Panopticon Generalis: Bridges & the lawfulness of Automated Facial Recognition (AFR) in public spaces in the UK

Samuel Street examines the lawfulness of automated facial recognition in the UK, the impact this poses for Article 8 rights, and the Court of Appeal’s decision in R (Bridges) v the Chief Constable of South Wales Police [2020].

A draft version of the upcoming EU artificial intelligence (AI) Act was recently leaked online, uncovering plans to prohibit the use of automated facial recognition (AFR) software by authorities in public spaces, except for the purposes of locating terror suspects, missing persons, and persons suspected of committing serious crimes.¹ AFR is described in the draft EU Act as posing an unacceptable risk to the social fabric of the Union.² In the UK there is yet no legislation which governs the use of AFR and other AI technologies in the way that the EU AI Act intends to do. 

This article explores the lawfulness of automated facial recognition technology (AFR) use by police forces in the UK, outlining how it engages with our Article 8 right to privacy, and how this was tested in the case of R (Bridges) v The Chief Constable of South Wales Police [2020]³. 

What is AFR? 

AFR works by capturing live images of facial features and matching them to a curated watchlist, drawn from photographic databases an authority may hold of a population. The automated technology is increasingly used by police forces in the UK, who create watchlists from police records they hold of members of the population, such as suspected criminals or terrorists. Any person in view of an AFR CCTV camera will have an image of their face taken, and their facial features scanned by the software. If their face matches the watchlist then the police will be alerted, but if there is no match then the person’s image is instantly deleted without an officer even seeing it. 

Proponents of the technology argue that allowing the police to identify actual and potential criminals in this way will reduce crime and make public spaces safer.⁴ However, AFR’s proliferation in the UK has been met with concern by many human rights and privacy groups. These groups see it as a dangerous ‘big brother’ technology which unacceptably interferes with our right to privacy and actualises the prospect of an Orwellian state mass surveillance system.⁵

AFR & Article 8 in the UK 

By capturing our data in real time, AFR clearly engages Article 8 of the ECHR⁶: The right to respect of our private and family life. Article 8(2) specifies that any interference with this right must be done so only ‘in accordance with the law’ and only when it is proportionate to do so. Police use of AFR in the UK is at present ‘in accordance with the law’ if it complies with certain provisions of Data Protection Act (DPA) 2018, the Surveillance Camera Code, and s.149 of the Equality Act 2010. s.35 of DPA 2018 requires that the police must either gain consent from members of the public to process their image using AFR or use it only when it is strictly necessary to do so. The test for ‘strictly necessary’ is severe, requiring that no less intrusive methods of surveillance are available and a proper, specific analysis on the proportionality of the AFR use is carried out.⁷ Section 35 also requires comprehensive guidance to be produced for any use of technology that intervenes with Article 8 rights. The interplay between the DPA 2018 and Article 8 is thus clear. 

R (Bridges) v The Chief Constable of South Wales Police [2020] 

The lawfulness of AFR use was tested in R (Bridges) v The Chief Constable of South Wales Police [2020] (“Bridges”). The case concerned AFR Located, a pilot AFR scheme conducted by South Wales Police (SWP). SWP deployed the technology in public spaces on about 50 occasions between 2017 and 2019. Edward Bridges, a civil liberties campaigner from Cardiff, was at two locations at which AFR was used in 2017 & 2018. Mr Bridges was not on any police watchlist, but he contended that simply by capturing him on camera SWP had violated his Article 8 right to privacy and contravened the Data Protection Act 2018. Bridges brought a claim for judicial review on these grounds, which was dismissed by the Divisional Court in September 2019. They found that although Mr Bridges’s Article 8 right had been interfered with, this had been done so in accordance with the law and was proportionate. The Court also rejected the data protection claims. 

Mr Bridges subsequently appealed on 5 grounds, and relevant to this article are grounds 1 and 2:  

1. The Divisional Court had erred in deeming SWP’s use of AFR on Mr Bridges to be in accordance with the law under Article 8. 

2. The Divisional Court was wrong to conclude that SWP’s use of AFR was proportionate under Article 8. 

The Court of Appeal allowed ground 1 because the guidance SWP had created for the AFR Locate scheme contained no directions for where the technology could be used and who was to be placed on the specific watchlists. The Court found this guidance to be inadequate and that it left far too much discretion in the hands of individual police officers, meaning the interference with Mr Bridges’s right to privacy was not in accordance with the law as required by Article 8(2). 

Perhaps more significantly, the appeal failed on ground 2 as the Court decided that the Divisional Court had correctly weighed up the actual and anticipated benefits of the technology’s use with the infringement upon Mr Bridges’s right. They agreed that the benefits of AFR Locate were potentially great for policing and general public safety, whereas the impact on Mr Bridges was minor. The Court refused to consider the potentials and hypotheticals of AFR use, and rejected Mr Bridges’s reference to Lord Kerr in Beghal v DPP⁸ that what is important is ‘the potential reach of the power’⁹. Indeed, the Court refused to make any general comment about the lawfulness of AFR, and instead opted to focus entirely on the specific and individual infringement on Mr Bridges’s rights in the two instances that he was caught on camera during the scheme. The Court agreed with the respondent that multiple negligible infringements on individual rights do not act cumulatively to become a major infringement – they remain negligible¹⁰ – and thus SWP’s use of AFR was proportionate in line with Article 8(2). 

The effect of Bridges 

So, while Bridges may show that Article 8 rights do not overtly prohibit the use of AFR in public spaces, it did at least specify that its use will only be lawful when governed by strict and clear legal guidance, and if in pursuit of a legitimate policing aim. Since Bridges, police use of AFR has expanded significantly across the UK. The impact of the judgment can be seen in the Met Police’s policy document on AFR technology, which sets out guidance and a legal framework for AFR use in terms that explicitly match the Court of Appeal’s requirements for lawfulness.¹¹ 

However, in absence of clear legislation that explicitly regulates AFR in the UK, and given the court’s refusal to rule on its general lawfulness in Bridges, police forces presently have a fairly wide discretion over when and how to use AFR in public spaces, as long as it is accompanied by clear guidance. For some, this places far too much power in the hands of the Police¹², an institution which has an apparent reputation for racism, discrimination, and an overall lack of transparency.¹³ Giving the police effective omnipresence in public spaces is a perhaps concerning prospect given that AFR technology functions using police watchlists; watchlists on which certain demographic groups (namely young Black men) are disproportionately placed¹⁴. The improperly regulated use of AFR may therefore reinforce and exacerbate extant policing failures, perhaps even resulting in a further ‘criminalisation’ of demographic groups disproportionately targeted by AFR. Indeed, in a report commissioned by the Ada Lovelace Institute, Matthew Ryder KC lambasted the current lacuna in regulatory safeguards for the use of AFR in the UK, suggesting that legislation which resembles the EU AI Act is desperately needed to ensure that AFR is safe and proportionate. His full report can be accessed here. 

Privacy campaigners can at least be reassured that general automated surveillance of the population by the Police, irrespective of whatever guidance they may release, is unlikely to ever be deemed lawful in a UK court, given Lord Sumption’s dictum in R (Catt) v Commissioner of Police of the Metropolis [2015]¹⁵ — that the first limb of Article 8(2), ‘in accordance with the law’, can never mean a legal basis ‘so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis’. Perhaps this is why the Court of Appeal refused to consider the hypothetical arguments made by Mr Bridges on this matter. Of course, if Parliament were to legislate to specifically allow this kind of general surveillance, then there is little the courts could do to intervene. In any case, the somewhat narrow Bridges ruling will likely be revisited in the future as AFR technology becomes an increasingly normal part of policing.  

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1. Clara Hainsdorf, Tim Hickman, Dr. Sylvia Lorenz, Jenna Rennie, Clare Connellan, ‘The pre-final text of the EU’s AI Act leaked online’ (6^th February 2024) < https://www.whitecase.com/insight-alert/pre-final-text-eus-ai-act-leaked-online#:~:text=On%20January%2022%2C%202024%2C%20the,followed%20by%20a%20258%2Dpage > ↩︎
2. Chris Stokel-Walker, ‘Europe’s New AI Rules Could Go Global—Here’s What That Will Mean’ (7^th February 2024) < https://www.scientificamerican.com/article/europes-new-ai-rules-could-go-global-heres-what-that-will-mean/ > ↩︎
3. R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin). ↩︎
4. Jeremy Swinfen-Green, ‘Facial Recognition in the City’ < https://www.business-reporter.co.uk/technology/facial-recognition-in-the-city >  ↩︎
5. Amnesty International, Press Release, ‘Ban dangerous facial recognition technology that amplifies racist policing’. (26^th January 2021) < http:// https://www.amnesty.org/en/latest/press-release/2021/01/ban-dangerous-facial-recognition-technology-that-amplifies-racist-policing/ &gt; ↩︎
6. Enshrined into UK law in the Human Rights Act 1998, Schedule 1, Part I, Article 8.  ↩︎
7. Data Protection Act 2018, s 35. ↩︎
8. Beghal v Director of Public Prosecutions [2016] UKSC AC 84, paragraph 102. ↩︎
9. R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin), paragraph 59 ↩︎
10. Ibid, paragraph 143. ↩︎
11. MPS LFR Policy Document, Ongoing < https://www.met.police.uk/SysSiteAssets/media/downloads/force-content/met/advice/lfr/policy-documents/lfr-policy-document2.pdf > ↩︎
12. Purshouse, J. and Campbell, L. (2022) Automated facial recognition and policing: a Bridge too far? Legal Studies, 42 (2). pp. 209-227. ↩︎
13. Baroness Casey of Blackstock, 2023. ‘An independent review into the standards of behaviour and internal culture of the Metropolitan Police Service’ <https://www.met.police.uk/SysSiteAssets/media/downloads/met/about-us/baroness-casey-review/update-march-2023/baroness-casey-review-march-2023a.pdf &gt; ↩︎
14. Ibid. ↩︎
15. R (Catt) v Commissioner of Police of the Metropolis [2015] UKSC 9, paragraph 11. ↩︎

Photo credit: Stephen Johnson from Creative Commons

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

Health Is a Human Right: An Examination of Policy Initiatives in the United Kingdom and Canada and the Need to Take Action

Julia Goodman reports on policy initiatives and ongoing challenges related to health inequalities in the UK and Canada, suggesting the need for further action.

Introduction
Equitable access to health is a fundamental human right as stated by the World Health Organization (WHO) and the United Nations (UN) in its Sustainable Development and Health Goals.¹ The principle of health equality seeks to provide “fair outcomes for everyone” while addressing “avoidable or remedial differences in health between groups of people.”² ”Health inequalities” are defined as “unfair, avoidable, systematic” and quantifiable differences in direct health outcomes across certain groups in society, as well as differences in indirect health indicators, such as access to care.³ For the UN and the WHO, making health a fundamental human right is a foundational step in encouraging developed nations to work towards achieving health parity for all. This includes addressing the health needs of marginalised groups who suffer from health inequalities and worse health outcomes.⁴ Although progress has been made in both states, policymakers in both countries are still striving to reduce health inequalities and to comply with international standards of health human rights.

