose the other boy’s fillin’ all my dates?”

Early 20th century US columnist George Ade’s fictional character, the heartbroken office clerk named Artie, confronted his ladylove after finding out she had dumped him for someone else. Interestingly, the origins of the word “date” in its romantic sense can be traced to the 1896 pages of the Chicago Record/Herald. With booming industrialisation, the lexicons of love changed, and ‘courtship’ became ‘dating’. Those were days before the two world wars, and human rights issues couldn’t, in the slightest degree, be associated with an amorous subject like “dating”.

Our times are different, and with booming digitisation, the modern concept of dating is being identified by the swipe culture. Dating apps have reorientated how an entire generation meets new people. If one is looking for love, dating apps are the best way to go about it.

Rights at stake

As a student of law, one must wonder, whether these apps are being mindful of the users’ human rights. A damning report published by the Norwegian Consumer Council provides evidence to the contrary. A recent Netflix documentary also provides an insight into the dark and sinister side of the dating app world. Whereas a BBC Three documentary reveals, based on data from the National Crime Agency, that sexual offences linked to dating apps doubled between 2017 and 2020 and that half of the victims who had reported someone, were dissatisfied with the dating platforms’ response.

Business corporations have essential human rights’ commitments. Under the UN’s ‘Protect, Respect and Remedy’ framework, corporations have to adhere to a human rights due diligence. It is the responsibility of business enterprises to identify, prevent, mitigate and remedy any adverse human rights impacts that are directly linked to their operations, products or services. So then, are these corporations behind the popular dating apps really fulfilling their human rights’ commitments?

Sexual and gender-based violence is now being closely linked to the digital realm. The umbrella concept of technology-facilitated sexual violence (TFSV) encompasses all that negative use of technology which enables violence, harassment and abuse. Dating apps are proving to be a suitable avenue for TFSV. This can take many forms. On the platform itself, unwelcome sexual conduct and sexualised comments, including unsolicited sexual images/messages are commonplace. Abuse and violence may also become part of the physical encounters facilitated by these apps. The geolocation features associated with these apps enable crimes such as stalking.

A 2018 survey in Australia concluded that 70% females and 67% gender-diverse persons were at a higher risk of being victims of TFSV. In 2020, A Pew Research Center study reported that 57% of female online dating app users have experienced some sort of harassment on these platforms. In Opuz v Turkey, the European Court of Human Rights highlighted the fact that violence of a gendered type which affects women disproportionately, is also violative of the non-discrimination principle enshrined in Art 14 of the European Convention on Human Rights.

Is it really private?

TFSV is just one aspect of the pernicious upshots of the dating app world. The users’ right to privacy is also an inviolable human right. Unfortunately, examples from Egypt, Lebanon and Iran bear witness to the treacherous use of these technologies. State authorities have reportedly used data gathered from these apps to persecute LGBTQ+ individuals for ‘indecency’. According to Human Rights Watch, such snoopy practices, employed to curb dissent, are violative of the users’ multiple fundamental rights. More importantly, there is little being done by the developers to protect their users from such interferences. According to an older report by the UN High Commissioner for Human Rights (OHCHR), as part of the human rights due diligence framework, business enterprises “are expected to communicate transparently with users about risks and compliance with government demands”.

Jurisdictions around the world have had mixed responses when holding platform developers liable. Being intermediaries, platforms have limited or no liability for illegal acts committed by third parties in the US. In a lawsuit against a dating app, it was held that platforms are protected from liability under the infamous section 230 of the Communications Decency Act. Contrastingly, Israeli courts have held these platforms liable for failing to remove fake profiles. In the UK, the government has promised “ambitious plans for a new system of accountability and oversight for tech companies” and wants the country “to be the safest place in the world to go online”.

A 2017 study analyses the new ‘anti-rape’ features which have emerged to address TFSV. In analysing 807 features across 215 different apps, the study notes that these features, being farcical stopgaps, only serve the purpose of improving perceptions. Eighty percent of these features are made ‘to be used during a specific incident’. These features are reassuring, but would most likely be ineffective in a real attack because they do not address the various forms of coercion a perpetrator would probably use, nor are they relevant to the multiple circumstances a victim may face. A more recent study of mainly teenage respondents concluded that such features are only designed to address the common perceptions of sexual abuse, ie gender exclusiveness and generalised safety dilemmas.

The origins of the word “date”, as it appeared in print, had a light-hearted flavour. But the human rights concerns of modern-day app dates, do not. It is highly likely that these dating platforms, in the foreseeable future, will use and augment other emerging technologies (for example augmented or virtual reality) and data from other mediums (for example clothing data, lifestyle preferences, users’ medical conditions, physical proximity and interactions) which could create new rights’ issues.

It is important for all stakeholders to consider a research agenda which assesses the impacts and risks beforehand, in order to develop legislation, regulation, best practices and a more robust due diligence framework. For now, all these emerging (human rights) concerns have been receiving, at best, sporadic attention.

Tanzeel ur Rehman is a third year law student at the University of Sindh, Pakistan.

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For more than 50 years, the Chagossians, a small Creole ethnic group native to the Chagos Islands, have been fighting the UK government for the right to return to their homeland. The Chagos Islands, an archipelago in the Indian Ocean between Tanzania and Indonesia, is a British colony, however the legitimacy of the colonisation is questionable. In 2019, the International Court of Justice found that the UK was in breach of international law through its continued claim to the Chagos Islands. Britain has a shameful history of ill-treatment of the Chagossians, which began through the forcible removal of the islanders from the archipelago in the 1960s, leaving many of the community destitute. In July 2022, the government proposed a policy which may offer some concessions in the form of a route to UK citizenship. This is not nearly enough, and the Chagossians’ search for justice continues.

The Chagos Archipelago in the Indian Ocean belonged to Mauritius, and in 1968, when Mauritius gained independence from Britain, Britain decided to keep Chagos. Chagos could only be separated from Mauritius if it had no permanent population under international law. This is when the erasure of the Chagossians began as British politicians campaigned that there were no permanent inhabitants on the island. The British government expelled the inhabitants of Chagos to make way for an American military base on the archipelago’s largest island, Diego Garcia. The ‘payment’ Britain received from the Americans for the islands was reportedly a discount on the Polaris nuclear submarine system.

Taking the campaign to court

Looking at the court’s perception of the reported human rights violations, we can begin with R (on the application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] 3 LRC 249, where the High Court deemed the removal of the islanders illegal. It was also found that both the British and American governments had deliberately misled not only their own legislative bodies but the United Nations through their claims that there were no permanent inhabitants on the island. In 2004, however, the government nullified the High Court’s decision by invoking the royal prerogative, ultimately, the prerogative powers of the Crown appear to have been used as a tool for depopulation and the violation of human rights through a façade of supposed decolonisation.

