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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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The policy for the removal to Rwanda of asylum seekers who have not entered the UK through regular means has been filled with controversy. Since April, there has been a number of developments, both legally and politically. International human rights in the UK has been a controversial topic since the enactment of the Human Rights Act 1998. Since then, although jurisprudence from the European Court of Human Rights is not binding, the UK government seems to have become more and more opposed to observing it and more focused on preserving parliamentary supremacy. This article will explore the UK’s asylum arrangement with Rwanda and outline why it may not be compliant with international human rights law, as well as briefly examine arguments for a British Bill of Rights.

Provisions and aims of the policy

On 14 April 2022, Prime Minister Boris Johnson, who has since resigned, announced plans to implement The UK-Rwanda Migration & Economic Development Partnership (the Rwanda policy). Under the policy, unauthorised adults present in the UK after 1 January 2022 will be considered for removal to Rwanda based on the strength of each case and the method of migration. Factors regarding the ‘strength of a case’ are unknown. Pending removal, individuals will be given five days’ notice. They can seek legal advice, but there is no statutory right to appeal. Upon removal, they will be subject to Rwandan immigration law and encouraged to obtain refugee status. Lastly, they will have no immediate right to return to the UK.

Overall, the government claims the policy will reduce immigration costs and deter the “business model of criminal gangs”. Additionally, Home Office Secretary Priti Patel stated the policy would strengthen border control which protects national sovereignty. The significance of that statement and its ramifications will be analysed later in this article. For now, the alleged financial benefits of the Rwanda policy will be briefly discussed.

As of April 2022, the UK government spends approximately £1.5 billion per year on asylum costs, including approximately £4.7 million per day on hotels for asylum seekers. In contrast, the UK Government pledged an economic transformation and integration fund for the new policy of £120 million, along with additional operational costs. However, as indicated by Matthew Rycroft, permanent secretary for the Home Office, there is actually no current evidence to suggest that the Rwanda policy will reduce immigration costs, or act as a deterrent in any form.

In addition to appearing unable to meet its aims, the Rwanda policy was immediately opposed by many politicians, lawyers, and activists.

Challenges to the policy via international law

Controversy and alleged human rights violations in Rwanda

Criticism of the Rwanda policy has been widespread. Former Prime Minister Theresa May stated that she does not support the policy on the grounds of “legality, practicality and efficacy”. Some other noteworthy individuals who expressed their shock and disapproval included Prince Charles, who allegedly described the policy as “appalling”, and Enver Solomon, chief executive of the Refugee Council, who argued that the policy would “do little to deter people from coming to the UK”.

Patel and Johnson claimed that criticisms are based in xenophobia and stereotyping, with Johnson asserting that any plans to legally challenge the removal of persons to Rwanda came from politically motivated lawyers. However, said criticisms reflect the UK’s previous position on human rights violations in Rwanda. Just last year at the 37th Session of the Universal Periodic Review, a periodic assessment of human rights records of UN member states, the UK issued a statement expressing grave concerns about Rwanda’s human rights. Recommendations included investigations into alleged extrajudicial killings, torture, and more.

Critics of the Rwanda policy are against the disregard of serious human rights allegations for the sake of potentially saving money on immigration costs and the desire to preserve national sovereignty through border control. Xenophobia or racial stereotyping play no part in the very real and jarring concerns surrounding this issue.

Challenges to the policy via international law

The main legislative challenges to the policy are the 1951 Refugee Convention, the 1967 Protocol, and the European Convention on Human Rights.

The 1951 Convention provides that refugees are entitled to certain rights like the right to education, and also subject to obligations to their host government. Most importantly, the Convention establishes the principle of ‘non-refoulment’, which means that no migrant can be placed in a country where they would receive irreparable harm. The subsequent 1967 Protocol increased the number of persons eligible to apply as refugees by removing the previous limitations under the original Convention. The European Convention on Human Rights contains Articles that guarantee rights and freedoms, and places obligations on states for countries part of the Council of Europe. Relevant provisions include Article 2 on the right to life, and Article 3 on the right not to suffer torture or inhuman or degrading treatment or punishment. Articles 2 and 3 are known as absolute rights, meaning that they cannot be interfered with or justified in any way.

The provisions outlined above should be applied without discrimination. However, the Rwanda policy appears to create a double standard. The UK has opened its borders to Ukrainians fleeing human rights abuses. While this honours moral considerations and international human rights law, persons of other nationalities that face removal to Rwanda are also likely to have experienced serious human rights abuses. Individuals of different races or religions are therefore more likely to experience cruel treatment under the Rwanda policy, which can be viewed as discrimination.

