European Civic Forum update to CIVICUS Monitor, published on 04/02/2022
In September 2021, the UK was added to the CIVICUS Monitor Watchlist due to a rapid decline in civic freedoms. Major concerns have been raised on the Policing, Crime, Sentencing and Courts Bill which proposes to give police more power to crack down on protests and will have serious repercussions for minority groups, including Gypsy and Traveller communities, Black people and people of colour. Several other legislative developments, such as proposed changes to the Human Rights Act, the New Elections Bill and the Judicial Review and Courts Bill, threaten fundamental rights and democratic checks and balances, which aim to hold the government accountable. This reporting period was marked by a victory regarding the Policing bill, after the House of Lords voted down several problematic proposals. However, several other concerning parts of the bill, which severely threaten the right to protest, remain. Additionally, the government opened consultations to reform the Human Rights Act, which civil society says will diminish access to justice.
Additionally, during this reporting period reports emerged detailing how Prime Minister Boris Johnson and other senior government officials held several “boozy” parties during the COVID-19 lockdown, when strict COVID-19 regulations, including social distancing, were enforced. Following this, a report by a senior civil servant detailed how the gatherings “represent a serious failure to observe not just the high standards expected of those working at the heart of government but also of the standards expected of the entire British population at the time”. The Metropolitan police are currently investigating 12 illegal gatherings by the government for alleged breach of COVID-19 regulations. These revelations have led to tensions within the governing party, with calls for the PM to step down or face a vote of no confidence.
Related to this, in late January 2022, senior backbench Tory MP William Wragg alleged in parliament that Prime Minister Johnson’s team had been “threatening and blackmailing” his colleagues into backing the PM if a vote of no confidence was tabled. As reported by Open Democracy, conservative whips warned MPs that their constituencies would lose government funds if they were “disloyal” to Johnson, said Wragg, the vice-chair of the Conservatives’ 1922 Committee. Johnson claimed he has “seen no evidence” that this is happening.
Reform of Human Rights Act
As reported previously, the government launched an independent review into the1998 Human Rights Act (HRA), which was met with strong opposition by civil society.
Following this, the government simultaneously published its Independent Review of the act (IRHRA) while opening consultations into proposals to overhaul the act, which runs until 8th March 2022. However, the reforms proposed contain several worrying proposals.
Liberty UK called the reforms to the act a “blatant, unashamed power grab.”
“Through using the Human Rights Act, Liberty has supported LGBT military veterans to get their medals back after they were stripped away from them because of their sexuality. We’ve helped unmarried women rightfully receive their widow’s pension after the death of their partners where the existing law stopped them. The Human Rights Act has changed many lives for the better. It must be protected from political interference intent on making state power unaccountable.”
Public Law Project pointed out five main concerns over access to justice and state accountability raised by the newly published Independent Review (IRHRA) and government consultation on the HRA:
- Reform section 2 of the HRA: The government has proposed several amendments to the HRA to reduce the expectation of the UK courts to follow the case law of the European Court of Human Rights in Strasbourg. This may result in domestic courts interpreting rights more restrictively, which would lead to more people approaching the ECHR to seek redress. However, this channel would be costly and may not be accessible to many people, thus limiting access to justice. If the UK fails to uphold Convention rights to the required standard, it may be in breach of international obligations.
- Introducing a ‘permission stage’: The government has proposed a new permission stage before a human rights claim can be heard in court. This would result in claimants being responsible for showing that their case has merit. The proposals are unclear on how this would work in practice. However, this approach would result in affecting access to justice and particularly disproportionally affect vulnerable groups.
- Reforming section 3 HRA (interpreting legislation to be compatible with the Convention): The government has proposed repealing section 3, as it has led to a move “too far towards judicial amendment of legislation which can contradict, or be otherwise incompatible with, the express will of Parliament” (para 233). This would make it more difficult for courts to interpret legislation in agreement with Convention rights, because the section 3 duty “goes further than either the presumption that parliament will not legislate in breach of international law obligations, or the ‘Simms’ legality principle, which ensures that fundamental rights cannot be overridden by general or ambiguous words”. The repeal of this section could result in more people approaching Strasbourg and would again make it challenging for people to access justice and seek redress.