In May 2006, the High Court ruled that the Orders-in-council were unlawful and that the islanders were entitled to return to Chagos, however, this was overturned in the 2008 House of Lords decision in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61.

The courts in Strasbourg and The Hague

The treatment of the Chagossians was further emphasised through the 2012 European Court of Human Rights judgment in Chagos Islanders v The United Kingdom ECHR 460 (2012). The application here was deemed inadmissible as the Court felt it did not have jurisdiction over a colonial territory to which Britain had not actively extended its European human rights obligations. The court contended that the territorial application of Article 56 of the European Convention on Human Rights could not be applied as it was not expressly extended to the territory. The deep-rooted issues in the process of decolonisation are apparent, and the colonial past — and perhaps present — of European states should be developed to recognise that human rights made under the European Convention on Human Rights are unequivocally universal. The case of the Chagos Islands is indeed an example of colonialism persisting in the twenty-first century, as those displaced citizens have repeatedly been denied the right to return to their homeland.

An advisory opinion was issued by the International Court of Justice on the legal consequences of the separation of the Chagos archipelago from Mauritius whereby it concluded that the process of decolonisation of Mauritius was not lawfully completed (ICJ Advisory Opinion, 25 February 2019, General List No. 169). The court further concluded that the UK had an obligation to bring to an end its administration of the Chagos archipelago “as rapidly as possible”. The International Court of Justices’ opinion, while only advisory, was a step in the right direction to bring colonialism to an end and promote human rights, however, it also did little to focus on the right of the Chagossians to return to their homeland.

The United Nations General Assembly accepted the advisory opinion and voted in a 116-6 motion to set a six-month deadline for Britain to withdraw from the Chagos islands. It has now been four years and Britain has not withdrawn. In its apparent refusal to withdraw from Chagos, Britain has been described as a “rogue state” (for example, by John Reynolds, in his book Decolonising the Chagos Islands?), and further raises the question of why Britain continues to colonise Chagos.

The Nationality and Borders Bill

The latest attempt of the British government to appear to listen to the complaints and demands is through the release of a proposed policy paper in July 2022, the Nationality and Borders Bill: Chagossian nationality factsheet. The proposal states that, currently, descendants of the removed Chagossians have no entitlement to British nationality, and so the introduction of this Bill will allow direct descendants to acquire both British nationality, and British Overseas Territory citizenship. While allowing descendants to obtain British nationality may appear to be a development, what the Chagossians want is to be able to return to their homeland. This Bill is not what the Chagossians have spent years fighting for. For them, it’s not justice.

Rachael Shaw is a recent graduate from Sheffield Hallam University and is interested in human rights law.

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It’s a term that we all think we understand. But what does “human rights law” mean? Martin Luther King believes: “injustice anywhere is a threat to justice everywhere.” Peter Benenson, founder of Amnesty International, said: “The candle burns not for us, but for all those whom we failed to rescue from prison, who were shot on the way to prison, who were tortured, who were kidnapped, who ‘disappeared’. That’s what the candle is for.”

One thing’s for sure, anyone keen to become the next Ben Emerson QC, founder of leading human rights chambers, Matrix and the man who practically wrote the UK’s Human Rights Act 1998, has to work extremely hard for, compared with other specialist niche areas, lower remuneration, at least in the early years.

The University of Law’s Niall Carlin qualified and practised as a barrister specialising in crime which fits naturally with human rights work. He agrees it’s hard to break into the specialism, and the competition is tough. He says: “It’s not just about academic capabilities and qualifications. It’s also about your CV, which needs to prove that you are committed to human rights.”

Carlin took a circuitous route before finding the right chambers: “I was lucky enough to be selected for an internship with a UK/ US charitable organisation called Amicus ALJ, working for a law firm conducting US death row cases. I had a range of responsibilities for a great law firm in Texas that represented indigent defendants who’d been sentenced to execution.”

Kim Kardashian promotes anti-death penalty practices and is now a vocal qualified lawyer in California, as well as being a global superstar and influencer. “Whatever you think of the show, it’s great that she’s promoting this cause,” Carlin says.

How stressful is that kind of work then? “Yes, quite demanding, especially emotionally, at times. Legal teams pore over thousands of pages of evidence, transcripts, trying to find items that the police did not initially disclose, to find a chink, a ray of light, a legal argument that might lead a judge somewhere to convert the sentence.”

Students are taught the basics on the LLB. Many go on to do a masters with a strong human rights angle. But what kind of work, day-to-day, are we talking about as a civil liberties barrister or solicitor? Carlin tells us:

“The Human Rights Act and the European equivalent, the European Convention (ECHR) impacts on many types of law: family, employment, criminal. It’s central to criminal law of course: fair trial and Article 6. But ideally you need get a training contract or pupillage at one of the specialist firms or chambers — mostly in London but some in other big cities too.”

He adds: “Practice areas can include immigration and asylum, actions against the police, inquests and deaths in custody and prisoners’ rights. Right now, those interested will have been avidly following the Grenfell inquest.”

While some of the bigger corporate firms give monetary and pro bono assistance to Amicus ALJ and other similar organisations like Reprieve, you won’t get a full-time caseload as a trainee and can’t specialise.

Amicus are always looking for UK law graduate interns to travel to the United States to help death penalty litigation law firms and volunteers generally — Amicus-alj.org — and it’s a good place to start to gain the experience you need to get a job in human rights law. “You could also volunteer at a local law centre or citizens advice office. Or an immigration law centre. I cannot stress how important it is to show you are committed to human rights related work. ULaw have an excellent employability team who give lots of advice to aspiring civil liberties lawyers — it’s very popular. Every day is different that’s also what they are attracted to.”

So, who are Carlin’s most inspirational lawyers: who would he have for his fantasy dinner party? “Ahhh — well that would have to be Barack Obama, Abe Lincoln, Atticus Finch (To Kill a Mockingbird), Mahatma Gandhi, Amal Clooney, and UK super lawyer Geoffrey Robertson QC,” he says. “They are all inspirational and have been instrumental in the huge steps forward we’ve made in the world for the better. Gandhi was a vegetarian, so meat is off the menu.”

While Carlin worries about the future, changes to the Human Rights Act, a Bill of Rights that’s on the horizon, he is extremely positive.

“We won’t move too far away from the ECHR: after all Winston Churchill called for its creation”, he says. “We have some of the world’s best human rights lawyers here in the UK. Some people may say it’s badly paid and compared with the City firms, it could be. But what you get back is interesting, exciting work and job satisfaction. If you’re interested in getting involved and making a difference to the lives of others less well-off and in sometimes dire life and death situations, or helping families get answers about the death of their loved ones, you can get involved now at university: mini pupillages, shadowing barristers, work experience, volunteering at Amicus ALJ.”

Niall Carlin will be speaking at ‘How to become a human rights lawyer — with Bindmans, Cornerstone Barristers and ULaw’, a virtual student event taking place tomorrow (Tuesday 19 July). You can apply for one of the final few (and free) places to attend the event now.