Context of Health Inequalities and Recent Policy Initiatives in the UK and Canada

Health inequalities are measured in the UK and Canada by quantifiable differences in health outcomes. Between 2018-2020, English men and women living in the most deprived areas lived 9.7 and 7.9 years less, respectively, than those in the least deprived areas.⁵ Beyond life expectancy, there are disparities across other health indicators such as quality and access to care, levels of chronic and preventable disease, and other social determinants of health.⁶ Deconstructing the causes of differences in health outcomes is not clear-cut and the nature of health disparities is often related to intersectional factors, such as socioeconomic status, race, gender, and geography. As a result, developing specific policies that target disadvantaged or adversely affected groups effectively is challenging. For example, while certain ethnic groups, such as black or Asian, may have a longer life expectancy than white individuals, black women are four times more likely to die in childbirth than white women, demonstrating the complexity related to addressing specific forms of health inequalities.⁷

While there are also intersectional health disparities across Canada’s diverse population, the health outcomes of Indigenous peoples are disproportionately worse than the rest of the population. Life expectancy for Indigenous men is 9 years shorter than for non-Indigenous men; for women, it is nearly 10 years shorter. Furthermore, Indigenous groups are overrepresented in the addiction treatment systems and have higher rates of suicide per capita than the Canadian average. Long-standing health inequalities like these are, in part, the result of intergenerational trauma related to Canada’s colonial legacy and policies, such as the Indian Act and the residential school system.⁸ As a result, the urgent focus of policymakers is to redress long-standing injustices endured by Indigenous peoples, which are largely the effect of historical policy.

The UK and Canada – Change Driving Towards Health Equality

While the context of health inequality in both countries differs, there are similarities in the policy initiatives being undertaken by both governments.

1. Enhanced Data Collection, Measurement, and Reporting

Both the UK and Canadian governments are taking steps to implement more robust data collection methodologies and frameworks, which will be used to drive policy development. Recent research in the UK highlights that some former data collection methods have led to gaps in policymaker’s understanding of the true levels of health inequality. For example, certain health data collection methods were based on regional averages, obscuring levels of deprivation and health disparities in rural regions given the close geographic proximity between deprived and affluent areas.⁹ In 2021, the UK government introduced the Inequalities Dashboard, which captures more granular data at the local level, enabling policymakers to better detect and monitor health inequalities and drive effective policy development.¹⁰

In 2017, Canadian policymakers launched the Pan-Canadian Health Inequalities data tool to aid policy analysts and public health practitioners in identifying health inequalities faced by marginalised groups. The tool captures health disparities data from the entire population and collects specific health indicators that are more relevant to Indigenous groups, such as stigma and discrimination experienced in healthcare settings, feelings of social isolation and community belonging, and levels of intergenerational trauma.¹¹ The inclusion of a wider set of factors ranging from well-being to enhanced geographical data will serve as a solid foundation for policy development. The longer-term impact of these new data collection methodologies is in part dependent on how policymakers choose to use the insights delivered by these tools.

2. Engagement of Local Government and the Community

In recent years, the UK and Canada have engaged local governments and the community in policy development.

The UK has focused on empowering local communities to tackle the complex causes of health inequality. In 2022, the UK government passed the Health and Care Act which facilitates cooperation between health services, social care, and local governments. This act established the legislative framework for Integrated Care Systems (ICSs), which are collaboration units between National Health Service (NHS) organisations and local authorities. ICSs cover populations of 500,000 to 3 million people and are responsible for mitigating health inequalities.¹² The establishment of ICSs will enable patients with multiple, complex conditions to receive integrated care and health systems to ensure broader social determinants of health are taken into consideration.¹³ While the Health and Care Act puts ICSs on a statutory footing, newly formed ICSs will need to quickly learn how to partner with each other from a practical perspective, sharing collective responsibility and accountability, for this policy to successfully reduce health inequalities over the long term.¹⁴

In Canada, one of the most egregious ways in which policymakers have failed to uphold standards of health-related human rights is in the provision of clean drinking water for Indigenous groups. Longterm drinking water advisories (LDWAs) are health protection notifications about real or potential health risks related to drinking water that have been in place for over a year and result from the lack of clean drinking water and wastewater infrastructure in Indigenous Reserves. In 2013, the Canadian government introduced policy aimed at removing all LDWAs. However, there is wide acknowledgement that this legislation has fallen short since there are still ~30 LDWAs in place today.¹⁵ In recent years, the government has conducted consultations with First Nations peoples and community leaders to co-develop federal policy to drive the elimination of LDWAs (consultation is also being conducted for other policy initiatives to reduce inequalities suffered by Indigenous groups, including health inequalities).¹⁶ It is promising that, in December 2023, legislation has been tabled to address concerns that surfaced in the consultations, including the provision of adequate and predictable funding, the establishment of minimum standards and the pathway for ongoing engagement regarding new policy initiatives.¹⁷ In contrast to the UK, Canada’s LDWA policy approach has focused on consultation with key ethnic groups rather than localised empowerment, reflecting the need for a centralised and coordinated approach at the federal level to tackle the complex long-standing issue of LDWAs.

3. Stamping Out Embedded Bias and Prejudice in the Health System

In the UK and Canada, healthcare-related racism has been identified as a key driver of health disparities, leading to intervention from policymakers. Black mothers in the UK, for example, report significant bias and prejudice, such as nurses assuming they do not know who the father of their baby is, or inappropriate and missed diagnoses since many health practitioners are not versed in the differing health needs of various ethnic groups.¹⁸ At present, while NHS clinicians are encouraged to undertake optional Cultural Competency Training (CCT), there is no specific legal mandate for race-specific health training. Following calls for reform, policymakers have partially accepted a recommendation to review maternal health training curricula to include evidence-based learning on “maternal health disparities, its possible causes, and how to deliver culturally competent, personalised and evidence-led care”. These policies are still in development and present a significant opportunity to ameliorate health disparities while leveraging novel data insights and evidence related to race-specific healthcare. Each Local Maternity and Neonatal System will outline further policy measures in March 2024. However, the government is yet to accept recommendations to increase annual budgets for maternity services to £200m-£350m and to set up cross-government targets led by the Department of Health and Social Care to eliminate maternal health disparities, both of which are crucial to achieve the policy objectives.¹⁹

In Canada, there has been significant qualitative and quantitative measurement of the health disparities endured by Indigenous groups that are often the result of racial prejudices embedded within the health system. The harrowing stories of Brian Sinclair who waited 34 hours in the emergency room before dying due to a treatable bladder infection, and Joyce Echaquan, who live-streamed her racial mistreatment at the hands of hospital nurses before passing away, underline the absence of equitable, respectable, culturally competent, and dignified care for Indigenous groups.²⁰ Racial biases faced by Indigenous groups have led to persistent unmet healthcare needs, such as lack of monitoring of a chronic condition or screening/diagnosis (shown in the chart below).²¹ Since Canada’s race-specific data capture methods are more mature relative to the UK, the Canadian government has the appropriate data and evidence to mandate medical and nursing schools to provide race-specific education and training on Indigenous health issues, including the origins and impact of the residential school system, a step that will hopefully provide the foundation for culturally competent care.

Image Source: Statistics Canada, ‘Unmet health care needs during the pandemic and resulting impacts among First Nations people living off reserve, Métis and Inuit’, 30 August 2022

Conclusion
Every human being, irrespective of their background or socioeconomic status, should have access to quality healthcare. Policymakers in both the UK and Canada are focused on understanding the unserved needs of disadvantaged groups and are taking steps to promote trust in health systems to create a fairer, more just society. While there are opportunities to continue to shape and implement healthcare law and policies, both the UK, through recent policy initiatives, and Canada, through legislation addressing Indigenous injustices, are working towards improving the lives and health outcomes of marginalised populations and pushing to close the gaps related to health inequality. To continue making health equality a reality and to entrench the human right to healthcare access for all, we need the continued support of the policies and collaboration between all levels of regional and local government, advocacy partners, health industry groups, and you!

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Works Cited

1. World Health Organization. “Human Rights and Health.” http://www.who.int, 10 Dec. 2022, http://www.who.int/news-room/fact-sheets/detail/humanrights-and-health#:~:text=The%20right%20to%20health%20must; “SDG Indicators — SDG Indicators.” Unstats.un.org,unstats.un.org/sdgs/metadata/?Text=&Goal=3&Target=3.8.
   ↩︎
2. GOV.UK. “Health Disparities and Health Inequalities: Applying All Our Health.” GOV.UK, 11 Oct. 2022, http://www.gov.uk/government/publications/health-disparities-and-health-inequalities-applying-all-our-health/health-disparities-and-healthinequalities-applying-all-our-health. ↩︎
3. NHS Outcomes Framework Indicators for Health Inequalities Assessment. 2015; Note: We have used definitions of “Health Equity” and “Health Equality” from WHO, UN, NHS and the King’s Fund. The terms are often used interchangeably in UK policy. ↩︎
4. World Health Organization. “Human Rights and Health.” http://www.who.int, 10 Dec. 2022, http://www.who.int/news-room/fact-sheets/detail/humanrights-andhealth#:~:text=The%20right%20to%20health%20must. ↩︎
5. Office for National Statistics. “Health State Life Expectancies by National Deprivation Deciles, England – Office for National Statistics.” http://www.ons.gov.uk, Office for National Statistics, 25 Apr. 2022, http://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/healthinequalities/bulletins/healthstatelifeexpectanciesbyindexofmultipledeprivationimd/2018to2020. ↩︎
6. Williams, Ethan, et al. “What Are Health Inequalities?” The King’s Fund, The King’s Fund, 17 June 2022, http://www.kingsfund.org.uk/publications/what-are-health-inequalities. ↩︎
7. ONS. “Ethnic Differences in Life Expectancy and Mortality from Selected Causes in England and Wales – Office for National Statistics.” http://www.ons.gov.uk, 2021, http://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/lifeexpectancies/articles/ethnicdifferencesinlifeexpectancyandmortalityfromselectedcausesinenglandandwales2011to2014; Mundasad, Smitha. “Black Women Four Times More Likely to Die in
   Childbirth.” BBC News, 11 Nov. 2021, http://www.bbc.co.uk/news/health-59248345. ↩︎
8. The Canadian Press. “Lifespan of Indigenous People 15 Years Shorter than that of Other Canadians, Federal Documents Say | CBC News.” CBC, 23 Jan. 2018, http://www.cbc.ca/news/health/indigenous-people-live-15-years-less-philpott-briefing-1.4500307; Maina, Geoffrey, et al. “A Scoping Review of School-Based Indigenous Substance Use Prevention in Preteens (7–13 Years).” Substance Abuse Treatment, Prevention, and Policy, vol. 15, no. 1, 1 Oct. 2020, https://doi.org/10.1186/s13011-020-00314-1. Accessed 16 Oct. 2020; Wilk, Piotr, et al. “Residential Schools and the Effects on Indigenous Health and Well-Being in Canada—a Scoping Review.” Public Health Reviews, vol. 38, no. 1, 2 Mar. 2017, https://doi.org/10.1186/s40985-017-0055-6; Kim, Paul J. “Social Determinants of Health Inequities in Indigenous Canadians through a Life Course Approach to Colonialism and the Residential School System.” Health Equity, vol. 3, no. 1, 25 July 2019, pp. 378–381, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC6657289/, https://doi.org/10.1089/heq.2019.0041 ↩︎
9. APPG. “Inquiry Overview.” APPG Rural Health & Care, Feb. 2022,
   https://rsnonline.org.uk/images/publications/RuralHealthandCareAPPGInquiryOve.pdf. ↩︎
10. “Inequality Tools – OHID.” Fingertips.phe.org.uk, fingertips.phe.org.uk/profile/inequalitytools#:~:text=The%20Health%20Inequalities%20Dashboard%20provides. Accessed 17 Oct. 2023 ↩︎
11. “Pan-Canadian Health Inequalities Data Tool, 2017 Edition | National Collaborating Centre for Determinants of Health.” Nccdh.ca, 2017, nccdh.ca/resources/entry/pan-canadian-health-inequalities-data-tool-2017-edition.022, http://www.kingsfund.org.uk/publications/health-and-care-act-key-questions. ↩︎
12. The King’s Fund. “The Health and Care Act.” The King’s Fund, 17 May 2022, http://www.kingsfund.org.uk/publications/health-and-care-act-key-questions. ↩︎
13. Charles, Anna. “Integrated Care Systems Explained.” The King’s Fund, 19 Aug. 2022, http://www.kingsfund.org.uk/publications/integrated-care-systems-explained. ↩︎
14. Naylor, Chris. “Integrated Care Systems Need to Be Different – but How Exactly?” The King’s Fund, 28 Mar. 2022, http://www.kingsfund.org.uk/blog/2022/03/integrated-care-systems-need-to-be-different. ↩︎
15. Government of Canada, Statistics Canada. “Drinking Water.” Quality of Life Indicator, 1 Dec. 2023, www160.statcan.gc.ca/environment-environnement/drinking-water-eau-potable-eng.htm. ↩︎
16. Canada, Government of Canada; Crown-Indigenous Relations and Northern Affairs. “Developing Laws and Regulations for First Nations Drinking Water and Wastewater: Engagement 2022 to 2023.” http://www.rcaanc-Cirnac.gc.ca, 29 Feb. 2012, http://www.rcaanc-cirnac.gc.ca/eng/1330528512623/1698157290139. ↩︎
17. Government of Canada; Indigenous Services Canada. “Drinking Water and Wastewater Legislation.” Government of Canada; Indigenous Services Canada, 11 Dec. 2023, http://www.sac-isc.gc.ca/eng/1697555066364/1697555089256. ↩︎
18. 8 Peter, Michelle, and Reyss Wheeler. The Black Maternity Experiences Survey, a Nationwide Study of Black Women’s Experiences of Maternity Services in the United Kingdom. 2022. ↩︎
19. Hughes, Mark. “Women and Equalities Select Committee – Black Maternal Health: Government Response to the Committee’s Third Report.” Patient Safety Learning – the Hub, 30 June 2023, http://www.pslhub.org/learn/patient-safety-in-health-and-care/high-risk-areas/maternity/women-and-equalities-select-committee-%E2%80%93-black-maternal-health-government-response-to-the-committee%E2%80%99s-third-report-30-june-2023-r9679; Women and Equalities Committee. “Black maternal health: Government Response to the Committee’s Third Report.” House of Commons, 28 Jun. 2023. ↩︎
20. Horton, Jillian. “Opinion: I Was Brian Sinclair’s Doctor. I Understand How Our Health Care System Failed Him.” The Globe and Mail, 8 Oct. 2021, http://www.theglobeandmail.com/opinion/article-i-was-brian-sinclairs-doctor-i-understand-how-our-health-care-system/; “Health Care Staff Mocked, Chastised Joyce Echaquan All Morning, Hospital Roommate Testifies.” The Globe and Mail, 25 May 2021, http://www.theglobeandmail.com/canada/article-health-care-staff-mocked-chastised-echaquan-all-morning-hospital/. ↩︎
21. Government of Canada, Statistics Canada. Unmet Health Care Needs During the Pandemic and Resulting Impacts Among First Nations People Living off Reserve, Métis and Inuit. 30 Aug. 2022, www150.statcan.gc.ca/n1/pub/45-28-0001/2022001/article/00008-eng.htm. ↩︎

