International human rights

The temperatures are so low the athletes have been complaining about the cold, but the snow at the winter Olympics in Beijing is mostly artificial, and with diplomatic boycotts by the UK and a number of other nations there may not be too much of the original Olympic spirit of international cooperation and peaceful goodwill. So far, the fastest downhill race seems to have been the status of human rights in China, whose population is kept under more than usually tight control thanks to long maintained coronavirus restrictions as well as its now notorious national security law.

Although they are all sending sports teams, diplomatic boycotts have been declared by the US, UK and Canada along with India, Australia, Lithuania, Kosovo, Belgium, Denmark and Estonia, according to the BBC. The reasons given for the UK’s boycott, according to Iain Duncan Smith MP, who represents the Inter-Parliamentary Alliance on China, were that: “The Chinese government commits industrial-scale human rights abuses in the Uyghur Region, Tibet and sends near-daily military incursions into Taiwan’s airspace.” However, there is also considerable anger over the imposition and implementation of the national security law in the formerly democratic Hong Kong.

Anyone imagining that the games might provide a suitable context for political protest was advised to think again, according to stark official warnings reported by the Guardian: Protesting Winter Olympics athletes ‘face punishment’, suggests Beijing official. The report noted that

“ there are mounting concerns over the increasing intolerance of protest, dissent or criticism in or against China. Numerous human rights activists and lawyers have been arrested and jailed, and last year the Chinese tennis star Peng Shuai, disappeared from public view for several weeks after she publicly accused a former senior official of sexual assault, sparking an international campaign over her wellbeing.”

As to the situation in Hong Kong, a recent blog post on SLAW, the Canadian online legal magazine, paints a grim picture:

“Over the past few years, the precipitous fall of Hong Kong seems to be a saga no one wants to stick around to see the ensuing episodes. Widespread censorship, crackdown on press and academic freedom, and backlash on dissenting voices are enforcing a total takeover of Beijing over the city. Xi Jinping is making clear that the special administrative region will not escape his dictatorial and authoritarian vision of government and the world. Nowhere is this repression more acute than in the Hong Kong universities that were pivotal in giving the city its internationally renowned intellectual and academic reputation. Since the passing of the infamous National Security Law in 2020, Chinese authorities seem undeterred to extinguish any opposing views, especially voices coming from academia, the media and civil society.

In the post (Hong Kong’s National Security Law Provisions and Latest Cases) Marcelo Rodriguez, a law librarian at the University of Arizona Law School in Tucson, enumerates some important aspects of the security law as it has been implemented in Hong Kong and discusses three cases decided under the law. In one case an activist, who had been found guilty after chanting and displaying pro-independence slogans during peaceful protests, was sentenced to five years and nine months in prison.

A widely reported aspect of the crackdown has been the closing of news media outlets, such as Stand News, Citizen News and Apple Daily, with journalists who attempted to hold the government to account being deprived first of a voice and then of their very livelihoods. Vice reports how many of them have ended up working as cab drivers or in fast food outlets: They Were Reporters in Hong Kong. Now They Drive Cabs and Sell Fried Chicken.

“Front-line journalists who used to shout thorny questions at government officials fell silent. Some left the profession altogether, taking with them decades of experience and, in Lai’s case, stories that are now told in the confines of a cab instead of on the pages of a newspaper.”

Another concerning aspect has been the role of British judges continuing to serve in Hong Kong’s senior appellate court, the Court of Final Appeal. One of the most sinister aspects of the Hong Kong security law is that, by article 44, it gives the chief executive Carrie Lam the power to designate judges within each court to adjudicate cases brought under the law. That certainly raises questions about judicial independence, which foreign judges should be very careful to avoid appearing to endorse. A number of senior Law Lords from the UK have nevertheless continued to serve occasional stints on the bench of the Court of Final Appeal, along with judges from other common law jurisdictions, such as Australia. There is nothing to say they may not sit on appeals involving the national security law. Perhaps if they did, it would give them an opportunity to declare its incompatibility with the Basic Law signed in 1997 under which China solemnly undertook to respect Hong Kong’s separate legal system for the next half century. But one somehow doubts that would happen.