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This article will argue that positive human rights obligations should be taught and embraced more widely than they have yet been. This argument will reference the European Convention of Human Rights (ECHR) because that is the human rights framework with which readers may be most familiar. However, the argument applies to any other human rights framework recognising positive obligations (e.g. the American Convention on Human Rights: see Velásquez-Rodríguez v Honduras [166]).

The argument takes three parts. First, positive obligations are introduced. Second, positive obligations’ unique normative importance is explained. Third, the case for states’ observance of positive obligations is made.

1. What are positive obligations?

Human rights law imposes two different types of obligation. On the one hand, there are negative obligations. These forbid the state from interfering in right-bearer’s affairs. For example, the right to life (Article 2 ECHR) imposes a negative obligation generally forbidding states from intentionally killing right-bearing citizens. On the other, there are positive obligations. These require the state to take action, generally to protect citizens against threats to their human rights. For example, Article 2 ECHR imposes a positive obligation requiring states to take steps to protect citizens identifiable in advance as potential homicide victims.

Positive obligations take many forms. They include requirements that states: (i) protect individuals’ ECHR rights in emergencies; (ii) establish legal and administrative frameworks to protect ECHR rights; (iii) provide information or resources to individuals to protect ECHR rights and; (iv) provide redress for breaches of ECHR rights. Yet common to all is that states are required to act, not forbidden from doing so.

Positive obligations are poorly understood. Doctrinally, the European Court of Human Rights (ECtHR) has declined to “develop a general theory of positive obligations” (Platform Ärtze für das Leben v Austria [31]) instead deciding cases and principles on an ad hoc basis. In academic literature, as Laurens Lavrysen recognised, “the concept of positive obligations remains undertheorised”. There exist only four books comprehensively studying positive obligations and all are, or risk soon becoming, outdated: (1) Cordula Dröge’s ‘Positive Verpflichtungen der Staaten […]’ in 2003; (2) Alistair Mowbray’s ‘The Development of Positive Obligations […]’ in 2004; (3) Dimitris Xenos’, ‘The Positive Obligations of the State […]’ in 2013 and (4) Laurens Lavrysen’s ‘Human Rights in a Positive State’ in 2016. Against this background, law schools may foreground negative obligations and neglect positive obligations. (Here, reflect on your own positive obligations tuition if you wish.)

2. Why should positive obligations be taught and embraced more widely?

Positive obligations deserve greater attention because they can uplift avoidably vulnerable persons to the minimum standard of well-being that human rights law might reasonably be considered to require. That proposition is now broken into three stages so that it may be best understood.

(i) Human rights require that everyone enjoys a minimum standard of well-being

Article 1 of ECHR provides that states “shall secure to everyone within their jurisdiction the [ECHR] rights and freedoms”. That enjoinder has two implications. First, most subtly, that human rights law envisages a minimum standard of well-being below which rights-bearers may not fall. Namely — and irrespective of their financial and other circumstances — rights-bearers must not be enslaved (Article 4 ECHR); must generally have liberty and security of person (Article 5 ECHR); not experience unlawful discrimination (Article 14 ECHR); not experience torture (Article 3 ECHR) or threats to life (Article 2 ECHR) (etc). Effectively, human rights law protects different aspects of well-being. Together, they converge to form what we may call a ‘minimum standard of well-being’ below which EHCR considers rights-bearers should not sink.

The second implication is that that minimum standard of well-being should be enjoyed universally — that is, by ‘everyone in the jurisdiction’.

(ii) Not everybody in society enjoys that minimum standard of well-being

While human rights law envisages that everybody should enjoy the same minimum standard, there is in fact considerable variance in right-bearers’ well-being. The remainder of this article will explain variance in well-being with reference to three phenomena: modern slavery, disability and domestic violence.

In the year ending 2020 between 10,000 and 13,000 persons were potential victims of modern slavery in the UK. Victims of modern slavery were not enjoying the minimum standard of well-being envisaged by human rights law. That is because, rather than enjoying the full package of rights implied by that standard, the Article 4 ECHR protection at least was absent.

Disabled people, too, may fall below the minimum standard of well-being that human rights requires. Disabled persons are more likely to be the victims of crime than non-disabled persons, with rates of victimhood standing at 23.1% and 20.7% of populations respectively. This heightened vulnerability to interference with possessions and private life (contrary to Article 11, Protocol 1 and Article 8 ECHR) is inconsistent with the ideal of an indiscriminately enjoyed security in the same.

Finally, there is societal variance in individuals’ security of person. Women are more likely than men to die in episodes of domestic violence, with women comprising 76% of victims in the year ending 2020. Accordingly, whilst the minimum standard of well-being envisages indiscriminate security of person, women in fact experience a heightened vulnerability to violence.

(iii) Positive obligations compel states to minimise avoidable vulnerability

Positive obligations are the final piece of the puzzle. Arising parasitically upon avoidable vulnerabilities, positive obligations compel states to try and uplift vulnerable persons to that minimum standard of well-being which human rights law might reasonably be considered to require.

For example, victims of modern slavery are not intractably so. As Iffat Idris observes, providing victims with accommodation, medical care and asylum support can help reduce their vulnerability. Against this background, in 2010 the ECtHR in Rantsev v Cyprus and Russia held that states have positive obligations to prohibit, prosecute and punish actions aimed at maintaining a person in a situation of slavery. In 2021, the ECtHR added in V.C.L. and A.N. v United Kingdom that states have positive obligations to protect victims of trafficking. Through these judgments, positive obligations were deployed to minimise the avoidable vulnerability associated with modern slavery and restore victims to the higher standard of well-being enjoyed by others in the population.

Disability, too, need not imply disadvantage. Disabled people’s greater vulnerability to crime was addressed in Đorđević v Croatia. Therein, the ECtHR held that states have a positive obligation, when they know that a disabled person is suffering serious harassment from other citizens, to try and stop that harassment from continuing. Connectedly, positive obligations have operated to minimise disabled persons’ avoidable exclusion from civic engagement. In Zehenter v Austria, for example, the ECtHR held that states have positive obligations to ensure that procedural safeguards are in place to protect disabled litigants from dispossession of their homes. Thereby, positive obligations were again utilised to uplift vulnerable persons’ well-being by minimising avoidable disadvantage.

Finally, consider domestic violence. States have since 1998 been obliged to try and save the lives of individuals identifiable in advance as potential homicide victims. Yet the ECtHR has since held that states must observe that duty with ‘special diligence’ when putative victims are women (Tkhelidze v Georgia) and/or children (Kurt v Austria). Strictly speaking, the minimum standard of well-being requires a reduction in women’s very vulnerability to domestic violence, rather than being contented with authorities desperately trying to prevent fatalities at the eleventh hour. Nevertheless, requiring that authorities pay special care to the especially vulnerable is consistent with, or else advances towards, the ideal of indiscrete enjoyment of security of person.