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

The Bill that was not killed – The Police, Crime, Sentencing and Courts Act 2022: Article 11 ECHR Compliant or not?

Puja Patel highlights how the Police, Crime, Sentencing and Courts Act 2022 threatens the right to protest in the UK, and critically examines the Act’s incompatibility with the European Convention on Human Rights.

Right back from when the Police, Crime, Sentencing and Courts Act 2022 (the ‘Act’) was merely a developing embryo in the Parliamentary womb, the shockwaves it sent through the country were tangible. ‘Kill the Bill’ protests took place around the country but despite this, on 28^th April 2022, the Bill crystallised into a law which now wields the power to outlaw the very protests which were staged to prevent its enactment. 

Protest is a powerful mechanism for accountability and has served as an essential instrument for change throughout human history; as articulated by Lord Denning, the right to protest is in the ‘public interest’ and is ‘often the only means by which grievances can be brought to the knowledge of those in authority…with such impact as to gain a remedy’^[i]. The fundamental nature of the right to protest is reflected by the inclusion of the right to peaceful protest within Article 11 of the European Convention on Human Rights (ECHR).

In clear breach of Article 11 ECHR, the Act would have outlawed the protests of the suffragettes in 1903-1918to secure the vote for women, Gandhi’s peaceful protests to liberate India from the British Empire, and the civil rights desegregation movement in the US. The consequences of this legislation are therefore dire; depriving citizens of their right to protest against the State and constituting a clear human rights violation and a bold exercise of authoritarian power.

Is the Act compliant with Article 11 ECHR?

The Act is not compatible with Article 11 ECHR. Whilst the Government claim that the Act pursues the legitimate aim of protecting the rights and freedoms of others^[ii], the Act does not comply with the legality and proportionality requirements set out in Article 11(2) ECHR.  

The Act makes five key changes to existing legislation under the Public Order Act 1986 (‘POA’) which directly impact the ability of the police to interfere with protests/processions.

Change 1 – outlawing protests/processions with ‘impact’

Pre-Act, a senior police officer had the power to impose such conditions upon a procession/assembly as appear to them necessary to prevent disorder, damage, disruption or intimidation^[iii]. The Act extends this power by empowering the senior police officer to impose such conditions upon a procession/assembly as appear necessary to prevent ‘impact’. 

Protest is inherently impactful. Notably, the legislation did not restrict the scope of these powers to ‘damaging’ or ‘dangerous’ impact, meaning that all and any protest is caught within the scope of this provision. Peaceful protest, non-disruptive protest, even silent protest will all create impact, and therefore police officers could lawfully interfere with any protest. This breaches the legality requirement of Article 11(2) as the unqualified scope of ‘impact’ renders this provision insufficiently clear and lacking in legal safeguards against arbitrary interferences by public authorities^[iv].

Likewise, the proportionality requirement of Article 11(2) was also breached because there were less restrictive means to achieve the government’s aim which would have struck a fairer balance between individuals and community interests^[v] such as restricting the scope of this provision to ‘damaging’ or ‘dangerous’ impact.

Change 2 – Suppressing protests/processions which may result in ‘noise’^[vi] which can cause ‘serious disruption’

The Act extends the power of a senior police officer to impose conditions to circumstances where the procession/assembly merely result in ‘noise which can seriously disrupt activities of nearby organisations’^[vii] which is defined as ‘where persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them’^[viii].

The legality requirement may arguably be met here; the Act provides a comprehensive, albeit non-exhaustive, definition of ‘serious disruption’^[ix]. However, there is a clear breach of the proportionality requirement. It is noteworthy that the protest need not cause actual serious disruption; the police are entitled to assess whether the protest ‘may’ cause such noise, and may therefore pre-emptively interfere. It is difficult to envision a protest which the police cannot argue ‘may’ result in noise which could theoretically meet the Act’s definition of serious disruption to the activities of nearby organisations. 

Illustrative example: A small group of protestors chanting in a park, could meet this definition. The noise need only be capable of preventing someone in a nearby organisation from completing any one activity e.g. someone may not be able to hold a meeting due to the noise. Whilst this may be annoying and inconvenient, protest is a fundamental right, whereas a meeting can be rescheduled or held elsewhere. Moreover, it is not necessary that the protest create any such noise or prevent any such meeting taking place; in order to interfere, the police need only deem the protest capable creating noise which is capable of preventing such a meeting.

This clearly demonstrates why the scope of ‘serious disruption’ which entitles the police to interfere is simply too broad.

Less restrictive means were available, such as defining disruption to mean significant and prolonged harm to fundamental rights and freedoms (such as those protected by the ECHR) like access to healthcare or religion. 

Change 3 – Suppressing protests/processions which may result in noise which has a ‘relevant and significant impact’^[x]

The Act also enables the same police power to be deployed if the procession/assembly may result in noisewhich has a ‘relevant’ and significant impact on the persons in the vicinity of the processions^[xi].

The legality requirement may be met, since a definition of relevant impact was provided: where it may result in intimidation/harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity or it may cause such persons to suffer alarm or distress^[xii]. 

The proportionality requirement is clearly breached; the definition of relevant impact brings all protests, including peaceful, non-disruptive protest, within its scope. 

Illustrative example: Two people standing outside the office of an oil company chanting a slogan (‘Oil kills our planet’) can fall within the scope of ‘relevant impact’ and the police can therefore lawfully interfere. The two people chanting the slogan may cause the firm’s employees ‘reasonable firmness’ to feel ‘alarm or distress’. However, empowering the police to interfere with this protest is blatantly disproportionate; it is peaceful, it does not even obstruct the doorway and the protestors are on public pavements and not trespassing. 

Less restrictive means clearly exist to regulate protest and to achieve the government’s aim, such as qualifying the scope of this provision to ‘significantly harmful or dangerous impact’.

Change 4 – lowering the threshold for sanctions; dispensing with the requirement for ‘knowledge’ in order to incur liability ^[xiii]

The Act lowers the previous threshold for protestors to commit a public order offence by stating that a person is guilty at the time the person fails to comply with a condition the person knew or ought to have known was imposed^[xiv]. This dispenses with the requirement for a person to knowingly fail to comply (subjective mens rea). Instead, the Act renders mere failure to comply with a condition (objective standard) an offence. Whilst this meets the legality criteria, it is disproportionate. 

As articulated by Dr Richard Martin, Assistant Professor of Law at LSE, the Act has allowed ‘more intrusive restrictions to be placed on the right to peaceful protest’ through creating ‘lower thresholds and lesser safeguards’^[xv] against interference. Change 4 is the prime example of this. 

Illustrative example: In a larger-scale protest, if a few individuals breach a condition of the protest, everyone involved is now committing an offence by participating in a protest which breaches the imposed conditions. Without the requirement for subjective intention to fail to comply, all protestors are now liable. Those merely peacefully exercising their Article 11 rights will now also be punished. This is disproportionate, particularly when one considers the increasing ease with which police can impose conditions upon protests/processions (see Changes 1-3). Whilst it is a defence for protestors to prove that failure to comply arose from circumstances beyond their control, this would only retrospectively exonerate them from liability and would not prevent the interference with their protest. Moreover, the existence of sanctions inherently constitutes an interference and restriction on the right to protest; this is explored below.

The ‘chilling effect’

Punitive measures mean restrictions on the right to protest^[xvi] since sanctions which deter and discourage people (the ‘chilling effect’) from partaking in demonstrations constitute an interference.^[xvii] The option for retrospective judicial redress is largely nullified by the legal cost barriers to judicial review, with dramatic cuts to legal aid funding resulting in a falling number of judicial review claims (Lomri, 2019). In any case, as commentator Mead correctly observes, ‘we should not have to rely on going to court to have our rights upheld’^[xviii]. Therefore, sanctions should be imposed only when strictly necessary. The lack of requirement for subjective knowledge under the Act therefore constitutes a disproportionate interference.

Change 5 – interfering with one-person protests^[xix]

For the same reasons as Changes 1 and 2, the Act’s conferral of power upon police officers to interfere with one-person protests breaches Article 11 ECHR.

Additionally, the argument that it is proportionate to deploy the same legal powers upon one-person protests as protests conducted by a thousand people is, at best, difficult to sustain. 