Asylum arrangements with Rwanda in different jurisdictions

The UK is not the first jurisdiction to attempt to implement an offshore asylum policy. Australia first introduced its ‘Pacific Solution’ involving offshore asylum arrangements for asylum seekers to be relocated to the Republic of Nauru and Papua New Guinea in 2001. It resumed again in 2013, and despite experiencing similar controversies as the UK, not only reduced immigration costs — but appeared to dramatically reduce the number of migrants arriving via boat. The data does not appear to tell the full story, though.

Despite a decline in boat crossings, the asylum policy was plagued with rioting, hunger strikes, violence, and even the alleged killing by guards of an Iranian asylum seeker. In an interview for Open Democracy by Guy Aitchison, several current and former detainees from Australia’s offshore asylum policy relayed their horrific experiences: one refugee recalled going on hunger strike “just to die” after the severe torment. Others recounted the deaths of their fellow detainees due to medical negligence, and described the system as “barbaric” and designed to “strip people of their humanity”. Instances such as this could violate Article 3 of the European Convention on Human Rights, the 1951 Convention and the 1967 Protocol.

Israel also had an offshore asylum arrangement. Although it was never officially announced, the ‘voluntary departure’ scheme sent around 4,000 Eritrean and Sudanese migrants to Rwanda and Uganda between 2013 to 2018. The migrants were reportedly given vague reasons regarding removal to Rwanda, and upon arrival allegedly had their papers taken from them before being driven to a guarded hotel and prevented from leaving.

Evidently, as claimed by Aitchison in his article, “offshore detention gives license to special forms of abuse, existing beyond proper legal checks and scrutiny”. The migrants subjected to offshore asylum policies may become victims of flagrant abuses and violations that their host states should have safeguarded against.

How has the UK government tried to justify the legality of the Rwanda policy?

The first flight removing an initial set of migrants to Rwanda was due for take-off on Tuesday, 14 June 2022. Several asylum seekers unsurprisingly applied for an urgent injunction to stop the flight and any future flights until a full judicial review hearing on the policy which was not due to occur until July. The High Court refused the application, the Court of Appeal dismissed the subsequent appeal, and finally, the Supreme Court dismissed the appeal.

Nevertheless, in a last-minute legal battle, the European Court of Human Rights (ECtHR) made an interim measure requiring that the applicant could not be removed to Rwanda until three weeks after the final decision regarding judicial review of the policy.

There have been many instances where the ECtHR has made more liberal decisions than the UK courts. The contrasting judgments have been a source of academic debate for years. A proposed solution that has been heavily periodically debated is a British Bill of Rights, which would eliminate the need to observe the ECtHR’s decisions as closely. Interestingly, shortly after the ECtHR’s ruling on the removal flight to Rwanda, the debate around a British Bill of Rights sparked up again. Directly referencing the ECtHR’s decision, Dominic Raab, deputy Prime Minister, claimed that a British Bill of Rights would increase the UK’s sense of freedom and add “common sense” to the system.

However, despite also claiming that the European Convention on Human Rights will still be observed, granting parliament even more exclusivity and power to prioritise parliamentary supremacy is not a democratic solution to contrasting views on human rights. While the interests of the public and the UK’s values must be protected, as evidenced by the Rwanda policy, international checks and balances are necessary to safeguard individual’s rights.

In conclusion, the Rwanda policy, like similar arrangements with other jurisdictions, may violate international human rights laws and should be discontinued. In the interim, we await the full judicial review hearing to investigate its legality later this month (July 2022).

Teshé Rolle is a final year student at The University of Law. She aspires to qualify as a barrister and is interested in human rights law, criminal law, and employment law.

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The US Supreme Court has just overturned the decision of Roe v Wade, a landmark case regarding abortion rights from over 50 years ago, completely destroying the reproductive rights of people with uteruses in America. With at least 26 States expected to ban abortion immediately, this terrifying reversal will have disastrous effects on the physical and mental health of people expected to carry a foetus. This naturally leads one to reflect on the law surrounding abortion in England and Wales and why it is one of the most important pieces of law to date.

First, without the Abortion Act 1967, abortion still remains a criminal offence. Under section 58 of the Offences Against a Person Act 1861, any woman with child who attempts to procure a miscarriage and any person who aids a woman in an attempt to procure a miscarriage will be guilty of felony and being convicted thereof shall be liable to be kept in penal servitude for life. Additionally, under section 1 of the Infant Life (Preservation) Act 1929, any person (this includes the pregnant person, doctor or anyone else, for example, a boyfriend) with the intent to destroy the life of a child capable of being born live, shall be guilty of felony and shall be liable on conviction therefore on indictment to penal servitude for life.