Writing in The Times, William Hague suggests We should pull our judges out of Hong Kong. He acknowledges the argument that the continued confidence of UK judges in the judicial independence of Hong Kong lends moral support to the local judges, but he says it is also “lending legitimacy to a system incompatible with our values”.

“The extent to which a judiciary, however well-intentioned, can operate independently when neither media nor legislators can operate freely must be open to serious question. … Nor does it seem credible to argue that the rule of law still prevails in Hong Kong.”

As The Times pointed out in an editorial last week (Judgment call),

“As long as eminent justices such as Lord Sumption give the court their imprimatur, China is able to maintain the fiction that Hong Kong remains a common law jurisdiction and not the puppet regime of an autocratic state. This in turn undermines any diplomatic pressure Britain and its allies may attempt to bring to bear.”

See also:

Legislation

The list of harmful content which internet companies will be required to remove under the Online Safety Bill has now been further extended, the government has announced.

The long awaited Bill in its current draft already places a duty of care on internet companies which host user-generated content, such as social media and video-sharing platforms, as well as search engines, to limit the spread of illegal content on these services. It requires content hosts and search engines to put in place systems and processes to remove illegal content as soon as they become aware of it but take additional proactive measures with regards to the most harmful ‘priority’ forms of online illegal content.

The priority illegal offences currently listed in the draft bill are terrorism and child sexual abuse and exploitation, but further priority offences have now been added (and there is a mechanism in the bill for the list to be further extended by the Secretary of State for Digital, Culture, Media & Sport). The extended list now includes:

  • revenge porn,
  • hate crime,
  • fraud,
  • the sale of illegal drugs or weapons,
  • the promotion or facilitation of suicide,
  • people smuggling,
  • sexual exploitation.

Previously internet firms would have been forced to take such content down after it had been reported to them by users but now they must be proactive and prevent people being exposed in the first place. The Bill will also require publishers of pornography to use age verification to prevent children accessing adult content.

Ofcom, the regulator, will be given power to issue fines of up to ten per cent of annual worldwide turnover to non-compliant sites or block them from being accessible in the UK.

Courts

Reporters and open justice campaigners have long complained about hearing lists and how difficult it is to find out in advance about which cases might be worth attending. It’s not just the listings but also the amount of information which is — or isn’t — provided to observers before or during the hearing, particularly given how much of it is written. HMCTS has had hearing lists on its list, as it were, ever since it began its massive £1bn modernisation and digitisation programme back in 2016. We’re now almost at the end of the twice-extended project development period, and only now — at last! — HMCTS has started to talk in more concrete terms of actually doing something about hearing lists.

That talk comes in the form of a blog post on the Inside HMCTS blog, Making hearing lists more accessible to court and tribunal users. This promises a new service that “will make it easier to find hearing lists and will be available on GOV.UK in one place and in a standardised format”. There’s a recognition of the different needs of litigants, legal professionals, media reporters and public observers. To this end they say “We’re working with focus groups representing the media, legal professionals and the Litigants in Person Engagement Group”.

However, despite highlighting a “commitment to open justice”, there still seems to be an assumption that this is effectively served by providing privileged access to media reporters. “Justice must be seen to be done, and local and national journalists are key to this. They need to see what’s happening in courts and tribunals so that they can decide when to attend and report on proceedings. They need the lists in good time, before hearings take place.”

The post envisages that “Legal professionals and the media can become verified users and subscribe to receive specific hearing lists by email, removing the need to contact courts or tribunals to be added to multiple distribution lists.” That suggests that some features of the service will be subject to some form of accreditation or gatekeeping. While there may be good operational reasons for privileging certain categories of user, such as the press, it would be good if the needs of other types of observer, such as legal bloggers, students and members of public interest groups could be considered as well. It may well be that they have been, but it would be good to know. Unfortunately, as with other aspects of the HMCTS Reform programme, one gets the impression that each development, however welcome in itself, is being conducted in a vacuum or silo, without reference to an integrated vision or any overall data collection policy.