Conclusion:

The Act is incompatible with the ECHR, breaching the legality and proportionality requirements set out in Article 11(2) ECHR.  Urgent reform is needed; however, it remains to be seen how such change can be effected now that the democratic mouthpiece of protest has been effectively removed from the public voice….

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^[i] Hubbard v Pitt [1976] QB 142

^[ii] Government Policy Paper, Public Order Bill: Factsheet [online] Available at: https://www.gov.uk/government/publications/public-order-bill-overarching-documents/public-order-bill-factsheet#:~:text=Sections%2012%20and%2014%20of,an%20organisation%20by%20noise%3B%20serious

^[iii] Public Order Act 1986, s12 and s14

^[iv] Lashmankin and Others v. Russia, nos. 57818/09 ECHR 2017 [410]          

^[v] DPP v Ziegler [2021] UKSC 23 [16]

^[vi] Police, Crime, Sentencing and Courts Act 2022, s73 and s74

^[vii] Public Order Act 1986, s12(1)(aa) and s14(1)(aa)

^[viii] Public Order Act 1986, s12(2C) and s14(2C)

^[ix] Defined in s12(2A) Public Order Act 1986 as where the procession/assembly may result in prolonged disruption of access to any essential goods or any essential service (in particular (non-exhaustive list): money, water, energy, fuel, system of communication, place of worship, transport facility, educational institution, service relating to health, or where the procession/assembly may result in significant delay to a time-sensitive product being delivered to consumers (s12(2A) and s14(2A) Public Order Act 1986); ‘time-sensitive’ is defined as a product whose value/use to consumers may be significantly reduced by a delay in supplying that product (s12(2B) s14(2B) Public Order Act 1986).

^[x] Police, Crime, Sentencing and Courts Act 2022, s73 and s74

^[xi] Public Order Act 1986, s12(1)(ab) and s14(1)(ab)

^[xii] Public Order Act 1986, s12(2D) and s14(2D)

^[xiii] Police, Crime, Sentencing and Courts Act 2022, s75

^[xiv] Public Order Act 1986, s12(5A) and s14(5A)

^[xv] Martin, R. (2021). ‘The Protest Provisions of the Police, Crime, Sentencing and Court Bill: A Modest Reset of the Scales?’ Criminal Law Review 1008

^[xvi] Ezelin v. France, no.11800/85, ECHR 1991 [39]

^[xvii] Bączkowski and Others v. Poland, no. 1543/06, ECHR 2007 [66]-[68] 

^[xviii] Joint Committee of Human Rights. (2021b). The Government response to covid-19: freedom of assembly and the right to protest, Thirteenth Report of Session 2019-21 Report, together with formal minutes relating to the report by authority of the House of Commons and the House of Lords. [online] Available at: https://committees.parliament.uk/publications/5153/documents/50935/default/

^[xix] Public Order Act 1986, s14ZA

Photo credit: Michael Mandiberg from Creative Commons

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

The Qatar World Cup 2022: A Critique of Western Criticism

Alina Shaidy applies a postcolonial and intersectional feminist critical eye to the liberal interventionism and human rights abuses surrounding the Qatar World Cup.

The 2018 World Cup was held in Russia and the upcoming 2026 World Cup will be held across North American Countries, including stadiums in the United States. Neither Russia nor the United Sates have particularly ‘clean’ human rights records. When questioned about the choice to allow Qatar to host despite their current human rights infractions, FIFA President Gianni Infantino’s response was that Europeans ‘should be apologising for the next 3,000 years before starting to give moral lessons’, a very telling deflection. So, why is there controversy surrounding the World Cup being held in Qatar, when the same criticism could be levelled at other host countries?^[1]

This is not to say that Qatar is above criticism simply because other countries also commit human rights abuses. Every country’s human rights record should be critically examined. Amnesty International cites migrant workers’ rights, women’s rights, and LGBT+ rights among the list of human rights abuses that have and continue to occur in Qatar.^[2] No abuse of human rights should go unchecked, but are the United States, the UK, or other Western nations really in a position to criticise Qatar, while similar abuses are littered throughout their own past and present? 

In 2017, UK nationals were one of the five most prevalent potential victims of modern slavery.^[3] In the same year, the UK was hailed as ‘exemplary’ in its anti-slavery efforts but, in the years since the Modern Slavery Bill, the UK’s slavery policies have arguably regressed, not improved. With continuing rhetoric about abuses to the system and moves towards making slavery an immigration and asylum issue, the UK are not exactly the shining example of tackling modern slavery that their criticism of Qatar suggests them to be.^[4]

So why the double standard and heightened criticism for non-Western countries? And could this hypocritical western criticism constitute a renewed form of post-colonialism? Many Western countries disguise issues such as slavery and women’s rights behind rhetoric involving healthcare or immigration instead. Is it simply the case that where human rights abuses are not explicitly labelled as such, they are much easier to ignore? Or is the power and history of the West such that they have the global leverage to silence any mass criticism where non-Western countries do not? 

Several Countries that have protested Qatar being hosts have laws that are misaligned with these protests. Advocates of women’s rights have heavily criticised the guardianship system in Qatar, which requires women to be tied to a male guardian, often needing their permission to make life decisions and receive forms of healthcare (particularly reproductive health care).^[5] However, when these criticisms come from countries such as the United States and the UK, that critical eye should also be turned inwards. 

In the United States, the recent landmark decision to overturn Roe v Wade meant that abortion is no longer protected as a constitutional right. Individual states are now free to control their own abortion legislation, which led to the immediate criminalisation of abortion in 10 states, with more imposing strict limitations on legal abortions.^[6] Some states, such as Arizona, only allow abortion where the mother’s life is endangered, providing no exception for rape-related pregnancies or if the mother is underage.^[7] Abortion law in the UK is very complicated. While legal and accessible, Justice Secretary Dominic Raab stated that it was unnecessary to include abortion in the proposed Bill of Rights as abortion law in the UK is ‘settled’ and refused to enshrine abortion as a fundamentally protected right.^[8]

So, we need to be as vigilant and critical of our own states and their laws as we are towards Qatar.

The attack on women’s rights in the UK and the United States is not only limited to abortion. In the UK there is a distinct gender divide in treatment when it comes to reproductive sterilisations. Male sterilisation is protected under the 1972 National Health Service Family Planning Amendment Act, making it far more accessible. In contrast, it is much more difficult to be accepted for female sterilisation.  The NHS guide for sterilisation states that: a GP may recommend counselling before referral, can ‘refuse to carry out the procedure if they do not believe it is in your best interest’, and that a woman ‘may be more likely to be accepted if … [they’re] over 30 and have had children’.^[9] When looking at first-hand accounts the picture becomes clear, women’s bodies are still being regulated by patriarchal structures in healthcare, where women are told they are too young to be sterilised at 26, despite their male counterparts being offered vasectomies at 24.^[10] Through these first-hand accounts we see the significance of this issue, as women’s autonomy is still questioned and their own desires are ignored by medical professionals, despite men in the same position being given the privilege of agency over their own bodies.

Similarly, in the United States, doctors are unlikely to consider female sterilisation before a woman has had children, with many women requiring their husband’s consent first. Not only are women not allowed to make a choice regarding their own reproductive future, but they are actively dismissed. It is only once this male consent is given, or when doctors consider the woman has birthed ‘enough’ children that she would not regret her decision, that female sterilisation is considered^[11]. Where Qatar reveals a very obviously patriarchal system, examples such as this show that similar, better hidden systems also exist in the West. While these system may be less explicit and therefore easier to ignore, the West needs to hold up a mirror and critically examine its own reflection.

Taking just this small example of women’s rights as a point of comparison, the hypocrisy of western criticism is obvious. While no state should be limiting the rights of its people, when it is done in the West, opposition is primarily social and political and there is never global condemnation of these actions. In comparison, when these similar systems and abuses exist in the East, while more obvious in their expression, they are immediately labelled as barbaric and trigger liberal interventionism.

These contemporary comparisons of law and society call to mind the West’s historical abuse of human rights throughout their imperial and colonial history. The West’s history of colonialism, militarism and problematic domestic laws must be acknowledged when looking at human rights abuses. Western history does not paint a picture of acceptance and tolerance, but rather one of brutality, exploitation, and what would amount to modern human rights abuses.^[12]

But should the devastation that litters Western countries’ history books mean that they should not be able to criticise other country’s human rights abuses? And would this line of thinking not simply lead to no country ever having the right to criticise another? Undoubtedly world history is plagued with human rights atrocities committed by Western states, against countries in the East. But if we used historical wrongs to absolve modern nations of their social and moral responsibility to uphold human rights, then there would be no global progress.

Ultimately comparing human rights abuses across the world is an incredibly complex discussion that cannot fully be developed through the lens of a single World Cup. The human right abuses that occurred in Qatar before and during the World Cup 2022 must undoubtedly be put to an end. But is it right that this charge is being led by countries that have not only historically abused human rights, but who continue to do so, arguably in many of the areas that Qatar itself are being criticised for?

Many of those who travelled to Qatar to experience the World Cup have come away with positive experiences, with women saying that they felt safer and more comfortable, arguably due to the strict social rules that were imposed during the World Cup.^[13] Instead, should we turn the question to FIFA as an organisation? Why did they give the bid to Qatar if they were aware of the human rights abuses that occur? Why do they continue to allow funding from countries such as Qatar and Dubai, despite seemingly disagreeing with their moral and social values? How far can we truly make sports apolitical when the ‘politics’ being referred to are fundamental human rights? If we look to FIFA and the way they conduct their business, is there a much more telling story about how human rights can and will be compromised, for the right price? 

Instead, I propose that each country should look at their own current standard of human rights before attempting to criticise other countries or to hold the moral high ground. The hypocrisy of Western countries becomes most evident, not through a tallying of every country’s historical wrongs, but through contemporary comparison. While Qatar made a pledge to improve its human rights when accepting the bid for the World Cup, it did not do enough to ensure the safety and comfort of both the people who would travel to the World Cup (particularly LGBT+ fans who felt unwelcomed in the run up to the World Cup), or its own people. In the aftermath of the World Cup, the patriarchal, slave-labour, and anti-LGBT+ structures in Qatar still exist and must undoubtably be amended. However, the Western countries that have taken such strong stances against the Qatari hosts are not the beacons of human right that they profess themselves to be. They lack an essential, self-critical eye which would enable them to see the reflection of their own society in Qatar and work to improve themselves, alongside fighting for improvement in other countries. 

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^[1] Although this article relies on the global divisions of ‘West’ and ‘East’ to represent ideological and socio-political dynamics, these terms are used as a representation of these divides and not as an acceptance of these contentious and slightly anachronistic terms.