3. Why should states observe positive obligations?

When ratifying the ECHR, states affirmed to “secure to everyone… the [ECHR] rights and freedoms” (Article 1 ECHR). It is neither unforeseeable nor inconsistent with that affirmation that so securing may require uplifting the well-being of the especially vulnerable.

Connectedly, states should observe positive obligations because it is often not burdensome for them to do so. Frequently positive obligations require not that states actually protect an ECHR right, but only that they try to do so. For example, in Đorđević v Croatia, the state was liable not because it failed to protect the disabled person from serious harassment, but because it had altogether failed to try. Conversely, in Kurt v Austria, state liability did not attach because, notwithstanding that fatality eventually occurred, the state had discharged their duty of ‘special diligence’ in investigating the domestic violence that preceded it.

Nor are states overburdened when positive obligations require more than mere attempts. Obligations requiring establishment of legal or administrative frameworks, for example, are frequently ‘framed at a high level of generality” (R (Home Secretary) v First-Tier Tribunal [2021], [110]). Such obligations do not compel states to expend any particular budget or adopt any particular practices. Rather, so long as the right is proportionally protected in light of its importance and available state resources, the state enjoys discretion in its choice of implementing measures.

Consequently, there is little legal substance in criticisms, such as those in recent consultations to reform the Human Rights Act 1998, that positive obligations are “overly prescriptive” because they require “public services to allocate scarce resources to contest and mitigate legal liability — when that public money would be better spent on protecting the public”. Bemoaning special protections for the vulnerable is a normative complaint, not a legal one. The criticism does not secure that positive obligations’ special concern for the vulnerable was ever unforeseeable or is otherwise legally illegitimate or subversive.

4. Conclusion

This article has argued that positive obligations should be taught and embraced more widely because, consistently with the ideal that everyone should enjoy a minimum standard of well-being, positive obligations can uplift groups whose relationship with the state perpetuates avoidable disadvantage.

For those who already enjoy the minimum standard of well-being, states’ non-interference genuinely may be all that is required for human rights enjoyment. Yet, if scholars and practitioners seek to transcend that superficial perspective and extend human rights’ promises of universality to the vulnerable, positive obligations must be taken up.

Jordan Briggs graduated in law from the University of Oxford and holds an LLM from the LSE. He is an aspiring barrister currently studying the bar course at City Law School.

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We didn’t learn much from the Good Morning Britain interview with Shamima Begum. The interview was largely about whether Begum had reformed. For the general public to make that call at present is really to put the cart before the horse. We don’t know the depths of her moral transgressions as the details surrounding much of her offending remain unclear.

There are outstanding questions about whether Begum was groomed, even brainwashed, into travelling to Syria and joining ISIL as a 15-year-old in 2015. But, at the very least, she should still be condemned for her association with Daesh, although whether she would bear criminal liability at trial remains to be seen.

Begum remained committed to Daesh ideology as an adult in her infamous 2019 interview with BBC News. At that point, she had spent four years in Syria, was living in a refugee camp outside ISIL territory but partially justified some of the group’s crimes, such as the Manchester Arena bombing. Yet, what about her responsibility for the most heinous crimes she is alleged to have committed? Did she, for example, help stitch suicide vests as sources claim? The reliability of the (leaked) Whitehall information about her alleged offences remains untested in court and the allegations are denied by Begum herself.

People may decide it more likely that Begum is reformable if she had been a deplorable supporter of the ISIL terrorist group rather than an active participant in ISIL atrocities. We just don’t know for sure just how involved she was.

The most revealing Good Morning Britain interview last week was with Sajid Javid. As Home Secretary in 2019, Javid deprived Begum of her citizenship on grounds of national security and prevented Begum from returning to the UK. As Begum cannot enter the UK to appear in person before our courts, she does not have sufficient fair trial rights to face legal proceedings. Namely, she cannot give proper instructions to her lawyers nor provide evidence. For the moment, she cannot appeal her deprivation of British citizenship nor face a criminal trial. On Good Morning Britain, host Susanna Reid asked Javid why the UK lacked the security to put Begum on trial to test her claims. Presumably referring to the difficulties of prosecuting Begum at a criminal trial, Javid responded:

“Again, I don’t want to talk about the detail of a particular individual, but I would say this, when someone leaves the UK, full of hate for the UK, and goes out somewhere like Syria to kill innocent people, that it’s very hard to gather evidence.

I think people can understand why it would be hard for the UK authorities to gather the evidence that might be necessary for a court. So you have to use the tools that you have in the box, I’m not pretending they are perfect in any way, but you have to use the tools that are available to you as a minister to protect the British people and that’s what matters…”

Even taking into account the no ‘particular individual’ comment, the implication is that Javid did not view the UK justice system as an effective tool to protect the British people in Begum’s case.

Was Javid right? There would be very real challenges for convicting Begum at a criminal trial, despite a number of possible charges. Feasibly, Begum could go unpunished or only face a short sentence. This outcome could raise not only the appearance that Begum had evaded justice, as recognisable to much of the public, but also national security concerns about her being allowed out of prison if she really is as dangerous as the government supposes. Even ‘free’, Begum could still possibly be subject to restrictions on her movement and communication, following a Terrorism Prevention and Investigation Measures (TPIM) notice.

Begum could be charged under Section 5 Terrorism Act 2006 for ‘preparation of terrorist acts’ with a possible life sentence for allegedlly sewing suicide vests. She could face up to ten years in prison for either a Section 11 Terrorism Act 2000 membership offence or Section 12 support offence for her association with Daesh before 2019.

Proving all these charges would face the challenge of taking Section 9 Criminal Justice Act 1967 witness statements. Section 9 permits the admissibility in court of signed written statements, which the witness declares as truthful, to the like extent as oral evidence. Here, the obvious hurdle is validating witness identities from a lawless part of the world as the Islamic State was, and much of Syria remains.

At first sight, the most straightforward charge would be an ‘entering or remaining in a designated area’ offence under the Counter-Terrorism and Border Security Act 2019 (which introduced a new Section 58B in the 2000 Act). This offence comes with a maximum sentence of ten years. Begum could be held liable for being in ISIL-controlled territories without a suitable excuse.

In fact, Begum cannot be charged under Section 58B. The offence cannot apply retrospectively before 2019 when she allegedly committed the crimes in question. Human rights and the ‘rule of law’, i.e., basic principles of due process, fairness and accountability to the law, uphold that no one can be charged with an offence that did not exist at the time of offending.

In short, a criminal trial for Begum would see her avoid prosecution for activities that have since been recognised as criminal. She may even be found not guilty of other crimes for lack of evidence, or at least evidence that would justify a more severe sentence may well be inadmissible.