Horrors of ‘backstreet’ abortions

However, the criminalisation of abortions only led to the practice going underground. Diane Munday, a lifelong activist on the subject and a key member of the Abortion Law Reform Society, in a 2017 interview with BBC Radio 4’s Woman’s Hour, told how she discovered all the London teaching hospitals (before the Abortion Act made abortion legal) set a few wards aside each Friday for women who were septic, bleeding or dying from having backstreet abortions (there would be a surge in cases on Fridays as it was payday). She also learned of the harsh reality doctors had to face when they had to refuse an abortion. Munday recollects a young doctor’s story of how he had told a pregnant patient who said she would kill herself if she couldn’t get an abortion, the usual advice that she would love the baby when it was born. That night, she drowned herself. Unfortunately, this very dark ending was the reality for a lot of people during that time, and if death didn’t come to them first, the police would.

In England and Wales, the Abortion Act 1967 was passed. The statutory grounds for abortion can be found in section 1 of the Abortion Act 1967 as amended by the Human Fertilisation and Embryology Act 1990: “A person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith:

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

Some background

In 2021, 98% of abortions (209,939) were performed under the ground that the pregnancy had not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman, according to the National Statistics for England and Wales, 2021.

A further 1.6% were carried out under the ground that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped (3,370 abortions). Some 0.4% (836 abortions) were carried under the ground that the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman.

This Act is the difference between life and death for some individuals. That is why you can argue the Abortion Act 1967 is very important. It is common knowledge that in countries where abortion remains criminalised, the underground practice still runs, risking the lives of those who seek out an abortion. According to the World Health Organisation (WHO), each year, 4.7–13.2% of maternal deaths can be attributed to unsafe abortions. In developed regions, it is estimated that 30 women die for every 100,000 unsafe abortions. Whereas, in developing regions, that number rises to 220 deaths per 100,000 unsafe abortions.

In 2012, it was estimated that in developing countries alone, seven million women per year were treated in hospital facilities for complications arising from an unsafe abortion, according to a WHO factsheet. This is a topic that will unfortunately, never be one that everyone can agree on but the truth of the situation is, you can only ban safe abortions, and the Abortion Act 1967 is one of the most important pieces of legislation in regard to pregnant people, because it allows them to be autonomous and make a decision about their body.

Jade Rae is an aspiring barrister currently working as a legal operations analyst, having graduated from Northumbria University with first class honours in M-Law exempting BPTC. She is interested in both criminal law and civil liberties.

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Even during war there are rules and laws that must be followed. This is known as jus in bello, the rules of war. Contrarily, jus ad bellum deals with the question of whether a conflict is legally initiated. The focus of this article will be the international humanitarian law (IHL) and customary IHL that may apply during an international armed conflict.

IHL and customary IHL establish the rules of how a state may act during armed conflicts, howsoever initiated. Therefore, whether the conflict was in breach of the UN Charter or any other international rule or not is irrelevant. The state must still comply with IHL whilst the conflict continues.

What is the point in IHL? The short answer is that as humans, we have a duty to prevent suffering. After all, humanity has gone through many disastrous conflicts which have led to major suffering and major loss of life. Further suffering and loss of life must be prevented and has no place in a modern world. IHL ensures that even during conflict there are rules that protect life and prevent needless suffering of civilians. It is the civilians that are pushed into conflicts that they did not choose to initiate and so they must be protected. Consequently, commanding military personnel and heads of state exercising their prerogative must consider IHL and its rules, otherwise they risk a reputational stain and possible criminal liability.

IHL attempts to preserve life during conflict and protect civilians and some military combatants through three main principles:

(1) the distinction principle:

“the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

Therefore, it would be a breach of the distinction principle if foreign combatants were to indiscriminately or discriminately bombard civilian areas (such as apartment blocks) without distinguishing whether the objective is civilian or military. Additionally, indiscriminate bombings are a grave breach of the Geneva Convention. The force initiating an attack must engage in substantive target verification and do everything they can to ensure that an attack will target military objects, rather than civilian or cultural objects. For example, it can hardly be stated that apartment buildings and other residential areas or cultural sites may be part of genuine military objectives. They do not “make an effective contribution to military action…” and therefore, should be spared any destruction during armed conflict.

(2) the proportionality principle: This ensures that attacks against military objects are prohibited if they are not proportionate to the aim sought, in that a strike against a military objective is only permitted where the incidental loss of civilian life is minor compared to the military progress to be achieved by carrying out such an attack. Essentially, the attack cannot cause excessive loss of civilian life. For example, where three (or any other negligible amount) of enemy combatants are hiding amongst a civilian hub, the launch of a rocket strike against such a military target may be in breach of the principle of proportionality as the military progress would be minor compared to the potential loss of civilian life.