^[2] ‘Qatar 2021’ (Amnesty International) < https://www.amnesty.org/en/location/middle-east-and-north-africa/qatar/report-qatar/> accessed 16 December 2022

^[3] Global Slavery Index, <https://www.globalslaveryindex.org/2018/findings/country-studies/united-kingdom/>, accessed 21 January 2022

^[4] Haroon Siddique, (The Guardian, 8 November 2022) ‘UK Rolling Back Efforts to Tackle Modern Slavery’ <https://www.theguardian.com/world/2022/nov/08/uk-rolling-back-efforts-to-tackle-modern-slavery-charity-says>, accessed 21^st January 2022

^[5] ‘Qatar 2021’ (Amnesty International) < https://www.amnesty.org/en/location/middle-east-and-north-africa/qatar/report-qatar/> accessed 16 December 2022

^[6] Rose Ireland, ‘What does the US Supreme Court’s decision to overturn Roe v Wade mean for abortion rights in the US and beyond?’ (Saunders Law, 5 July 2022) https://www.saunders.co.uk/news/what-does-the-us-supreme-courts-decision-to-overturn-roe-v-wade-mean-for-abortion-rights-in-the-us-and-beyond-2/> accessed 17 December 2022

^[7] Katie Kindelan and Mary Kekatos, ‘Where abortion stands in your state: a state-by-state breakdown of abortion laws’ (ABC News, 27 July 2022) <https://abcnews.go.com/Health/abortion-stands-state-state-state-breakdown-abortion-laws/story?id=85390463> accessed 17 December 2022

^[8] ‘No Strong Case for Changing Abortion Rules, Says Dominic Raab’ (BBC News, 29 June 2022) <https://www.bbc.co.uk/news/uk-politics-61981988>, accessed 22 January 2022

^[9] NHS ‘Female Sterilisation’ (NHS, 18 March 2021) < https://www.nhs.uk/conditions/contraception/female-sterilisation/> accessed 16 December 2022

^[10] Rachel Thompson ‘Doctor No: The Women in their 20s Being Refused Sterilisations’ (Mashable, 25 May 2016) <https://mashable.com/article/female-sterilisation-uk>, accessed 22 January 2022

^[11] Shira Feder, ‘A Woman was told she needed her husband’s permission to get her tubes tied. Her story went viral, but it’ not uncommon’ (Insider, 25 February 2020) < https://www.insider.com/a-woman-needed-husbands-consent-to-get-her-tubes-tied-2020-2> accessed 17 December 2022

^[12] Gianni Infantino, FIFA President, (Speech at FIFA News Conference, 19 November 2022) < https://www.skysports.com/football/news/12098/12750801/gianni-infantino-fifa-president-hits-out-at-qatar-world-cup-criticism-in-extraordinary-speech-ahead-of-tournament>

^[13] Shaimaa Khalil, ‘Qatar: Why women feel safer at World Cup 2022’ (BBC News, 16 December 2022) <https://www.bbc.co.uk/sport/football/63991529> accessed 17 December 2022

Photo credit: Jernej Furman from Creative Commons

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

Exploring the Impact of the UK Online Safety Bill on Privacy

Ho Vun Hui explores how the UK Online Safety Bill, in its attempt to regulate the digital space, could impact user privacy, especially considering its implications on end-to-end encryption.

The UK Online Safety Bill (the “Bill”) is an ambitious legislation intending to regulate the digital space by holding tech companies accountable for the harmful content shared on their platforms. Youtube, WhatsApp, Tiktok, Instagram, and Facebook would all be impacted. Amid the variety of provisions, a significant concern arises about its impact on user privacy, especially considering its implications on end-to-end encryption. This article examines the impact of the Bill on privacy, focusing on how it might affect end-to-end encryption and the broader implications for digital communication.

The Bill and End-to-End Encryption

End-to-end encryption ensures that only the sender and recipient can access the content of a communication, preserving the confidentiality of digital interactions. This has become a cornerstone of secure digital communication and has been instrumental in protecting user privacy, business secrets, and even national security.

However, the Bill could have far-reaching implications for end-to-end encryption. In its current form, it allows an unelected official, under Ofcom’s purview, to potentially compel tech companies to bypass this encryption, providing a backdoor to private communications of users of tech companies’ platforms. This effectively nullifies the purpose of end-to-end encryption, turning a secure communication channel into a potential surveillance tool.

Implications for Privacy

The provision of the Bill that grants power to Ofcom to compel the proactive scanning of private messages compromises privacy at a fundamental level. Research shows it would be possible for governments to use a tool called ‘client-side scanning’ to search people’s private messages, for example performing facial recognition, without their knowledge.^[1] By creating a backdoor into private communications, the Bill opens the door to routine and indiscriminate surveillance, affecting not just ordinary citizens but also businesses that rely on encrypted communications to protect their trade secrets, or journalists and activists who depend on encryption to shield their work from prying eyes. In an open letter, social media platforms, including WhatsApp and Signal, have protested against the Bill, which they emphasised could undermine the UK’s privacy and safety.^[2]

This potential surveillance does not just infringe on privacy but could also have a chilling effect on freedom of expression. It was argued that freedom of expression is a fundamental human rights and that legislation requiring online platforms to censor legal speech fails to comply with international freedom of expression standards.^[3] Further, if individuals fear their private communications may be surveilled, they may be less likely to express dissenting opinions or discuss sensitive topics. This undermines the democratic values of a free society.

The Bill will impact privacy globally: the interconnected nature of the digital world means any breach of end-to-end encryption would affect users worldwide. Given the global nature of tech giants such as Facebook, Google and Apple, the Bill may expose users worldwide to increased surveillance and potential data breaches, regardless of their location or nationality.

Arguments For the Bill

Research conducted by Ofcom shows that 97% of children aged 3-17 in 2022 access to the internet.^[4] Therefore, advocates for the Bill argued that its emphasis on safeguarding children online is both urgent and necessary. Contrary to claims that the Bill will undermine privacy, advancement in technology and encryption can strike a balance between privacy and online safety. The advancement of technology and increase in online crime including cybersecurity attacks, trolling and abuse on social media and the risks to vulnerable groups including children have rightly worried many people and organisations who want to see greater regulation of this space.^[5]

It was argued that experts have demonstrated that detecting and disrupting child sexual abuse in end-to-end encrypted environments is achievable without necessarily compromising privacy rights. The Bill is seen as a significant step towards compelling tech companies to prioritise child safety and innovate solutions that preserve the right of private communications. The Bill’s proponents believe that it creates an environment conducive to achieving a balanced settlement between these two important subjects.

Criticisms of the Bill

Proponents of the Bill assert that surveillance is possible without undermining end-to-end encryption. However, this contradicts the very purpose of encryption, which is to provide a secure, private channel for communication. By introducing a backdoor, the security provided by encryption is fundamentally compromised.

Moreover, the UK government claims that its intention is not for the Bill to be interpreted as a threat to privacy falls short when juxtaposed with the Bill’s wordings. Regardless of the government’s stated intentions, the absence of explicit protection for encryption in the Bill presents a tangible threat to privacy.

Conclusion

The Bill, while intending to provide robust protection from online harms, poses a significant threat to privacy due to its potential impact on end-to-end encryption. If passed in its current form, it risks enabling routine surveillance, jeopardising free expression, and undermining global digital privacy and security. As the Bill continues to be debated, it is crucial that these privacy concerns are addressed to ensure that the legislation does not compromise the fundamental right to privacy under the guise of online safety.

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References

[1] Laura Gallagher and Caroline Brogan, ‘Tech mandated via Online Safety Bill ‘could turn phones into surveillance tools’’ (Imperial College London, 19 May 2023), <https://www.imperial.ac.uk/news/244952/tech-mandated-online-safety-bill-could/> accessed 7 June 2023

[2] Alex Hern, ‘WhatsApp and Signal unite against online safety bill amid privacy concerns’ (the guardian, 18 April 2023), < https://www.theguardian.com/technology/2023/apr/18/whatsapp-signal-unite-against-online-safety-bill-privacy-messaging-apps-safety-security-uk> accessed 5 June 2023

[3] Digital, ‘UK: Online Safety Bill is a serious threat to human rights online’ (Article 19, 25 April 2022),  <https://www.article19.org/resources/uk-online-safety-bill-serious-threat-to-human-rights-online/> accessed 7 June 2023

[4] Ofcom, ‘Children and Parents: Media Use and Attitudes’ (2023) < https://www.ofcom.org.uk/__data/assets/pdf_file/0027/255852/childrens-media-use-and-attitudes-report-2023.pdf> accessed 6 June 2023

[5] Andrew Parsons, ‘Online Safety Bill UK: WhatApp, encryption, and the implications for privacy’ (Womble Bond Dickinson, 18 April 2023) < https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/reconnect-online-safety-bill-uk-whatsapp-encryption-and-implications-privacy> accessed 7 June 2023

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Photo credit: “VPN & Internet Security on Your Computer for Online Privacy” by mikemacmarketing is licensed under CC BY 2.0.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

HRU Speaker Event: Alexandra Holker, British Red Cross

On 29^th March 2023, the BPP Human Rights Unit welcomed Alexandra Holker, Humanitarian Policy Officer at the International Directorate of the British Red Cross to discuss the British Red Cross’s response to humanitarian emergencies, including the earthquakes in Turkiye and Syria as well as her work on Climate Policy with a focus on the intersection between protecting the environment and human rights. The event was chaired by HRU Events Student Directors, Aisha Shiza Tariq and Angella Marzola-Browne. Dashaiyani Jeyakumar reports.

On 29^th March 2023, students attended the BPP Human Rights Unit’s online speaker event with guest Alexandra Holker. Alexandra Holker has worked for the British Red Cross since 2020 and is currently working as Humanitarian Policy Officer at the International Directorate. She has extensive experience working in India, the US, the UK and Tanzania for organisations such as the UN, ICRC and IPPPF. She has worked in policy, advocacy and research in areas such as climate policy, displacement, UK parliament policy and gender.

Angella asked Alexandra for a brief introduction of the British Red Cross and its work. Alexandra explained that the British Red Cross is one of the oldest national societies within the Red Cross and Red Crescent Movement, the largest humanitarian network in the world. It is governed by a Board of Trustees and the Royal Charter. The organisation was founded in 1870 and provides crisis support to anyone, anywhere in the world. Its priorities include disasters and emergencies, health and social welfare, as well as migration and displacement.

Alexandra joined the British Red Cross three weeks after finishing her Masters thesis in November 2020. She started as a Public Affairs Coordinator in the UK Policy team before moving into the International Directorate as a Humanitarian Policy Coordinator. She was also promoted to Humanitarian Policy Officer last year. As a Policy Officer, 75% of her work focuses on climate policy. Her role is varied as it is a mixture of writing internal and external briefings, speaking at events, organising round tables, and working with the government, development offices, and other NGO and movement societies like ICRC, and IFRC. She has had multiple roles in the British Red Cross. She also founded and runs the Neurodiversity network at the British Red Cross. Her work is very diverse, especially at the early stages of her career. 

Along with that, Alexandra has a varied academic background as she graduated from St. Andrews University in 2019 with a degree in Art History specialising in women’s representation in South Asia and she also holds her Masters degree from SOAS in Development Studies achieved in 2020. She explained how studying at these two institutions helped her realise that she wanted the role of humanitarian policy officer in this sector. Her first experience was at the House of Parliament when she was 17 years old and that experience sparked her passion for policy change. After her first year at Universty, working in Tanzania as a volunteer on a UK government scheme taught her a lot about the potential harmful effects of aid work, white saviours, and volunteerism in this sector. She also gained an understanding of the ethical implications of government volunteering. Throughout the rest of her time, she ran numerous gender equality initiatives, such as with an organisation devoted to getting women into the workplace and more jobs, speakers events and UN initiatives. She spent much time doing feminist work.

Discussing how to find a job in this sector and dealing with the challenges of this, Alexandra advises that the best thing to do is email and message people on LinkedIn, ask for a call, ask for internships despite it being paid or unpaid. As a student, she used every summer and holiday to gain experience, such as through internships. This could combine her passion for travelling. She explained that emailing speakers or people who are involved in the development sector would help in getting an opportunity as it is more about communicating and contacting a lot of people for voluntary experiences. She further added that it is really important and impressive compared to the fact that one could afford to get to New York which is a more privileged experience. She added rejection is a normal part of seeking a job. If one wants to work and get experience in this sector, one should be open-minded about the organisations that one chooses to work for as working in this sector is always unpredictable.