But, in any case, could security concerns about Begum be mitigated by extraditing her to Bangladesh where the UK government says she holds citizenship? Even if Begum did not have her British citizenship returned in the appeal proceedings against her deprivation order (separate legal proceedings to a criminal trial), extradition could face challenge in the courts under the Human Rights Act 1998. Namely, the prospect that Begum might face the death penalty if convicted at trial of terrorism offences in Bangladesh could see any attempt at extradition by the Home Secretary unlawfully breach Begum’s human rights (Article 3 European Convention of Human Rights) obligations not to allow someone to be subject to inhuman treatment. If Begum came back to the UK, she would probably stay here for good and related national security concerns may well persist.

Javid has a point. The tools he had available to deal with Begum were far from perfect. Javid had an unenviable dilemma about which pillar of British society to uphold: the rule of law or national security. In removing Begum’s British citizenship, on dubious grounds that she actually had Bangladeshi citizenship, and then denying her return to face justice, Javid chose to allow the rule of law to crumble and to make Begum effectively stateless.

The Supreme Court appeared to have a similar preference for national security in February this year. Their Lordships overturned the Court of Appeal’s decision that Begum should be permitted re-entry to the UK so she could make a fair and effective appeal of the deprivation order. The Supreme Court found the Court of Appeal had erred in not paying due respect to the Home Secretary’s democratic authority, as instilled by parliament, to deny Begum entry to the UK.

What to make of all this? As Javid implied last week, the Home Secretary’s denial of Begum’s re-entry presupposed the English justice system’s verdict would have been inadequate for national security purposes — i.e. she might not actually go to prison. To go about achieving national security, on the assumption that our criminal justice system may not deliver the right verdict, amounts to trial by Home Secretary. This is surely executive overreach.

A criminal trial of Begum may well realise an imperfect result and leave unanswered many questions about her actions with Daesh. Regardless, the rule of law matters. To refuse Begum citizenship, re-entry, an appeal, and a trial, forms itself an admission of defeat to ISIL. Terrorism is not only an attack on individuals but on the fabric of society itself. In provoking such a reaction, Daesh has succeeded in brutalising our society and curdling sacrosanct Western values of the rule of law. Obviously, there has been a long trend of Western human rights abuses in the war on terror, but deprivations of citizenship in a ‘statelessness’ context and denial of re-entry hit a new low.

But is all lost for the rule of law? There are ongoing proceedings as concerns Begum’s citizenship deprivation before the Special Immigration Appeals Commission (£). It should also be noted that the citizenship deprivation cases of other women were heard at the same time and that Begum’s case is not entirely unique. Begum’s deadline for an application to the European Court of Human Rights to challenge the refusal of leave to enter the UK passed in August and it is unclear whether Begum’s lawyers have applied in time. Javid’s interview last week demonstrates the Begum case demands further legal scrutiny. More so, it suggests the Supreme Court’s judgment in February served as a spectacular act of judicial deference.

Atticus Blick holds an LLM with a specialism in human rights from University College London. He is studying the bar course at The University of Law and aspires to become a barrister.

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An ex-City lawyer once earning just over £100k has revealed she recently took a “huge pay cut” to specialise in human rights law.

The anonymous lawyer says she’s now on a salary of £18.2k — an 82% drop in pay — but hopes to revert to a six-figure salary by taking up a new post in her preferred field.

The 29-year-old lawyer, who lives in West London, shared details of her spending habits in a money diary for lifestyle website, Refinery 29.

“I was working for a large City law firm, where I was earning just over £100,000,” she logs in her week-long account. “I quit for a smaller firm specialising in a niche area of law which I’m passionate about. It’s both interesting and makes me feel like I’m doing something good for the world.”

She goes on to explain her current job “is only for a few months” and then she’ll be “moving to a job that does something similar for a £100,000+ salary”. But the lawyer has hedged her bets, explaining “there’s always the possibility that this may not materialise”, so she’s currently interviewing for other positions, too.

She describes how those close to her were “surprised” and “worried” about her career move, especially her parents who saw it as a “step back”. But the lawyer says she’s prepared herself for this “uncertain period of time” and has always lived as if she was on a lower salary.

The human rights lawyer takes home £1,295 after tax each month, £956 of which is her share towards the mortgage on a flat she co-owns with her sister. She saves on student loan repayments as her current salary is “too low” as well as on transport since she works from home for the most part and can “walk everywhere”.

She has just over £50k savings in various accounts and funds from her previous job to get by, and has ring-fenced £5k of that for “fun things” as her current salary “can’t cover it”. She’s also seemingly cut back on eating out by taking up cooking and instead of holidays, she’s exploring new areas of London.

During the week, the lawyer documents she spent just over £100, with most of that spent on food and drink (£73). Seeing that she’s in budget she realises she can afford to give charity donations having paused them all when she quit her high-earning career in City law.

And whilst her pay has plummeted, there are instances where the lawyer is up in the early hours burning the midnight oil. She finishes work after 3am on two days in her diary. But, she says, “I don’t mind working longer hours (even on this salary) when the work is as interesting as this.”

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In October 2000 the European Convention on Human Rights (“ECHR”) came into force and with it a whole host of important rights and freedoms including the freedom of expression, freedom from torture, and the right to a fair trial. It was heralded by the then Labour government as a historic extension of human rights in the UK. But as comprehensive as the ECHR may seem, and as historic, there is one possible right on which it falls silent — the right to environmental protection.

It has been firmly acknowledged for several decades that there is an intrinsic link between environmental protection and human rights. Put simply, one entails the other — human rights directly address our environmental concerns and, at the same time, environmental problems affect our ability to benefit from human rights. This is perhaps most obviously seen in respect of the right to life, which must recognise a certain standard of environmental quality allowing us to live safe and healthy lives. How are we to properly enjoy our right to life if the air we breathe is polluted with carbon dioxide? Likewise, how are we to enjoy our right to respect to a private and family life if the water we drink is undrinkable? With this in mind, the omission of a standalone right to environmental protection is a missed opportunity.

Therefore we must look to another international instrument to fill the void, one which explicitly and unashamedly recognises the right to environmental protection. We must look to what is arguably the most significant environmental agreement to be ratified by the UK. The following will do just that and, in doing so, it will discuss how it has been applied in the UK.

The Aarhus Convention

The agreement in question is the Aarhus Convention (“Aarhus”), or to give it its formal name: ‘The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’. It was adopted in June 1998 in the Danish city of Aarhus and ratified by the UK in February 2005. Whether you pronounce it ‘are-house’, or ‘are-hoose’ (both are heard in equal measure), Aarhus’ primary aim is to enhance public participation in environmental decision-making. The theory is that the availability of more environmental rights will lead to better environmental sustainability. This aim is embodied in three ‘pillars’ which are:

(1) Access to environmental information;

(2) Public participation in decision-making, and

(3) Access to justice.