(3) the precaution principle: This principle aims to protect civilians from being killed during an attack, it seeks to prevent needless loss of life which may be avoided by simple evacuation. Essentially, effective and advanced warning should be given to the civilian population where a potential attack may harm them, if circumstances permit. Practically, the principle may be illustrated by the American warning of Japanese civilians in Hiroshima, during the Second World War, prior to the dropping of the atomic bomb. Here, the civilians had advanced warning to evacuate.

Evidently, the principles of IHL ensure that civilians are offered as much protection as possible during times of combat, after all they did not choose to fight. A balance is struck between the freedom to conduct military operations and the protection of civilians, the scales weigh in favour of protection of civilian life especially as military conflict is generally inexcusable in the 21st century. The parties to the 1977 Protocol I of the Geneva Conventions have all agreed to respect the Protocol and abide by it. It is also expected that states follow IHL, so why do some state actors choose to ignore it? What are the consequences of disregarding IHL?

Violations of some aspects of IHL, and grave breaches of the Geneva Conventions, may constitute war crimes or crimes against humanity under the Rome Statute of the International Criminal Court of 1998 (Rome Statute). The International Criminal Court (ICC) has jurisdiction to settle and hear cases concerning crimes of war and crimes against humanity, where the state is party to the Rome Statute. Additionally, the principle of universal jurisdiction ensures that states may vest jurisdiction in their national courts to hear war crime cases, regardless of where an act was committed. For example, in the United Kingdom such a jurisdiction was granted by the War Crimes Act 1991 to try war criminals for crimes committed in Nazi Germany or places under Nazi German occupation during the Second World War. In R v Sawoniuk, the defendant became the first person to be found guilty under the War Crimes Act 1991. Consequently, it is possible to be arrested and tried in another country for war crimes and often the states of the nationality of the person accused do not object.

What are war crimes? War crimes include wilful killing, unlawful confinement or intentionally directing attacks against civilian populations or against civilians that are not party to any hostilities, as well as intentionally committing attacks against cultural sites and hospitals. Further, wilfully impeding relief supplies or using starvation as a form of warfare is also a war crime. On the other hand, crimes against humanity include systematic attacks against civilians, including murder, extermination, torture, rape, kidnapping, and other barbaric and inhumane acts.

Ideally, if all of the principles of IHL were respected by all of the parties to a conflict it would be difficult to commit any war crimes whilst participating in such a conflict, and the impact on innocent civilians would be reduced significantly. This is beneficial for everybody. The consequences of not abiding by some aspects of IHL may be criminal liability, and a perpetual stained reputation. Unfortunately, a prison sentence and a ruined reputation is often inadequate punishment for a war criminal and a violator of IHL and nothing can be done to bring back the dead innocent civilians, and many other victims of an often unnecessary conflict.

Michal Smigla is a second year law student at the Institute of Law, Jersey. He’s interested in contract and criminal law, and aspires to qualify as a barrister or Jersey advocate.

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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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A person’s reputation is without a doubt of immense value. The internet and social media are at the forefront of a person’s repute. Online information and allegations are near enough impossible to get rid of once posted. It used to be if a story about you were printed in a newspaper, it would be novel and important the day it was printed, but the next day it would be forgotten about and thrown away. That no longer rings true. The internet and social media are the first places that anyone looks when it comes to finding out information about an individual and their reputation.

With cases where the right to obscurity is the issue on the rise, the story of Tiziana Cantone has stayed with me. This is a case where a woman committed suicide after a video of her was widely shared on the internet. Cantone won a right to be forgotten case. However, after a long time fighting through the court to have the videos removed, she could not escape the notoriety as the video had been copied and republished thousands of times. With stories like this, the need for international regulation on the right to obscurity has never been more poignant.

The 2014 Google v Spain decision certainly brought the issue into the spotlight. This case involved a man named Mario Costeja González who lodged a complaint against Google Spain, a subsidiary of Google, after an old newspaper article about him was republished on the internet. Gonzalez felt that since the story in the newspaper had been resolved for years, there was no need for that article to be there. The fact the paper was still readily available and was in the search results if you googled his name, was affecting his reputation, infringing upon his privacy, and so requested for the article be taken down. The court held that the operator of a search engine is obliged to remove information found based on a search of a person’s name. Even if this information has been published by a third party. Also, in a case where that name or data is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

However, an issue I see with the decision is that it doesn’t offer any solution to dealing with the problem in the future. Although, in light of the decision, search engines have responded to the lack of obscurity rights by implementing their own policies to delist or erase people’s private information. It seems from Google’s current policies that they at least acknowledge that people have some right to obscurity. However, the way in which Google makes these policy decisions is not transparent to the users of Google and regulators. It is also incredibly inappropriate for private companies such as Google to be allowed to decide under what circumstances someone may be forgotten, and have their right to obscurity fulfilled. This is because these decisions under normal circumstances are made by governing bodies elected and held accountable by the people. Still, the complex and global need for the right to obscurity presents a multitude of issues regarding jurisdiction, powers and procedures of a singular government body that would make these judgments. We have seen this in the 2016 case of Weltimmo s. r. o. v NNemzeti Adatvédelmi és Információszabadság Hatóság.