- Reforming section 4 HRA (declarations of incompatibility of secondary legislation): The government consultation document alludes to concerns around the courts’ powers to quash secondary legislation as a remedy in human rights challenges (paras 249-252). One of the proposals is to expand the use of suspended and prospective only quashing orders (Clause 1 of the Judicial Review and Courts Bill makes provision for this which would give the courts power to delay the effect of an order until a future date, allowing an unlawful decision, policy or practice to be treated as if it were still valid until that date. Secondly, it would create the presumption that a quashing order would not have any retrospective effect, shielding the government from accountability for subjecting people to unlawful policy or practices.)
- Public interest concerns and foreign national offenders: The government wants to “provide more guidance to the courts on how to balance qualified and limited rights”, to ensure that the public interests and the rights of others are given “due consideration” (paras 289-291).It also suggests that the courts “must give great weight to Parliament’s view of what is necessary in a democratic society” (10, Appendix 2). However, it is unclear how the courts will ascertain Parliament’s ‘view’.
Nationality and Borders Bill
On 27th January 2022, the Nationality and Borders Bill commenced at the Committee Stage in the House of Lords and continued into the next week. There are a series of amendments led by Conservative backbenchers. In March 2022, amendments are expected to go back to the House of Commons.
The main concerns raised by civil society, as already reported in previous updates, include: stripping citizenship, offshore processing of asylum seekers, the right of asylum seekers to work while their claim is being processed and a resettlement target for what the government describes as “safe and legal routes”.
Judicial Review and Courts Bill
The Judicial Review and Courts Bill has reached report stage in the House of Commons and, according to CSOs, is likely to pass through to the House of Lords without substantial amendment. This Bill will make it harder for individuals to hold public authorities to account when errors are made.
The Elections Bill passed through the House of Commons and will next go to the House of Lords. This Bill will introduce Voter ID’s, impacting on thousands of people’s right to vote (other issues and areas of concern have been flagged in previous updates).
Newly elected chair of Charity Commission resigns
After a long and controversial appointment procedure, newly elected Chair of the Charity Commission Martin Thomas resigned in December 2021, before taking up the role, due to claims of inappropriate conduct while he was chair of Women for Women International between 2018 and 2021. During this period, three complaints were made against Thomas, one of which involved Thomas sending an unsolicited and inappropriate photograph to a female colleague.
On 16th December 2021, the Good Law Project wrote to Nadine Dorries, the Secretary of State for Digital, Culture, Media and Sport, calling for the withdrawal of Thomas’s nomination to the role of Chair of the Charity Commission due to concerns about his suitability for the position, and raising questions about connections between Thomas and Prime Minister Boris Johnson. On 17th December 2021, the Department for Digital, Culture, Media and Sport confirmed that Thomas had resigned from the position, which he was not due to take up until 27th December 2021.
On 11th January 2022, Commissioner for Public Appointments William Shawcross and three senior officials appeared before the Digital, Culture, Media and Sport Committee to face questions about the recruitment process. As reported previously, at the end of October 2021, the Good Law Project launched a judicial review on the matter.
These developments led to CSOs raising concerns over the overall appointment process. NCVO said:
“That this did not come to light through the recruitment process raises serious questions about the due diligence undertaken, particularly in light of a serious incident report having been submitted to the Commission.”
A victory over Policing bill but other threats remain
On 17th January 2022, the British government suffered a series of defeats in the House of Lords on amendments to Part 3 of the Police, Crime, Sentencing and Courts Bill (so-called ‘Police Bill’ on public order). It lost nearly every one of the anti-protest measures it attempted to add to the Bill with late amendments tabled in November 2021, including the offence of locking on or being equipped to lock on; interfering with major transport networks or key national infrastructure; protest-related stop and search and Serious Disruption Prevention Orders (known as ‘Protest Banning Orders’), These measures can’t be resurrected by MPs at parliamentary ‘ping-pong’ (namely, a phenomenon in the Parliament of the United Kingdom, in which a bill appears to rapidly bounce back and forth between the two chambers), since they were introduced when the bill was in the House of Lords stage.