Each pillar provides focus to the overarching aim and they are unambiguously grounded in the interconnectivity between environmental and human rights. Right at the front and centre, on the very first page, Aarhus declares that “adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights”. Not ideal or important, but essential. In addition, a further distinguishing feature is the acknowledgment of the rather haughty sounding principle of intergenerational equity: simply the notion that future generations ought to be able to enjoy the environment and benefit from it just as much as their forebears. But while abstract principles are all well and good, let’s not forget that Aarhus imposes practical duties on its signatories too.

Pillar one: Access to environmental information

Under Aarhus, everybody has the right to request environmental information held by public authorities; disclosure must be provided within one month of the request and the applicant does not need to explain why they require it. This is all provided for in The Environmental Information Regulations 2004, which effectively extends freedom of information requests to cover environmental information, although the Regulations contain some subtle differences.

Arguably, they make it easier to obtain information. Applications can be made orally as well as in writing. Furthermore, they can be made to a much wider range of public authorities as Aarhus embraces a broad definition of ‘public body’ which includes bodies simply under the control of a public authority — a generous definition which can capture private bodies too. Finally, unlike the general freedom of information regime, applications under the Regulations cannot be refused solely on costs grounds.

That last point is especially noteworthy. Authorities cannot deny a request just because the cost of providing it is too great; in removing this excuse, Aarhus recognises that being able to have sound, useful information on the environment outweighs any financial considerations. Purely as a matter of policy this is big, and coupled with the wider definition of public authority, Aarhus has made it easier for people to stay informed — or at least have the opportunity to stay informed — when it comes to the environment, enabling people to meaningfully participate in decision-making.

Pillar two: Public participation in decision-making

Speaking of which, Aarhus’ second pillar requires public authorities to make arrangements to enable the public to comment on proposals for certain environmental activities and then consider those comments when making decisions. Such activities include proposals for plans, programmes and policies affecting the environment, as well as environmental legislation.

This is self-explanatory. To illustrate, chances for public participation can readily be seen in the context of planning decisions, where the public have an opportunity to comment on proposals big and small, which will inevitably impact the environment around them. When authorities fail to take public comments into consideration, the final pillar comes into play.

Pillar three: Access to justice

The public have a right to challenge environmental decisions made in breach of the first two pillars or in breach of other environmental legislation; importantly, the government must make sure that environmental challenges are not “prohibitively expensive”. This has been implemented by amendment to the Civil Procedure Rules. As a general rule, individual claimants in challenges relating to environmental matters can apply for an order capping their liability to £5,000. If granted, the maximum they can claim if they win is £35,000.

Given that litigation is expensive, claimants can live in relative comfort knowing that their liability is capped, although of course £5,000 is still a significant sum, and what if a claim is successful and legal fees exceed £35,000 — a Pyrrhic victory? However, the definition of ‘environmental matter’ is reassuringly wide, held in Venn v Secretary of State for Communities and Local Government [2014] to encapsulate judicial reviews and all forms of appeal that touch on the environment. Therefore whatever financial risk a claimant exposes to themselves, it is good to know that the odds are in the claimant’s favour when applying for the Aarhus cap.

Concluding remarks

Through its three pillars, Aarhus does improve public participation in environmental decision-making by making environmental challenges just about affordable, as £5,000 is modest when compared to the average cost of litigation, and it enhances freedom of information provisions. Such rights are more important than ever. On 17 December 2020, a coroner found for the first time ever, that exposure to air pollution had materially contributed to the death of nine-year-old Ella Kissi-Debrah. It has become a landmark case in which the coroner pointed out that the levels of nitrogen dioxide around Kissi-Debrah’s home exceeded World Health Organisation and European Union standards. Crucially, he also added:

“There was also a lack of information given to Ella’s mother that possibly contributed to her death.”

The notion that there should be an abstract right to environmental protection and information can, admittedly, seem like an inessential luxury; but the above goes to show the importance of environmental information and protection. Mercifully, what the ECHR lacks, other agreements make up for in abundance. The African Charter on Human and Peoples’ Rights (the ECHR’s African equivalent) contains a provision stating that everybody has the right to a general satisfactory environment, while further afield, the Indian Supreme Court has interpreted India’s codified constitution to include a right to clean and healthy environmental conditions. Aarhus is in good company.

Paul Wyard is a paralegal at an environmental law firm in Cambridge. He graduated with a first-class degree in law from Oxford Brookes University in 2019.

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The EAT recently handed down its judgment in the case of Steer v Stormsure Ltd [2020] on 21 December 2020, which held that the failure to grant a right to claim interim relief in claims of discrimination/victimisation dismissals was incompatible with Articles 6 and 14 ECHR. However, because the EAT is unable to make a declaration that UK law is incompatible with European law, permission to appeal to the Court of Appeal was granted in order for the question to be resolved.

What is interim relief?

Interim relief is a remedy available to claims who claim they were dismissed for certain reasons, most commonly those who claim they were dismissed for whistleblowing. In order to be granted, the claimant has to show they have a ‘pretty good chance’ of succeeding in their claim, which is a particularly high threshold.

If interim relief is granted, it has very significant consequences, as the employment tribunal can make an order for the continuation of the contract of employment between the parties for the duration of the proceedings or until the claim settles.

This means that the claimant has the right to be paid their wages and receive all other benefits under the contract of employment but without the need to actually to carry out any work, and whether the claimant wins or loses their case they are not required to pay anything back.

The facts of Steer

Mrs S Steer was employed by Stormsure for a relatively short period of time between 12 March and 15 July 2020. She claimed that she had been subject to sexual harassment, and following a request to work from home to avoid further harassment her hours of work were reduced to such an extent that this terminated the contract of employment.

Steer presented a complaint to the employment tribunal on 30 July 2020 whereby she sought interim relief in relation to her complaints of sex discrimination/victimisation claims, as well as for her whistleblowing claim. Whilst an interim relief hearing was listed, it was only to hear the application under the whistleblowing claim.

The appeal

The appeal focused on three grounds:

1. The decision of the employment tribunal that it did not have the power to grant interim relief in discrimination and victimisation claims was an error of law;

2. The employment tribunal erred in law in concluding it had no jurisdiction to order interim relief in Equality Act 2010 claims without first hearing the appellant; and

3. The employment tribunal’s reasons were inadequate.

Mr Justice Cavanagh dismissed grounds two and three, accepting it neither had jurisdiction to hear the application and that its reasons were adequate, but he granted permission to appeal on the first ground.

The decision of the employment appeal tribunal

The appeal was heard on 15 and 16 December 2020, a hearing expedited due to the impending cessation of EU law in the UK as of 31 December 2020, meaning the decision would represent the law prior to the withdrawal of the UK from the EU.