Angella also asked about Alexandra’s social media use and how she uses Twitter in her work. Alexandra explained that she uses Twitter extensively to follow up on her talks and attend panels. As it is a formal and institutional approach to working with the public and governments, she can use it in her activism work rather than in her policy work. She also spoke of founding the “Spare Ribs Club” as a passion outside of the Red Cross. This can be found on Instagram and is a community of young feminists explore radical feminism and radical activism.

Moving on to the specifics of the Syria-Turkiye earthquake and how the British Red Cross has contributed to the aid effort; the Red Cross Movement is on the ground in both countries aiding rescue efforts and providing emergency medical treatment, shelter, food, warm blankets and winter kits. The Turkish Red Crescent and Syrian Arab Red Crescent help people on the ground. Both National Societies have roots already in the communities they serve providing unique access to the hardest areas. The IFRC is also bringing in international support efforts and the British Red Cross use cash assistance and cash programming. It is a way of providing humanitarian and early recovery assistance using cash vouchers. It can be used in various crises, and it is flexible for individual needs. Concerning the recent Syrian-Turkiye cash assistance, this provides cash to cover basic needs for two months, and other cash voucher systems for long-term needs. As a result, the cash will be distributed elsewhere through the remittance company. Families will have full access to their identified needs. A rapid market assessment is carried out before this comprehensive response to ensure that basic commodities are available in sufficient quantity and quality on local markets. As a result of the February earthquake, continuous market monitoring has been conducted throughout this implementation.

Using these systems within the national societies of each country and according to the circumstances before, during and after the crisis, cash can be used as a mode of delivering humanitarian assistance making it versatile, dignified and capable of meeting a wide range of needs determined by the people themselves. The British Red Cross has specific expertise in this area. They have a cash hub and have invested in building the capacities and systems so that the Syrian Red Crescent could be ready to set up a cash programme such as this one which has really helped in response to the earthquake.

Alexandra discussed how climate policy would alter our society if it became a human right and what that entails. She explained that the British Red Cross is not a human rights-based organisation and spoke of climate justice and human rights from her own knowledge. Climate policy and human rights refer to the recognition that all individuals have the right to a healthy environment and a stable climate. In addition, governments have a duty to protect and preserve these rights. Climate policy should respect and uphold basic human rights. These rights include life, health, food, water, and shelter. Taking into account the differential impact of change on differential populations, it should involve the meaningful participation of those affected by climate policies. Alexandra answered the question of what are the key obstacles to making this a universal right for everyone. The first concern was the lack of political leadership to prioritise climate policy and recognise it as a fundamental human right. One of the challenges is that balancing the interests of different stakeholders and the need to protect human rights. For example, social industries, climate activists, and government leaders are unable to make a decision and cannot agree on how to move forward with the climate crisis. Also, there may be economic and technological barriers to climate policy. In the UK, many people do not think climate change and global warming are a reality.

Alexandra further continued that enshrining human rights with climate policy means that governments and other stakeholders have a legal obligation to protect and promote the rights to a healthy environment and a stable climate. It would also ensure that current policies are designed and implemented in a way that respects the fundamental human rights. ​​​​This could involve developing legal frameworks that prioritise human rights and environmental protection. Enshrining climate policy in human rights ​​would require a holistic approach that integrates social economic and environmental factors into policymaking and implementation. It is imperative to remember the Red Cross Movement principles, especially neutrality and independence.

Angella asked Alexandra about the emotional and toll of working with people who have been through traumatic events. Alexandra believes it is necessary to devote life to humanitarianism and politics. The barrier between what is happening in other people’s lives and what is happening during the day is a grey area. It is imperative to be empathic but not emotional about what one hears. There are some strategies and resources available as well as training to help you improve your well-being and there is also something called trauma-informed working. To understand humanitarian work and trauma or the people you are helping, the British Red Cross focuses on trauma-informed leadership. One thing you should know when working in this sector is that as much as you devote your life to this field of work, having a personal life outside is crucial.

Students were also encouraged to ask questions. Alexandra was asked about the British Red Cross’s support to people with disabilities. Alexandra explained that a lot of work needs to be done on diversity in the humanitarian sector in general. Currently, the British Red Cross encourages its staff to work from home and in the office. They are willing to do as much as they can to help. Alexandra spoke about how to work for the British Red Cross and concluded by saying that there are other ways to support the organisation. Apart from donations, everyone is welcome to participate or volunteer online or in -person. This includes organising a fundraising event or sharing a message on social media.

Disclaimer: The BPP Human Rights blog, and all pieces posted on the Blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Religion, Women, and Autocracy: Why Iran’s Fight for Religious Freedom and Women’s Rights is so Important Today

Pauline Moorkens discusses the women-led revolution in Iran, how the fight for religious freedom is linked to one for gender equality, and the importance of media coverage.

“Jin, jiyan, azadi”^[1]

Following the murder of 22-year-old Mahsa Amini on 16th September 2022, thousands of people have taken to the streets of Iran to express their outrage and demand political reform and criminal justice. Today, 6 months have passed, and more than 522 protestors have been killed.^[2] The women-led revolution in Iran can be seen as a fight for religious freedom since it challenges the Islamic Republic’s strict interpretation of Islam and its imposition of religious laws on society, particularly on women. Since the Islamic Revolution in 1979, Iran has been governed by a theocratic regime that enforces strict Islamic laws and customs.^[3] These laws include mandatory hijab, i.e., veiling, for women in public, strict rules on gender segregation, and limited access to education, employment, and political representation for women. Since Amini was murdered by the morality police for incorrectly wearing her veil, Iranian men and women have been at the forefront of a movement calling for greater freedom and equality. Women have organised protests, removed their hijabs in public, and campaigned for changes in laws that discriminate against women. However, 6 months later, calls for gender equality reached a tipping point with protesters all over Iran being sentenced to death. The country’s strict interpretation of Islam has sparked a movement to promote a more inclusive and tolerant understanding of the religion in the country and is decisive in more ways than one.^[4]

For many women in Iran, the fight for religious freedom is also a fight for gender equality and human rights. They argue that the strict interpretation of Islam that the government enforces is discriminatory and violates their rights to freedom of expression, association, and religion. These rights, recognised by many intergovernmental organisations, merely act as an invitation as soft law instruments are not incorporated in every sovereign state. Therefore, the women-led revolution in Iran is not just a struggle for political or social rights, but also for legal protection and a constitutional shift. The importance of media in this issue cannot be undermined. Indeed, the media and more precisely the internet “encourages pluralism and provides opportunities for realizing freedom of expression” and is instrumental at a global level for a country where free press is not allowed.^[5] The women-led revolution in Iran is a critically important social and political movement that exigencies extensive featuring throughout worldwide media for a number of reasons:

1. Representation: Women in Iran are fighting for their rights and freedoms in a country that has long been known for its oppressive policies towards women. By featuring their struggle in the news, the world can witness their bravery and resilience in the face of adversity.
2. Awareness: News coverage can bring greater awareness to the challenges and obstacles facing women in Iran. This can help to build empathy and understanding of the issues they are facing and can encourage more people to support their cause.
3. Global impact: The women-led revolution in Iran has the potential to impact not just Iran, but the region and the world at large. By featuring this movement in the news, we can highlight the global significance of their struggle and encourage international support.
4. Accountability: News coverage can hold governments and organizations accountable for their actions, or lack thereof. By featuring the women-led revolution.

One example of why the women-led revolution in Iran needs to be featured more in the news is the case of Nasrin Sotoudeh. Nasrin Sotoudeh is a prominent human rights lawyer and women’s rights activist who has been imprisoned by the Iranian government for her advocacy work. She has been sentenced to 38 years in prison and 148 lashes for her activism, including defending women who have removed their mandatory hijabs in public. Nasrin Sotoudeh’s case has received international attention and condemnation, but it is just one of many examples of the Iranian government’s crackdown on women’s rights activists. Many women have been arrested, tortured, and imprisoned for their activism, and their cases often go unnoticed by the international community. By featuring these cases more prominently in the news, the world can become more aware of the Iranian government’s human rights abuses and the women who are risking their lives to fight for their rights. This increased awareness can lead to more international pressure on the Iranian government to release political prisoners, respect human rights, and create a more equal and just society. Additionally, greater media coverage of the women-led revolution in Iran can inspire and empower women in other parts of the world who are fighting for their rights and freedoms. The struggle of Iranian women is not just a local issue, but one that resonates with women in many other countries where gender inequality and discrimination persist. By featuring their stories, the news can help to build solidarity among women and create a global movement for gender equality and human rights.

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Footnotes

[1] Bayram, S., Mohtasham, D., Iran’s protesters find inspiration in a Kurdish revolutionary slogan, 2022.

[2] AFP, At Least 522 Have Died in Iran Protests, Human Rights Report Says, Radio Free Europe/Radio Liberty, 2023. https://www.rferl.org/a/iran-protests-death-count-human-rights-report/32224340.html#:~:text=At%20least%20522%20people%20have,security%20forces%2C%20the%20agency%20reported. Accessed February 15, 2023.

[3] Sadjadpour, K., Reading Khamenei: The World View of Iran’s Most Powerful Leader, 2019. Accessed February 15, 2003.

[4] Aarabi, K., Shelley, J., Protests and Polling Insights From the Streets of Iran: How Removal of the Hijab Became a Symbol of Regime Change, 2022.

[5] Bychawska-Siniarska, D., Protecting the Right to Freedom of Expression Under the European Convention on Human Rights, 2017.

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Photo credit: Yasin AKGUL via AFP.

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DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Human Rights in Ukraine

Mihaela Arabadji reviews how Russia’s invasion has impacted human rights in Ukraine and how various countries have responded.

‘We will win the war and then we will go to the sea in Crimea,’ this is what a pupil from Ukraine wrote in his essay about his plans for spring.¹ This child, like many others in Ukraine, want the war to end as the rights of children and all citizens of Ukraine are violated. Let us remember the massacres in the Ukrainian city, Bucha, where the Russian army tortured civilians, shot on the streets, and threw them into wells. Women, men, and children were killed and the Russian army tried to burn their corpses. The president of Ukraine asked the United Nations to hold Russia accountable by investigating the massacres committed by Russia in Ukraine, creating an international tribunal for the defence rights and the conviction of the guilty, like the Nüremberg trials.² 

On January 30th 2023, the Office of the High Commissioner U.N. published that a total of 7,110 civilians were killed, 438 of these fatalities were children, and 11,547 were injured, 842 of these were children.³ The Russia’s ongoing aggression against Ukraine, is a deliberate contravention of the United Nations Charter by the massive human rights violations, crimes against humanity and war crimes. A recent report from the Office of Commissioner for Human Rights indicates that innocent people are being killed and their homes and lives are destroyed.⁴ Many speakers, during a UN discussion on the Ukrainian situation said that Russia has violated international human rights law and international humanitarian law. Even if the latest violations were condemned, quite a few speakers expressed the importance of the strongest condemnations from all United Nations Members: Estonia on behalf of European Union and Denmark on behalf Norway, Republic of Korea, Slovenia, Switzerland, Germany, Ireland, France, North Macedonia, Australia, Luxembourg, Lithuania, Venezuela, Russia, Netherlands, Syria, Czech Republic, Bosnia and Herzegovina, Iceland, Estonia, United States, United Kingdom, Belarus, Italy, Montenegro, Denmark, Republic of Moldova, Slovakia, Belgium, Poland, Bulgaria, Portugal, Sweden, Georgia, Malawi, Albania, Latvia, Türkiye, Austria, China, Romania, Japan, Finland and Liechtenstein. They emphasised that ‘all the perpetrators must be held accountable.’⁵  

The U.N. rights chief, Volker Tuerk, declared on December 15, 2022, the actual numbers of injured and deceased are likely to grow higher as U.N. monitors still registers crimes against civilians. This has a horrendous impact on children as an estimated of 1.5 million are at risk of anxiety, post-traumatic stress disorder and other mental conditions.⁶  

Additionally, the commission documented evidence of summary executions, rape, unlawful confinement, torture, ill-treatment, and other sexual violence. Although, Moscow denied deliberately targeting the civilians, the Commission found that war crimes, violations of human rights and international humanitarian law have been committed in Ukraine. ⁷ 

The day of February 24, 2022, when the Russian leadership started a war against Ukraine, will not be forgotten by both Ukrainians and the entire world, who hoped that such a day would never come. Since August 24, 1991, when Ukraine won its independence, it has always oscillated between the West and Russia, with which it had intense and long economic connections. The ongoing crisis has deeper roots, arising from the troubled history of this state, which failed to find its own way and quickly became a “pawn” in the ongoing dispute between Russia and the West, “dependency” being the key word of the dispute.⁸ 

What are Russia’s interests?