The government also lost votes on amendments to remove or weaken anti-protest measures already in the Bill, such as some police powers to impose noise-based restrictions on protest or the ability for the police to place restrictions on one person protests. However, these amendments must now be confirmed by MPs in the House of Commons. But Secretary of State for Justice Dominic Raab made it clear that the government would bring back provisions on noisy protests.
Also, some very significant elements of Part 3 of the Police Bill remain untouched and there is no further opportunity to amend them. For example, it will soon be possible for anyone to receive a criminal conviction for breaching a police condition they had no knowledge of being placed on a protest. Additionally, causing ‘public nuisance’ becomes a statutory offence with a maximum sentence of 10 years.
Finally, it’s important to note that earlier, at the report stage before 25th December 2021, the measures in Part 4 of the Bill to criminalise trespass tragically passed without amendments, following a drawn vote. This means these measures – which are a direct attack on the nomadic way of life of Roma and Traveller communities, giving the police the power to seize their homes – are unchanged and will further criminalise marginalised and persecuted groups.
On 18th January 2022, the Police Bill Alliance, made up of CSOs including Liberty, Bond, Quakers in Britain, Friends of the Earth, and Friends, Families and Travellers, issued an initial response following the vote in the House of Lords. Among many arguments, the CSOs’ response states that, overall:
“This Bill is just part of a suite of legislation going through Parliament which attacks our fundamental rights and undermines democracy in the UK. Be it stripping people of their British citizenship without warning, or allowing Ministers to throw out Court decisions they disagree with – placing politics above the law, we are now entering dangerous waters when it comes to Britain’s civic freedoms and democracy.”
Ahead of the vote in the House of Lords, #KilltheBill protests were staged in several cities. In London, protesters carried a coffin with the sign “UK Democracy – murdered by the Tories”.
“Heavy-handed treatment” on 18 environmental protesters in 2021
According to The Guardian, ten members of the environmental group Insulate Britain spent Winter holidays during 2021 serving prison sentences for contempt of court due to breaching injunctions which banned their roadblock protests (see previous update). The group is demanding proper insulation of the UK’s housing stock. Seven more received sentences.
According to Extinction Rebellion, at least eight other environmental activists have served prison sentences in 2021 for contempt of court actions, including livestreaming from court and glueing themselves to the dock. This brings the total number of environmental rights protesters arrested in 2021 to at least 18.
Environmental campaigners told the Guardian that they fear that the “heavy-handed treatment” faced by climate defenders is part of ongoing attempts by the government to repress the right to protest. They criticised the Policing Bill as “a dangerous power grab”.
‘Colston Four’ acquittal appealed
The Attorney General for England and Wales, Suella Braverman has been accused of “politically-driven meddling” after she announced that she could refer the acquittal of the so-called ‘Colston Four’ to the court of appeal – after an outcry from conservative MPs following the jury’s acquittal of the four Black Lives Matter protesters who toppled a statue of slave trader Edward Colston in Bristol.
According to The Guardian, the four protesters were cleared of criminal damage in January 2022, after admitting that they helped topple the statue of Colston – a member of the Royal African Company, which transported about 80,000 men, women and children from Africa to the Americas – in June 2020 but argued that its existence constituted a public offence or a hate crime.
When someone has been acquitted of a crime, the attorney general has the power to seek the opinion of the court of appeal on a point of law, under section 36 of the Criminal Justice Act (CJA) 1972. But Braverman did not specify the point of law she was concerned about.
BBC hit with licence fee decision amidst reporting on PM’s lockdown parties
On 17th January 2022, U.K Culture Secretary Nadine Dorries announced that funding to the British Broadcasting Corporation (BBC) would be frozen for two years, with the licence fee to be abolished by 2027. The decision will result in the BBC having to make major cuts to its programme budgets over the next few years. Additionally, it will have to renegotiate a new funding model when the deal expires, which could include a subscription service, part-privatisation, or direct government – which raises concerns of editorial independence.
The licence fee is key to the BBC’s relationship with the public and plays a crucial role in ensuring its editorial and financial independence from government.
The broadcaster has faced repeated criticism from the government, who has claimed that it is “biased” against the governing party.
The funding decision sparked criticism from journalists, politicians and media organisations who stated that it comes in retaliation for the BBC’s news coverage about the Prime Minister’s lockdown party scandal (see above).