A person’s reputation falls within Article 8 (the right to private life) of the European Convention of Human Rights (ECHR). Recent authority from the European Court of Human Rights has shown this. In the 2005 case of Radio France v France, the court noted that the right to reputation is safeguarded by Article 8 of the Convention as an element of the right to respect for private life.

Naturally, one of the things that is forefront in someone’s mind when there is sensitive information available about them on the internet is their reputation. So, when someone wants that information taken down, they do so to protect their reputation. If someone was convicted of a drink driving offence years ago, and now has been sober since the offence and is an exemplary driver, that person in question should be able to have that information taken down as to protect their reputation and be forgotten. Otherwise, that person’s right to privacy is being infringed upon as their reputation is being affected, despite the person being fully reformed. This suggests that the Right to Obscurity might already exist under Article 8 of ECHR. This is because the concept of someone’s reputation being protected under Article 8 coincides with someone wanting to protect their reputation by being forgotten about and acting on their Right to Obscurity.

Since European courts already know how to deal with these issues, a blueprint that shows how to approach this issue at an international level has been provided. This blueprint would help adapt and devise an international treaty to help incorporate the right to obscurity as an international human right.

However, some issues arise when dealing with the right to obscurity. Earlier was mentioned a hypothetical example of a drunk driver. Today that is news, legal, and justifiable, especially if his actions were to have caused harm to someone or property was damaged. This is when it is in the public interest to know something about someone. Also, who is able to define what level of criminality can be forgotten? Should this be shoplifting? Theft? Murder? Who can decide any applicable period in which the right to obscurity becomes law? Domestic governance on the issue is sure-fire not going to work. Companies like Google are almost definitely going to lobby against legislation that incorporates the right. Economically, companies like Google and Facebook thrive off of personal data. So, legislation enabling people to be able to hide information, and be forgotten is going to have a significant impact on these company’s revenue. Further, with more and more people surfing the web through the use of VPNs and bypassing local jurisdiction, there is no feasible way to enforce the right in other countries. This is why international legislation is required.

An international treaty would be advantageous in this case since this matter should not be solely governed at a domestic level. David Hume, in his 1793 book A Treatise of Human Nature, divides the law of nations into two types. First are laws that deal with international matters, such as declarations of war and human rights issues, with the second being general natural law. The Right to Obscurity belongs in the first category. Private companies should not be able to determine under what circumstances a person’s right to obscurity should or should not be granted; it is highly inappropriate. An international treaty on the right to obscurity would extend the notion of justice among countries.

With increasing globalisation, technological innovation and the internet more accessible than ever, an international treaty on the right to obscurity is necessary in order to deal with the increase in global interaction and interdependence.

Lewis Hay is a first year law student at Edinburgh Napier University. He is an aspiring lawyer and his interests lie in constitutional and contract law. In his free time he enjoys playing the guitar and bagpipes.

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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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A warning has been given to London following the conclusion of a two-week inquest last Wednesday.

A coroner ruled for what is believed to be the first time in the UK, and possibly the world, that air pollution was a cause of death of nine-year-old Ella Kissi-Debrah, who sadly passed away in 2013.

The World Health Organisation has declared that the side effects of air pollution kill approximately seven million people annually across the globe, with ambient air pollution accounting for an estimated 4.2 million deaths per year. However, this is the first time that such a decision has been reached in the UK, and conversations have sparked about the legal implications of this.

Kissi-Debrah lived close to a circular road in South East London and was an asthmatic who had been in hospital many times during her short life due to seizures.

The landmark decision was made by assistant coroner, Philip Barlow, who explained that the air pollution Kissi-Debrah had been exposed to significantly worsened her asthma and that her body had taken in levels of nitrogen dioxide and particulate matters greatly over the World Health Organisation’s EU and national guidelines.

During the inquest hearing, it was put forward on behalf of Kissi-Debrah that the Department for Environment, Food and Rural Affairs and the Department of Health and Social Care failed to work collaboratively to reduce the toxic air. It was submitted that the evidence was sufficient to say that steps that should have been taken were not to protect the public, amounting to a violation of article 2 of the Human Rights Act — the right to life.