In a lengthy and technical judgment handed down on 21 December 2020, Mr Justice Cavanagh dismissed the appeal. The EAT held that the remedies available in discrimination complaints were not incompatible with EU law, in that they were not less favourable than the remedies available founded under the domestic legislation for whistleblowing.

However, the EAT did find that there was no justification for the difference in treatment between, for example, whistleblowing dismissals and discriminatory dismissals under the ECHR. The UK government were invited to provide responses as to how the difference between the two can be justified, but they refused to do so.

What next?

The difficulty for the EAT was that it does not have the right to make a declaration of incompatibility, and it accepted that it was not equipped to properly balance the effects of making a decision on whether interim relief should be extended to discriminatory dismissals, and so permission was granted for an appeal to the Court of Appeal to determine whether the Equality Act 2010 should be interpreted to this effect.

We can expect that the UK government will take the opportunity to intervene and justify the difference in treatment in this appeal, particularly where the EAT noted several policy considerations and practical consequences if interim relief were extended to discrimination complaints. This included broadening the remedies available in discrimination complaints but not other types of claims, widening the scope of who can apply for this remedy (where at the moment it is available only to employees), the increase in interim relief applications and the burden this would have on the employment tribunals, but also the complexity of interim relief hearings on complex aspects of discrimination legislation.

Either way, it is going to make for a very interesting decision once it reaches the Court of Appeal, and it is one which could change the landscape of discrimination legislation yet again.

Thomas Fuller is an employment tribunal advocate. He studied law at Liverpool John Moores University.

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With less than a month to go until the Brexit transition period ends, the government has announced a review into the Human Rights Act, with its recommendations to follow in summer next year.

The Human Rights Act (HRA), passed by the Labour government in 1998, is a composition of ‘articles’ concerning the rights and freedoms people residing in the UK are entitled to. These rights include the right to education, a fair trial and protection from any of your rights being discriminated against. The rights in question were first set out by the European Convention on Human Rights (ECHR), and were enforced as domestic law in October 2000.

Twenty years later, a review led by ex-Court of Appeal judge Sir Peter Gross among other distinguished legal practitioners and academics, aims to critique not the individual rights, but the Act’s “structural framework”. This means, in reviewing how the Act should continue to be interpreted, the panel will be considering the relationship between the HRA and the judiciary, executive and parliament.

Though on the face of it, it may seem perturbing, this is not an unsurprising development. The October 2019 Political Declaration of the future relationship between the UK and EU announced its determination to escape the European Union’s control on issues such as military operations. The review into the Human Rights Act can be viewed as another attempt to escape any influence the European Union can have in the UK’s legal and political spheres.

The timing of this clearly indicates the Conservatives are trying to ‘take back control’ of the UK’s status as a legal entity outside the EU. Section 2 of the Human Rights Act requires domestic courts to “take into account” any decision made by the European Court of Human Rights, meaning follow the clear and constant jurisprudence delivered by the ECtHR. The review explicitly seeks to consider if this “dialogue … works effectively and if there is room for improvement”. In other words, the Conservatives are seeking to follow their 2019 party manifesto to update the Act to ensure British parliamentary sovereignty.

This is despite warnings from the Equality and Human Rights Commission (EHRC) that the HRA is already well-crafted and maintains the primary role of the courts. Former EHRC chair David Issac has explicitly stated that any attempts to alter or replace the Act will move the country backwards. What is concerning, is that in the UK’s previous attempts to so-called reclaim sovereignty, we are already beginning to see this happen. The EHRC’s 2017 report found the UK government to be in contempt of human rights abuses, as they delayed investigating allegations of torture and ill-treatment of the British military abroad.

More recently, on 1 December new immigration legislation was enforced making rough sleeping grounds for deportation for non-UK nationals. This unnecessarily cruel legislation, targeting the most vulnerable, will undoubtedly lead to an increase in human rights abuses, such as an increase in human trafficking. After such legislation was made the same year as rough sleepers were urgently accommodated to ensure they had access to proper hygiene during a pandemic, this goes to illustrate how little the government cares about human rights, and why we should all be concerned about the outcomes of this coming review.

Labour’s Shadow Justice Secretary David Lammy has criticised the government’s timing of launching an attack on human rights in the middle of the pandemic, and I am glad somebody is. Questioning our commitment to human rights during a time when recognised protections to healthcare and safety from legal persecution could not be more important, is a frightening reality to grasp. In a year featuring other such repugnant government announcements such as refusing to pay for free school meals for children, the announcement of this review is equal parts illogical and distressing.

Based on the previous evidence we must go off, nothing productive can come from this review. This panel is the manifestation of our irresponsible government trying to wrangle their way out of being held accountable to the standard of internationally recognised human rights. It is in the interests of all in the UK, that we fight as hard as we can to legally keep and respect these rights otherwise the practical consequences, beyond our country’s legal reputation, could be too tragic and dear.

A formal inquiry into reviewing our recognition of the Human Rights Act, during the midst of a worldwide pandemic, is a damning indication of what post-Brexit Britain’s values and commitments are to core legislation at the heart of all our freedom and security. This review is testament to Conservative apathy to the population and the legal protections ensuring our human dignity in general.

Charlotte Tomlinson is a final year philosophy student at the University of Birmingham. She is an aspiring barrister and intends to start the GDL upon completion of her degree.

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On 31 July 2020, the Ministry of Justice (MoJ) announced that a panel of experts would undertake a review of administrative law and consider whether there was a need to reform the judicial review process.

The first part of this article explains the aims of and political background to this review of administrative law. The second provides detail on the six individuals who comprise the panel.

1. Review of administrative law: aims and political background

The MoJ’s press announcement states that the review “delivers on a manifesto commitment to ensure the judicial review process is not open to abuse and delay”. The relevant ‘commitment’ is found on page 48 of the Conservative Party’s 2019 manifesto. “After Brexit”, the passage reads, a Conservative government would “look at the broader aspects of our constitution: the relationship between the government, parliament and the courts”, including “the functioning of the Royal Prerogative” and “access to justice for ordinary people”. Several lines later, a commitment is made to “update the Human Rights Act and administrative law”, and to “ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or create needless delays”.

And so, legitimised by these manifesto promises, the MoJ has asked the panel to consider “whether the right balance is being struck between the rights of citizens to challenge executive decisions, and the need for effective and efficient government”. Four specific issues will be addressed:

1. “Whether the terms of judicial review should be written into law.”
2. “Whether certain executive decisions should be decided on by judges.”
3. “Which grounds and remedies should be available in claims brought against the government.”
4. “Any further procedural reforms to judicial review, such as timings and the appeal process.”

We move now to the individuals who will consider these matters.

2. Panel members

There is significant diversity in the panel members’ backgrounds and fields of specialism. In the interests of brevity, our focus will be on members’ experience in and publications on administrative law, in so far as they exist in each case.