The biggest Russia’s disapproval was the entry into NATO not only of the former allies (Poland and Romania) but also of the 3 Baltic Republics, former members of the Soviet Union (Latvia, Lithuania, and Estonia). The last straw for Russia was the European Union’s attempt to draw Ukraine closer to the West; this triggered a chain of events which led to the annexation of Crimea.⁹ 

Ukraine has an important geostrategic interest for Russia. Accordingly, Russia is doing everything it can to keep Ukraine as a ‘buffer state’ between Russian territory and NATO by re-placing it in Moscow’s circle of dominance to prevent Ukraine from joining NATO or growing relations with EU. In addition, Russia is trying to build the Eurasian Union – as a rival to the EU, NATO, and the USA, which without Ukraine are no longer interested.¹⁰ 

EU interests 

The EU and its Member States are united in their firm support for Ukraine and strongly condemn Russia’s unprovoked and unjustified military aggression. EU leaders have repeatedly asked Russia to immediately stop its military actions, unconditionally withdraw all military forces and equipment, and fully respect Ukraine’s territorial integrity, sovereignty, and independence.¹¹ In response to the military aggression, the EU has shown unity and strength and provided Ukraine with humanitarian, political, financial, and military support. 

Great Britain has provided significant military aid to Ukraine since the beginning of the Russian invasion. ‘Britain has the necessary resistance to be with Ukraine ‘until victory’’, promised foreign minister, James Cleverly, in his speech before the annual conference of the Conservative Party.¹² The head of British diplomacy declared: ‘We believe in freedom, in the rule of law. We believe that an aggressor cannot invade his neighbour with impunity. […] For this reason, we stand with the brave Ukrainians who defend their homeland.’¹³  

The United Kingdom government acted quickly to help protect the most vulnerable people, children, women, the elderly, and people with disabilities in Ukraine and in the regions around Ukraine. The UK provided £220 million for humanitarian assistance, including setting up 4 health facilities which provide medical supplies and aid; providing clean water and food; partnering with UNICEF to cater Water, Sanitation and Hygiene services and education to children and families; contributing towards UNFPA programmes for people affected by  gender-based violence and for sexual health provision; funding frontline medical assistance to provide specialist training,  while establishing mobile health clinics to help the people in need.¹⁴  

The EU’s help has also been crucial. It provides child support, humanitarian aid, helps refugees through temporary protection mechanisms like the UK and macro-financial assistance to foster stability.¹⁵ Following from the EU-Ukraine Summit, EU is providing nearly 50 billion euros for humanitarian, emergency, budgetary and military support.¹⁶ At the summit, Ursula von der Leyen introduced the modern childcare strategy where children, without parental care due to the war, can grow up in a loving environment that makes them confident and strong. This includes capacity building and a twinning project to provide the best possible care for orphans.¹⁷ 

Who is still ‘pro’ war? 

At the same time, some countries refused to condemn Russia’s military actions that have already cost the lives of hundreds of civilians, deciding not to quit their historical or commercial ties with Russia. 141 countries voted for the UN Security Council Resolution condemning the invasion, with only 5 against. China decided to abstain from voting on the resolution and has since offered to negotiate peace between the nations in conflict. Belarus supports the invasion of Russia, which promised supporting Putin, claiming that West is the one who provoked him. Many geopolitical analysts consider that Alexander Lukashenko and Belarus are just puppets of the Kremlin regime.¹⁸ The president of Syria, Bashar al-Assad, praised Putin for his deadly invasion, blaming, at the same time, the Western ‘hysteria.’ Likewise, the leaders of Venezuela and Cuba offered strong support to Putin, accusing the US and the West.¹⁹ 

In conclusion the path chosen by Moscow, of aggressing Ukraine and the entire Western world, will eventually end in catastrophe. Later, Russia may have a chance for a new beginning. But for the moment, the Ukrainian people are to be congratulated for the courage they show in defending their country. As Roman Goncharenko stated, ‘Ukraine has the right to choose its own destiny’.²⁰ 

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References

1. Anatol Cibotari,’’We will win the war and then we will go to sea in the Crimea.’ A pupil from Ukraine wrote an essay about his plans for spring’ (Replica, 16 March 2022) <https://replicamedia.md/ro/article/N0XQ8zPK2/vom-castiga-razboiul-si-dupa-vom-pleca-la-mare-in-crimeea-un-elev-din-ucraina-a-scris-o-compunere-despre-planurile-sale-pentru-primavara.html&gt; accessed 10 December 2022
2. Ibid.
3. Office of the High Commissioner for Human Rights, ‘Ukraine: civilian casualty update 30 January 2023’ (United Nations Human Rights, 30 January 2023) <https://www.ohchr.org/en/news/2023/01/ukraine-civilian-casualty-update-30-january-2023#_ftn1 > accessed 1 February 2023
4. Ibid.
5. Human Rights Council, ‘Human Rights Council Discusses the Situation of Human Rights in Ukraine and in the Democratic Republic of Congo under its Technical Assistance and Capacity Building Agenda Item’ (United Nations Human Rights, 4 October 2022) < https://www.ohchr.org/en/press-releases/2022/10/human-rights-council-discusses-situation-human-rights-ukraine-and-democratic&gt; accessed 27 November 2022
6. Lisa Schlein, ‘UN: Gross Human Rights Violations Mark Ukraine War’ (VOA, 15 December 2022) < https://www.voanews.com/amp/gross-human-rights-violations-mark-ukraine-war/6877702.html&gt; accessed 17 December 2022
7. RFE/RL,’UN Says Russia Responsible for ‘Vast Majority’ Of Human Rights Violations Documented in Four Regions of Ukraine’ (RadioFreeEurope RadioLiberty, 18 October 2022) < https://www.rferl.org/amp/ukraine-un-report-war-crimes-russia/32090144.html&gt; accessed 27 November 2022
8. Ibid.
9. Arthur Elisei, ‘Russia-Ukraine Conflict’ < https://www.academia.edu/7683899/CONFLICTUL_RUSIA_UCRAINA > accessed 15 December 2022
10. Ibid.
11. European Council, ‘EU response to Russia’s invasion of Ukraine’ (16 December 2022) < https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/ > accessed 18 December 2022
12. AGERPRES, ’Great Britain promises to stand by Ukraine ‘until victory’’ (Economica, 4 October 2022) < https://www.economica.net/marea-britanie-promite-sa-fie-alaturi-de-ucraina-pana-la-victorie_616461.html&gt; accessed on 10 December 2022
13. Ibid.
14. GOV.UK, ‘UK government’s humanitarian response to Russia’s invasion of Ukraine’ (GOV.UK, 14 December 2022) < https://www.gov.uk/government/publications/uk-governments-humanitarian-response-to-russias-invasion-of-ukraine-facts-and-figures/uk-governments-humanitarian-response-to-russias-invasion-of-ukraine-facts-and-figures > accessed 3 February 2023
15. European Council, ’EU response to Russia’s invasion of Ukraine’ (European Council, 3 February 2023)< https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/#support > accessed on 3 February 2023
16. President of Ukraine | Volodymyr Zelensky, ‘Joint statement following the 24th EU-Ukraine Summit’ (3 February 2023) < https://www.president.gov.ua/en/news/spilna-zayava-za-pidsumkami-24-go-samitu-ukrayina-yes-80765 > accessed on 4 February 2023
17. European Commission, ‘Statement by President von der Leyen at the joint press conference with Ukrainian President Zelenskyy’ (2 February 2023) <https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_23_546 > accessed on 4 February 2023
18. Stefan Dragomir, ‘Which countries support Russia in the war in Ukraine?’ (Click!, 3 March 2022) < https://click.ro/actualitate/international/new-content-412312.html&gt; accessed 1 December 2022
19. Ibid.
20. Roman Goncharenko,’Comment: Ukraine will Survive, but the West should be ashamed!’ (DW, 24 February 2022) < https://www.dw.com/ro/comentariu-ucraina-va-supravieţui-dar-vestul-ar-trebui-să-se-ruşineze/a-60906533&gt; accessed 1 December 2022

Photo Credit: Ukrainian Presidential Press Office via AP.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Migrants Crossing the Channel: ‘You won’t be saved […] I didn’t ask you to leave’

Sarah Chua explores the experience of migrants crossing the Channel, how their human rights have been impacted and discusses the solutions which could help those seeking asylum.

‘You won’t be saved […] I didn’t ask you to leave’^[1].

These were among words recorded in emergency calls, said by the operator after the line was cut. Is that mockery we hear? Some underlying discrimination? Or the jaded response of emergency workers dealing with ever increasing Channel crossings? Or perhaps frustration at their own inability to do anything?

A year after the tragedy of 24 November 2021, in which 27 migrants^[2] drowned in the English Channel and four others remain missing, the French newspaper Le Monde obtained extracts from the ongoing French investigation and published an investigative report critical of the response from French authorities.

The French government vowed that punishment would be meted out should the French responders be found wanting. While civil liability for negligence exists in English and French law, French law additionally imposes criminal liability for omissions^[3].

Across the channel, the Marine Accident Investigation Branch published an interim report that confirmed that ‘some of the events’ indeed occurred within UK waters^[4]. It would seem, then, that there may have been failings on both sides of the Channel.

Clearly, there is no one solution.

Both French and UK governments are adopting a firm stance based on deterrence, dissuasion, and destroying the ‘business model of people-smugglers’^[5]. Suella Braverman is venturing to go further with a new law preventing illegal entrants from applying for asylum.

Meanwhile, on the ground, rescue workers in the Channel are clearly facing challenges in both logistics and coordination. Although it is laudable that British and French coastguards are seeking to improve cooperation, red tape can cause delays where minutes make a substantial difference for someone drowning or freezing to death.

Utopia 56, a French association which coordinates volunteer efforts especially in Calais, published a chronology of the events which took place in the early hours of 14 December 2022 when at least four perished^[6]. It took about an hour to dispatch the first rescue boat after the distress call; this hour does not include the time required to locate the migrants and arrive at where the waves might have carried them.

While political deliberations are going on, organisations such as Utopia 56^[7] and Amnesty International UK^[8] are renewing their call for safe passage and legal routes for asylum seekers, which thus far has been limited to specific nationalities and circumstances. Additionally, the current routes exclude migrants who do not have a passport or equivalent travel papers, who are all the more vulnerable to propositions from smuggling gangs and human traffickers. The British Red Cross tweeted on 14 December:

‘Nobody puts their life at risk like this unless they feel they have no other option, and until we have more accessible safe routes for people to claim asylum, there is a danger we may see more such incidents.’