Though air pollution is well-known to be dangerous, it is the first time it has been named as a killer. Of course during the coronavirus lockdown the rates decreased, but this has steadily increased since then. Its existence has been acknowledged by politicians, but fruitful action has never really been taken. In light of the conclusion made last Wednesday, the government will need to come up with ways to prevent this reoccurring.

A suggestion has been made that there could be a passing of ‘Ella’s Law’. This would stop the UK continuing to allow levels of pollution over the prescribed levels from the World Health Organisation. Ella’s mother is not only campaigning for this, but so is the Royal College of Paediatrics and Child Health.

Despite London already implementing the congestion charge to deter drivers and announcing more areas will be under this regime at some point in 2021, it seems that ‘Ella’s Law’ may be the next change needed to further decrease air pollution in such a busy City.

However, Katie Neild, an environmental lawyer at charity ClientEarth, has said, “This was a decision about the cause of Ella’s death, rather than a determination of who was at fault — so it doesn’t provide a direct precedent that others can rely on”. This suggests that there may not be an avenue for any legal claims as there is no named ‘body’ to claim against. Nevertheless, the coroner said that the cause of Kissi-Debrah’s death was by the air pollution she had been subjected to. Further, as the government is responsible for air pollution and its control, arguably the coroner’s explicit cause of death is enough in order for legal action to be taken against them.

Rose Grogan, a barrister specialising in environmental law at 39 Essex Chambers, has stated that the UK government has continued to fail to adhere to the levels of nitrogen dioxide, particulate matters and other legal obligations, as suggested by the World Health Organisation. She continued to say that, “[The] ruling comes in the long running context of Britain being in breach of European directives on air pollution. The findings per se aren’t legally binding, yet that conclusion could likely pave the way for claims to be brought against the government in civil jurisdictions”.

This supports the idea that though no-one in particular is named and blamed for Kissi-Debrah’s death, the coroner’s conclusion is precise enough to conclude that excessive air pollution (which is at the hands of the government’s control) is the reason she sadly died.

It may be remembered that Michael Gove (the then environment minister) had publicly declared a commitment to implementing World Health Organisation limits into UK law. This was voted down by Conversative MPs in March this year, and MP Rebecca Pow queried the proposal’s “economic viability”.

Albeit any implementation would have fallen outside of Kissi-Debrah’s timelines (as she died in 2013), this would have been a positive step to tackling an issue everyone knows is prevalent in the UK. If action had been taken at an earlier stage, the UK would not be in a position it is in now, to try and reduce air pollution increasing at such a mammoth rate.

Rajni Vaik studied law at Nottingham Trent University and stayed on to complete the BPTC there. She was called to the bar in 2018 and currently works as a paralegal in a family law firm.

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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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It is not surprising that prisons are a hotspot for the spread of viruses; overcrowded and unsanitary conditions make for a deadly concoction.

Even before the pandemic took hold of the UK, the prison population in England and Wales, under the Ministry of Justice’s definition, exceeded the limit of inmates that allows for “safety and decency” by nearly 6,000 men and women.

Prisons lack sufficient resources and cell space to manage dangerous, highly contagious viruses such as COVID-19, particularly as adequate sanitation has long been an issue. Prison health facilities simply do not have the capacity to treat a large number of inmates at any one time. The knock-on effect is that inmates would then require treatment from the NHS at local hospitals, putting a huge strain on resources and treatment available to the public.

In some prisons, such as Durham HMP, overcrowding has made social distancing and single cell occupancy a practical impossibility with approximately 100 new inmates arriving per week. Shocking revelations have recently come to light that inmates displaying flu-like symptoms are being placed in cells with inmates who have tested positive for COVID-19, known as “cohorting”. It has also been reported that prisoners are being forced to spend 23 hours a day in their cells to combat the outbreak. These practices arguably breach the duty of care the government has for the health of those incarcerated and potentially pose a very serious breach of human rights — they must not be allowed to continue.

The government’s pledge

On 4 April the Ministry of Justice announced plans to release early on licence up to 4,000 inmates who pass a risk assessment and were due for release within two months. On 27 April the Lord Chancellor, Robert Buckland, announced only 33 prisoners had been released, telling the Commons that those released included pregnant prisoners and women in mother and baby units.

Stagnation of the widespread release of inmates followed an “administrative error” that saw the mistaken release of six low-risk men. Despite the scheme having since resumed many are now calling into question whether a total halt in the early release scheme was necessary given the implications of a temporary cessation at this time. Administrative errors aside, two charities, The Howard League for Penal Reform and the Prison Reform Trust have issued a letter before claim for judicial review against the Lord Chancellor for the delays, claiming the action has been so slow that it renders it unlawful.