UK Open Government has accused the government of “backsliding” on its commitments in its fifth National Action Plan (NAP5), the UK National Action Plan for Open Government 2021–2023, whose publication we reported on last week. We noted that the plan fell short in a number of respects in relation to open justice. (See Weekly Notes, 31 January 2022)

Now UK OGN has published a press release sharing their collective anger at the last minute removals of key promises, and a failure to engage on major areas of reform.

See also Tim Davies, Tim’s Blog: A look at the UK Open Government Partnership 2021–23 National Action Plan, which considers

Family law: books

The Family Justice Young People’s Board at Cafcass (Children and Family Court Advisory and Support Service) is composed of children and young people, aged between seven and 25 years old, living in England and Wales, who have either had direct experience of the family justice system or have an interest in children’s rights and the family courts. They support the work of the Family Justice Board.

The FJYPB has documented the stories of its members for several years in their ‘In Our Shoes’ series, capturing informative details of the experiences of young people in their journeys through the family courts. These stories have now been collected in a book: ‘In Our Shoes — experiences of children and young people in the family justice system.’ The book provides a unique learning and reflection opportunity for any professional working in the family justice system. It’s a chance to understand what it’s really like to walk in the shoes of children and young people as they navigate often difficult family situations.

Copies of the book can be obtained from Cafcass.

The fate of children and their families in the family courts is also the subject of Polly Curtis’s book, Behind Closed Doors. The author is a journalist who writes about the family justice system and in this book she interviews and tells the stories of various people involved in or caught up in that system, including children, parents, lawyers and social workers. Curtis argues that “we now remove more children from their parents than ever before, more than any other western country. Not because of a rise in physical or sexual abuse, but because of complex factors that are overlooked and misunderstood”. This is what she sets out to investigate.

The book is published by Virago at £16.99 in e-book and hardcover formats. It is reviewed by Alice Twaite on the Transparency Project blog.

Journalism

The winners of the Bar Council Legal Reporting Awards 2021 have now been announced. The competition was open to print/online journalists and their broadcast counterparts in recognition of the media’s role in promoting a greater understanding of the law. The winning entries, each of which is awarded £1000 in prize money, were:

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

AIRCRAFT — Carriage by air — Compensation and assistance to passengers: Civil Aviation Authority v Ryanair DAC, 02 Feb 2022 [2022] EWCA Civ 76; [2022] WLR(D) 62, CA

CONFLICT OF LAWS — Contract — Arbitration agreement: Lifestyle Equities CV v Hornby Street (MCR) Ltd, 28 Jan 2022 [2022] EWCA Civ 51; [2022] WLR(D) 60, CA

COURT OF APPEAL (CIVIL DIVISION) — Jurisdiction — Appeal: Greetham v Greetham, 28 Jan 2022 [2022] EWCA Civ 49; [2022] WLR(D) 52, CA

CRIME — Sentence — Defendant pleading guilty to sending malicious communications: R v Ladbrook (Christopher), 04 Feb 2022 [2022] EWCA Crim 113; [2022] WLR(D) 67, CA

EMPLOYMENT — Contract of employment — Implied term: Union of Shop Distributive and Allied Workers v Tesco Stores Ltd, 03 Feb 2022 [2022] EWHC 201 (QB); [2022] WLR(D) 63, QBD

EXTRADITION — Appeal — Jurisdiction: Public Prosecutors Office of the Athens Court of Appeal v O’Connor, 02 Feb 2022 [2022] UKSC 4; [2022] WLR(D) 61, SC(NI)