‘They feel they have no other option’

What complicates the migrant crisis is that there is no fixed migrant profile. The Home Office has noted an increase in Albanians in the recent months^[9]. In addition, with Albania considered as a safe country, there does not appear prima facie to be grounds for an asylum claim. Why then would they attempt the perilous journey?

Based on data released by the Home Office, the BBC estimates around 45,000 people would have made the crossing on small boats last year up to early December^[10]. According to The Guardian, at least five deaths were recorded last year^[11]. Statistically, this puts the risk of death around 0.01% – certainly a reassuring promise that opportunistic smugglers could make in exchange for anything from £2,000 to £5,000 per person.

The Big Issue spoke to migrants in various parts of Calais for a feature^[12]. They estimate that 70% of these migrants meet the criteria for asylum but have no legal alternatives to claim asylum. Among the remaining 30% would certainly be those who believe that the West is the paradise portrayed in the media. Forum shopping of a different kind also exists – a migrant found it too cold in Stockholm, saw too many homeless people in Paris and was persuaded that the UK would be a more welcoming place.

The volunteers working with them struggle with the idea of giving them a reality check. One of them shared that it would have been too late by the time the migrants arrive at Calais. When news of the Rwanda plan intended to deter migrants reached the camp, the volunteers saw suicides^[13].

What are Human Rights?

Right to life. Right to liberty and security. Right to respect for private and family life. These are among the rights listed in the European Convention on Human Rights^[14], a convention that the UK was among the first States to ratify. But is there a right to choose where to live?

It is hardly in question whether individuals fleeing peril in their own countries should be allowed to claim asylum, even if these countries are otherwise considered safe. The issue arises when refugees wish to choose where they seek asylum, whether because of perceived rates of success or because they believe it would be a better cultural fit.

Although there is no specific prohibition against choosing, section 16 of the Nationality and Borders Act 2022 provides for asylum claims to be declared inadmissible where the applicant has a ‘connection’ to a ‘safe third State’. The impact of this provision remains to be seen, but it would not implausible to declare a claim were inadmissible in the case of an illegal crossing from France. In addition, the Rwanda plan could see migrants hoping to begin life anew in the UK finding themselves in a different culture on a different continent.

The question of choice also applies to migrants who leave their own countries in hope of a better opportunities. History tells us of many migrations. Certainly, the majority of us have ancestors who lived in a different town, country or continent from us, and our ancestors surely had their share of perilous journeys in search of a better life. How different are opportunistic migrants from our grandparents and great-grandparents?

We are certainly appreciative that migrants on the verge of drowning in the Channel are being rescued, but which side of the Channel should they be brought to? Could migrants be threatened by traffickers if rescued by French authorities and brought back to France? How quickly should rescue teams intervene? How much manpower can we afford to actively patrol the Channel? What is a fair standard to impose on rescue workers? We can speak of human rights for refugees and migrants, and what of the rights of emergency workers operating in difficult conditions?

Who are they?

In a certain sense, the UK is a victim of its own success and migrants are drawn to the paradise they imagine Great Britain to be that they would not stop along the way – and certainly not opposite the white cliffs of Dover. Who are they? Albanians, Afghans, Iranians, Iraqis, Syrians, they are refugees, they are migrants. They are human.

Law is retrospective; it punishes wrongdoers or awards damages after the event. Law also looks to the future, whether to deter migrants or traffickers. It is a challenge to have adequate legislative safeguards to allay fears of a migrant influx, and yet to make allowances for the migrants without appropriate travel papers, all the while cracking down on modern slavery and human trafficking. But, above all, may the law be human. Just as the law protected us and our ancestors, may the law protect others to come.

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References

^[1] Julia Pascual, ‘L’enquête sur la mort de 27 migrants dans la Manche en 2021 accable les secours’ Le Monde (13 November 2022) < https://www.lemonde.fr/societe/article/2022/11/13/migrants-morts-en-traversant-la-manche-le-24-novembre-2021-l-enquete-accablante-pour-les-secours_6149691_3224.html > accessed 18 December 2022

^[2] The term ‘migrant’ is used in a general sense to encompass all persons who seek to migrate. While there is a legal distinction between refugees and migrants, this is hardly helpful in our context – one can only tell apart the two when their asylum claims are considered.

^[3] Article 223-6 of the French Penal Code defines the imprisonable offence of not rendering assistance to a person in danger.

^[4] Marine Accident Investigation Branch, ‘Interim Report’ (Current Investigations, November 2022) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1119949/MigrantVessel-InterimReport.pdf > accessed 16 December 2022

^[5]  Home Office, ‘UK and France joint statement on small boat incident in the Channel’ (14 December 2022) < https://www.gov.uk/government/news/uk-and-france-joint-statement-on-small-boat-incident-in-the-channel > accessed 18 December 2022

^[6] Utopia 56, ‘Au moins 4 personnes décédées dans la Manche – 1 an après, l’histoire se répète’ (16 December 2022) < https://utopia56.org/au-moins-4-personnes-decedees-dans-la-manche-1-an-apres-lhistoire-se-repete/ > accessed 16 December 2022

^[7] Utopia 56, ‘Au moins 4 personnes décédées dans la Manche – 1 an après, l’histoire se répète’ (16 December 2022) < https://utopia56.org/au-moins-4-personnes-decedees-dans-la-manche-1-an-apres-lhistoire-se-repete/ > accessed 16 December 2022

^[8] Amnesty International UK, ‘The Right to Asylum’ (Amnesty International UK, 20 April 2021) < https://www.amnesty.org.uk/right-asylum > accessed 18 December 2022

^[9] Home office, ‘Irregular Migration to the UK, Year Ending September 2022’ (Official Statistics, 24 November 2022) < https://www.gov.uk/government/statistics/irregular-migration-to-the-uk-year-ending-september-2022/irregular-migration-to-the-uk-year-ending-september-2022 > accessed 18 December 2022

^[10] BBC, ‘How many migrants cross the English Channel in small boats?’ (14 December 2022) < https://www.bbc.com/news/explainers-53734793 > accessed 18 December 2022

^[11] The Guardian, ‘A timeline of migrant Channel crossing deaths since 2019’ (14 December 2022) < https://www.theguardian.com/uk-news/2022/dec/14/a-timeline-of-migrant-channel-crossing-deaths-since-2019 > accessed 18 December 2022

^[12] Steven MacKenzie, ‘One Day in Calais’ The Big Issue (14 December 2022, no. 1539) 22-27

^[13] This was before the High Court’s decision of 19 December 2022, ruling that the plan to send migrants to Rwanda did not contravene the UN Refugee Convention or other laws on human rights.

^[14] It should also be noted that UN conventions apply to the treatment of refugees and the right to asylum.

Picture credit: A small boat carrying a group of migrants across the Channel in the direction of Dover, Kent. PA Media.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Liberty Protection Safeguards: Upholding Human Rights for the Mentally Incapacitated

Candacé Manske reflects on the current rights of incapacitated individuals under the Human Rights Act and whether Liberty Protection Safeguards will positively or detrimentally impact this area of the law.

In 2009 the Deprivation of Liberty Safeguards (DoLS) formed a solution with the aim to protect the rights of incapacitated individuals. These procedures were to form a solution which would safeguard individual when a deprivation of liberty is an unavoidable element of a best interests care plan.

However, criticisms have been raised since the DoLS have been made, notably during the Cheshire West case in 2014. As a result, and following a review of the DoLS scheme performed by the Law Commission, Liberty Protection Safeguards (LPS) are due to replace the DoLS in the near future.

The Cheshire West Case

The right to liberty and security is protected by Article 5 of the Human Rights Act 1998, and this includes within the scope of the article those who are detained under mental health laws. 

At the heart of the Cheshire West case, an individual known as ‘P’ was the subject of a legal argument which aimed to more define ‘deprivation of liberty’ and the ways in which safeguards should be put in place to protect incapacitated adults Diagnosed with multiple conditions and unable to make decisions about his own welfare, P lived with his mother. Social services became aware of this situation a dispute arose which questioned if moving P into a care home was an act depriving P of his liberty and if this needed court authorisation.

In the case of ‘P’ a two-question test was referred to. This test determined if a person was deprived, or not, of their liberty. These two questions being:

1. Is the person subject to continuous supervision and control?
2. Is the person free to leave? (It should be noted that this does not mean, ‘Does the person want to leave’ but rather how to deal with them if they did want to leave.

Each case affected by a potential deprivation of liberty must be considered individually, but further questions were added to the ‘acid test’, which evoked subjects such as the use of medication to control behaviour, physical restraint and isolation of the person, objections from family or others to restrictions and restraints, and unstable placements of individuals. Furthermore, possible challenges to restrictions as aforementioned were evoked following this case, such as those which may occur in the Court of Protection.

In relation to human rights, it’s important to underline the fact that even with its complexity, the DoLS did have as objective to maintain the rights of those who were unable to make their own decisions.  The transition towards the Liberty Protection Safeguards is meant to further reinforce this concept, as well as make it easier for family and friends to be involved in the care of the person who is incapacitated.

In the original proceedings of the Cheshire West case, Mr Justice Baker based his reasons on guidance within another case (P and Q v Surry County Council [2011] EWCA Civ 190), outlining the objective elements of a deprivation of liberty. It was therefore ruled by Mr Justice Baker that P was indeed deprived of his liberty and should be the subject of reviews made by the Court of Protection.  Appealed by the local authorities of Cheshire West and Chester Council, this case then moved to the Court of Appeal. It was then ruled that P was not deprived of his liberty, and it was necessary to consider the reason why P had been placed where he was, and to then compare the “normality” of his situation, this being linked to the guidance provided under the same case of P and Q v Surry County Council.

The case was yet again appealed by the Claimant and brought to the Supreme Court in 2014. The main argument being the fact that P was indeed not free to leave his care home, and thus deprived of his liberty.  The reasons argued by the party representing P evoked the fact that the reason P was placed in the care home, nor the “normality” of the placement were not relevant to the case.

P’s case had significant implications in the field of health and social care, since it was hence defined that anyone meeting a definition for mentally incapacitated, will be deemed deprived of their liberty.

What will change with the Liberty Protection Safeguards?

A main objective of the change towards the Liberty Protection Safeguards includes proposed changes to include assessing capacity, the role of the Court of Protection, and interference by the Mental Health Act 1983 and the Mental Capacities Act 2005. Furthermore, the definition of what exactly is a deprivation of liberty and what is the process authorising this deprivation of liberty is further examined. Compliance with the law will be even more ensured, as will improved care and treatment, including people aged 16 and 17.

By better integrating the criteria for applying to the LPS scheme, it is intended that LPS will provide enhanced outcomes for persons deprived of their liberty, as well as their family and unpaid carers. Moreover, both Articles 5 and 8 of the Human Rights Act 1983 will be upheld more firmly by centralising the affected person in the decision-making process. 

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Sources

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19

Re v MIG and MEG [2010] EWHC 785 (Fam)

‘What are Liberty Protection Safeguards?’ (Social Care Institute for Excellence, October 2022) https://www.scie.org.uk/mca/lps/latest#:~:text=LPS%20will%20be%20about%20safeguarding,accommodation%20and%20their%20own%20homes accessed 20 November 2022

‘Deprivation of Liberty Safeguards (DoLS) at a glance’ (Social Care Institute for Excellence, May 2015, November 2020, October 2022). https://www.scie.org.uk/mca/dols/at-a-glance accessed 20 November 2022

Photo Credit: Court sketch by Isobel Williams.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’