In addition, Public Health England has warned that the government’s pledge to release thousands through early release will not be enough and 15,000 prisoners should be released to prevent the complete overrun of local hospitals.

It is clear that taken at its highest and swiftly implemented, the government’s pledge for release would still likely fall short of action capable of mitigating the rapid spread of COVID-19 in prisons, risking thousands of lives.

Action

It will not be long before we can establish the full extent of the damage these delays have caused, but the risk to the health of inmates, prison staff and the general public is growing by the second.

Many European countries have responded with expedition and force to tackle the COVID-19 prison crisis, Austria (and parts of Germany), for example, is deferring prison sentences shorter than three years for non-dangerous offenders. France has reduced its prison population by 10,000 within the last month and Italy by 6,000 in the last 6 weeks.

Why is it that the government of England and Wales has been so slow to implement fairly modest plans for release? How many lives could have been spared? Once the pandemic passes these are just some of the questions that warrant lengthy explanation.

The release of all low-risk non-violent offenders serving short sentences or nearing the end of their sentences would go far in allowing prisons to successfully implement social distancing, but the window is rapidly closing. Low-risk offenders serving short sentences exacerbate overcrowding, further stretch resources whilst posing minimal risk to the public and should be released as a matter of urgency.

After COVID-19

Beyond immediacy and in the not so distant future we should not forget to question why these low-risk, non-violent offenders receiving short sentences were in prison to begin with. Prison should be a last resort; short sentences for non-violent individuals, not long enough to effectively rehabilitate and not in place to protect the public lack a beneficiary. A shift in focus is needed from deterrence to rehabilitation in the passing of sentences.

It is easy to pass a prison sentence, it’s easy to ignore the root causes of offending but the justice system should no longer shy away from facilitating effective rehabilitation yielding the all-important by-product of a reduced prison population.

Prisons that are not overcrowded are irrefutably better managed; access to educational or rehabilitative courses is increased, closer staff to inmate relationships are made and trust is built. These features all contribute to increasing rates of rehabilitation, reducing the likelihood of reoffending — the benefits are cyclical and something we should no doubt strive towards moving forward.

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The UK’s use of Immigration Removal Centres (IRCs), or detention centres, is a controversial topic at the best of times. In light of the coronavirus crisis, their use in the detention of migrants who do not pose a risk to themselves or the public is dangerous, callous and illegal.

To begin with, it must be remembered that detained migrants are not prisoners, and that the use of IRCs form part of the administrative, not criminal process. The Home Office’s own policy states that “detention must be used sparingly, and for the shortest period possible”. The practise is, in a sense, an administrative convenience, allowing the authorities to keep track of migrants that are being processed. Despite this, detainees are kept at close-quarters in unsanitary, prison-like conditions: a “perfect incubator” for COVID-19.

This clear and obvious risk to detained migrants formed the basis of Detention Action’s legal challenge in the High Court calling for the release of 736 detainees. In a most stark illustration of the real danger those housed in IRCs find themselves: in his expert evidence, Professor Coker of the London School of Hygiene and Tropical Medicine suggested that “it is credible and plausible that 60% of immigration detainees will soon become infected with COVID-19”.

Despite this, last Wednesday the Court rejected the challenge. It cited the range of “sensible” and “practical” measures being implemented by the Home Secretary, Priti Patel, including last week’s release of more than 300 IRC detainees, and suggested that these “will be sufficient to address the risks arising in the majority of cases”.

While the ground-breaking release of migrants must be welcomed; for those that remain, this, along with handing out masks and a few other piecemeal measures, cannot be regarded as ‘sufficient’. We know that there are still detainees possessing risk factors such as hypertension, asthma and HIV, and whose continued detention places them at risk of serious illness and death. Stories have emerged of detainees not receiving free soap, making following government guidelines on hand-washing impossible; instances of cells not being cleaned after detainees displaying COVID-19 symptoms were moved elsewhere; and, in a story from Brook House IRC, of a detainee being isolated with symptoms only a day after he was serving food to other migrants. The truth of the matter is that IRCs are not only unnecessary, but unsafe, and will continue to be so in the hands of a government determined to treat migrants as criminals.

However, even if we accept the suggestion that the government will keep these migrants safe in IRCs, there remains another string to the continued-detention-is-unlawful bow. In UK law, where a migrant is not considered likely to abscond or a risk to themselves or the public, they may only be detained where there are arrangements being made to deport them ‘imminently’. This is echoed in the European Court of Human Rights’ judgment in Tabesh v Greece, which states that detention is only justified providing “deportation proceedings are in progress”. And again, with the Working Group on Arbitrary Detention stating detention is only justified “as long as a real and tangible prospect of removal exists”. And again, with a similar sentiment, in Saad v the UK. And again, in the Human Rights Act 1998, which states that detention in this circumstance is only justified where “action is being taken with a view to deportation or extradition”.