Lord Edward Faulks QC — Panel chair

Lord Faulks QC is a barrister at 1 Chancery Lane who took silk in 1996. According to his chambers profile, Lord Faulks’ practice areas include medical law, personal injury, police law, professional liability and public sector and human rights. From 2005-6, Lord Faulks QC was a special adviser to the Department for Constitutional Affairs on compensation culture. Between January 2014 and July 2016, he served as a minister at the MoJ under Chris Grayling.

Lord Faulks QC has written publicly on administrative law. Two articles are of particular interest. The first, entitled “The Supreme Court’s prorogation judgment unbalanced our constitution. MPs should make a correction”, was published by conservativehome.com on February 7 2020. Lord Faulks QC criticised the Supreme Court for finding against the government in Miller (No. 2), writing that “the decision to prorogue parliament, however questionable it might have been, was the exercise of a clear prerogative power, the merits of which are the stuff of politics not law”. Lord Faulks QC invited parliamentary legislative intervention “to settle authoritatively the non-justiciability of the prerogative power to prorogue… and perhaps also to impose further limits on the scope of that power”. Such legislation, he continued “may be the only way to limit the courts’ incursion into the political territory”.

The second article, entitled “The opportunity to repeal the Human Rights Act, quit the ECHR and bring justice home may not come again”, was published on April 26 2017 by the same website. Lord Faulks QC wrote that, having worked with the Human Rights Act, he had “never [become] convinced that it added significantly to the protection of human rights”, and that he “could not see why human rights could not be protected perfectly well through the [domestic] common law”. Problems with the Human Rights Act, he continued, included “those extreme difficulties with getting rid of terrorists”. These problems might be solved, Lord Faulks QC felt, either by introducing a British Bill of Rights, or repealing the Human Rights Act and leaving the Council of Europe. The “braver and cleaner option”, however, would be to “leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and parliament to protect human rights”.

Dinah Rose QC, addressing this appointment on Twitter, stated that while “Lord Faulks QC is a courteous and intelligent man”, comments such as those above illustrate that “[h]e’s already made his mind up on the issue to be examined by the ‘independent’ review of administrative law that he’s chairing”.

Here's Lord Faulks in February, urging legislation to "limit the courts’ incursion into political territory". He's already made up his mind on the issue to be examined by the "independent" review of administrative law that he's chairing.https://t.co/yNH1wt1d12

— Dinah Rose (@DinahRoseQC) July 31, 2020

Professor Carol Harlow QC

Professor Harlow is an emeritus professor of law at the London School of Economics, where she has taught since 1978. Professor Harlow became an honorary QC in 1996, was enrolled into the British Academy in 1999 and became a bencher of Middle Temple in 2009. She has written extensively on administrative law and the law of the European Union (including, notably on procedural changes, automation, executive accountability and pluralism).

Whilst it would be reductive to summarise the tone of these works in a single stroke, attention may be drawn to an article entitled “Public law and Popular Justice”, published by the Modern Law Review in 2002. Professor Harlow criticised the involvement of ‘campaign groups’ in litigation, and warned against the politicisation of the judicial process. Campaign groups’ involvement, the argument ran, might undermine qualities of certainty, finality and independence for which the legal system is esteemed, and thereby undesirably undercut its legitimacy. Professor Harlow’s conclusion was that the great majority of campaign groups should not be granted permission when seeking judicial review.

Vikram Sachdeva QC

Vikram Sachdeva QC is a barrister at 39 Essex Chambers who took silk in 2015. He has taught administrative and constitutional law at Cambridge University and was appointed chair of the Constitutional and Administrative Law Bar Association in September 2019.

Sachdeva has appeared in a large number of judicial review and human rights cases, with considerable experience in the Supreme Court and Court of Appeal. His specialisms include medical law, media law and disputes relating to student loans (as well as matters outside public law altogether, such as commercial and tax law). In NHS Trust v Y, for example, the question was whether Article 2 of the European Convention of Human Rights was breached by clinicians’ failure to seek permission from courts before withdrawing clinically assisted nutrition and hydration from a patient in a prolonged disorder of consciousness. R (Tigere) v Secretary of State for Business, Immigration & Skills concerned whether it was a breach of Articles 2 and 14 (of the same Convention) to deny the claimant a student loan.

Sachdeva is clearly well-acquainted with the protection that judicial review and human rights law affords vulnerable claimants.

Professor Alan Page

Professor Page has been the professor of public law at Dundee University since 1985. He teaches constitutional, administrative and EU law at undergraduate level, and supervises postgraduate students on constitutional work. Professor Page has served in an advisory capacity many times. Among other appointments, he has acted as a specialist adviser to the Scottish parliament’s Scotland Bill Committee, to the European and External Relations Committee, and to Europe’s Office for Democratic Institutions and Human Rights.

Professor Page has written extensively on the Scottish constitution, and on the importance of focusing squarely on the operation of government when studying public law. His 1999 book entitled “The Executive in the Constitution: Structure, Autonomy and Internal Control” detailed the inner workings of executive government in Scotland, from the civil service to the institutions, allocation and monitoring of government finance. In so doing, Professor Page argued that the executive’s inner machinations (i.e. co-ordinating and controlling itself) are just as important in the constitutional order as its democratic and legal accountability.

Celina Colquhoun

Celina Colquhoun is a barrister at 39 Essex Chambers. Her specialisms, as listed on her chambers Profile, include “all aspects of planning and environmental law” and “licensing manners”. The same source states that Colquhoun “regularly appears as an advocate in the higher courts… in public law cases”, which is borne out by the list of cases in which she has appeared. These cluster around infrastructure, development certificates, housing and environmental law. Colquhoun’s book entitled “A Practical Guide To The Community Infrastructure Levy” will be released in October 2020.

Nick McBride

Nick McBride is a fellow of Pembroke College, Cambridge. He was formerly a fellow of All Souls College, Oxford. He has written extensively on legal philosophy and the law of obligations (overwhelmingly on tort) and produces guidebooks to help new law students acclimatise to the subject.

An example of McBride’s fusion of philosophy and positive law can be found in his 2018 book entitled “The Humanity of Private Law”. It is argued therein that the law of obligations is concerned with the flourishing of its subjects and, radically, not with wealth-maximisation or preserving relationships of mutual interdependence.

3. Conclusion

These are the members of the panel that will consider whether there is a need to reform the judicial review process. Lord Falconer, the Labour peer and Shadow Attorney General, stated on Twitter that the Prime Minister expects a response from the committee within five months.

PM just appointed his judicial review limiting committee, chaired by lawyer who wrote after prorogation case courts’ JR powers should be curbed. PM expects response within 5 months from committee. Once it’s rubber stamped curbing courts’ powers another check and balance lost.

— Charlie Falconer (@LordCFalconer) July 31, 2020

Jordan Briggs graduated in law from the University of Oxford. He plans to commence a LLM at the LSE from September. Jordan is an aspiring barrister.

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