HUMAN RIGHTS — Discrimination — Similar relevant status: R (CN) v Secretary of State for Health and Social Care, 04 Feb 2022 [2022] EWCA Civ 86; [2022] WLR(D) 68, CA

NATIONALITY — British citizenship — Fees: R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department (R (O (a minor)) v Secretary of State for the Home Department), 02 Feb 2022 [2022] UKSC 3; [2022] WLR(D) 65, SC(E)

NEGLIGENCE — Duty of care — Dental practice: Hughes v Rattan, 04 Feb 2022 [2022] EWCA Civ 107; [2022] WLR(D) 64, CA

PLANNING — Development — Permitted development: CAB Housing Ltd v Secretary of State for Levelling Up, Housing and Communities, 03 Feb 2022 [2022] EWHC 208 (Admin); [2022] WLR(D) 66, QBD

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

NIPC Law: Practice — easyGroup Limited v Easylife Limited: Easygroup Ltd v Easylife Ltd [2021] EWHC 1705 (Ch), Ch D

UK Human Rights Blog: Supreme Court dismisses protestors’ appeal over PKK flag conviction: Pwr v Director of Public Prosecutions [2022] UKSC 2; [2022] WLR(D) 49, SC(E)

RPC Perspectives: No knowing receipt claim where equitable interest is destroyed: Byers v Saudi National Bank [2022] EWCA Civ 43; [2022] WLR(D) 51, CA

Transparency Project: Local authority support services in Wales and private law contact disputes: Re R-ER-E (Contact: Support from local authorities in Wales) [2021] EWFC B95, Fam Ct

Law & Religion UK: Article 9 and the COVID-19 lockdown in England: Hussain again: Hussain v Secretary of State for Health and Social Care [2022] EWHC 82 (Admin), QBD

Nearly Legal: Suitability and affordability — Court of Appeal on assessing affordability: Paley v Waltham Forest London Borough Council [2022] EWCA Civ 112, CA

Free Movement: How human trafficking victims can appeal against criminal convictions: R v AAD, AAH, and AAI [2022] EWCA Crim 106, CA

Other recent publications

Our review of the latest report in which state school students participating in an educational charity’s Model Law Commission make their suggestions for changes in the law. Plus other activities by social mobility charity BVL including news of a forthcoming moot.

Obiter J on the Law & Lawyers blog notes the Queen’s platinum jubilee, celebrations for which kicked off last week, and remarks that HM Queen Elizabeth II is now the longest reigning monarch in British history. The post links to discussions of the constitutional role of the monarch and the status of the Crown, and recalls an earlier post recording the Queen’s diamond jubilee ten years ago.

Writing in Byline Times, former diplomat Alexandra Hall Hall explains how, despite its claims of exceptionalism and the freedom to succeed outside of the European Union, in reality the UK is no longer “in the room where it happens”.

“I believe that friends and foes alike see a lonelier picture, of an embattled Prime Minister trying to distract from problems at home by posturing on the world stage. … Will his visit to Ukraine significantly shape and inform the position of others?”

Lucy Reed via her Pink Tape blog discusses the best way for those representing the various parties in litigation to collaborate on the drafting of court orders — ideally by taking turns and using Track Changes in Word.

“What really causes friction is poor communication by overburdened lawyers working under time pressure, doing a job that isn’t (or didn’t used to be) their job in the first place at the end of a long day.”

David Allen Green on his Law and Policy Blog discusses whether a written or codified constitution would, as some suggest, be a better protection against unconstitutional political behaviour in the light of recent “dramas”.

Prof Mark Elliott on Public Law for Everyone discusses the government’s plans for an overhaul of the Human Rights Act 1998 and its replacement with a British Bill of Rights.

And finally…

We hear a lot about AI bots helping with legal tech, but have you heard about the daleks working in the law library?

This was the creative response of Todd Scott to an original tweet by Cardiff University Library, about staff overhearing students attempt to reach a book from a high shelf, then… excitedly — “look, you can use this little dalek”.

That’s it for this week! Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.