Indeed, there is a wealth of case law and legislation that states there must be an ongoing process, with an ‘imminent’ prospect of release for the detainee. Why is this relevant? Well, none of these conditions can be adhered to in light of the coronavirus pandemic. With current restrictions on travel, and lockdown measures reducing the administrative capacity of government departments, the idea that arrangements are being made to deport detainees ‘imminently’ is absurd. In many instances, migrants are not able to be removed as nations have closed their borders entirely. It is unclear how long these measures will go on for, but, in the meantime, migrants detained in IRCs do not have a “real and tangible prospect of removal”.

This was apparently conceded by Lucy Moreton, a representative of The Union for Borders, Immigration and Customs. In evidence to the Parliamentary Home Affairs Committee, she stated: “Certainly in light of the advice given by the foreign secretary, removal to anywhere globally is going to be problematic.” Further, the SNP’s Shadow Immigration Minister described removal in the current circumstances as “all but impossible”.

Clearly, then, the detention of migrants in IRCs during the coronavirus pandemic is not only a risk to public health, expensive and inhumane — but, rendered illegal by the destruction of any prospect of removal in the near future: certainly past the point in time which might be regarded as ‘imminent’. On this basis, the government must release all migrants detained in IRCs who do not pose a risk to themselves or the public.

James Cox is a second year philosophy, politics and economics (PPE) student at the University of Oxford. He is an aspiring barrister, and is currently running for president of the university’s Bar Society.

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This short journal piece refers to R (Newby) v Secretary of State For Justice, the background to which is available here.

Put shortly, Phil Newby is a 48 year old man with motor neurone disease who on 22 October 2019 applied to the High Court for judicial review of the compatibility of s2(1) Suicide Act 1961 (hereafter ‘s2(1)’) with individuals’ rights to respect for their ‘private and family lives’, as per Article 8(1) of the European Convention on Human Rights. s2(1) provides that it’s a criminal offence in England and Wales for one person to intentionally encourage or assist the suicide or assisted suicide of another.

According to Adam Wagner of Doughty Street Chambers, the “ultimate aim of the case is to change the law to make assisted dying legal”. The case comes in the wake of R (Nicklinson) v Secretary of State For Justice, in which a majority of the Supreme Court in 2014 refused to declare incompatibility between the two aforementioned provisions because, amongst other things, the applicants hadn’t provided sufficient factual evidence to clearly substantiate the risks and benefits associated with relaxing the ban on assisted dying constituted by s2(1). What distinguishes R (Newby) is that it’s the first challenge of its kind to have collected and served substantial factual evidence so as to test the risks and benefits associated with legalising some form of assisted dying.

On 19 November 2019, the High Court refused Newby’s application for judicial review. Pervading the 12-page judgment, written by Irwin LJ (sitting with May J) and handed down 30 days after conclusion of oral submissions, was that courts mustn’t attempt to resolve moral questions, particularly when parliament have considered the issue and refrained from changing the law. Irwin LJ wrote that Newby’s “clear and dignified” statement “compels admiration and respect” but that, ultimately, “there are some questions which, plainly and simply, cannot be ‘resolved’ by a court as no objective, single, correct answer can be said to exist”. For that reason, “even if there was very widespread examination of evidence in these proceedings”, it was felt that the courtroom “is not an appropriate forum for the discussion of the sanctity of life”. This was compounded by “the context of repeated and recent parliamentary debate, where there is an absence of significant change in societal attitude expressed through parliament”. In those circumstances, and given that the judiciary were felt to “lack legitimacy and expertise on moral — as opposed to legal – questions’, Irwin LJ concluded that “courts are not the venue for arguments which have failed to convince parliament”.

In a statement following the ruling, Newby expressed that while the High Court’s decision was “disappointing to [him] and the many hundreds of others who support [his] case”, he’d continue “fighting on to bring attention to a law that is widely thought to be cruel, so that it can be replaced by something more humane and compassionate”. Indeed, Saimo Chahal QC, Newby’s solicitor, stated that “an appeal will shortly be lodged in the court of appeal”, given that “the prospect of parliament considering the issues is non existent”. Constituting an appeal against the Administrative Court’s refusal to grant permission for judicial review after oral hearing, action must be taken within seven days of 19 November.

Previously:

Assisted dying: a new legal challenge [Legal Cheek Journal]

Jordan Briggs is a second year undergraduate law student at the University of Oxford. He plans to complete a masters before pursuing a career at the bar.

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