Weekly Human Rights News: 03-02-23
This week’s news includes our training with carers and a European Court on Human Rights judgment on applying for a “neutral” birth certificate.
We talked to carers in Scotland about human rights advocacy
We delivered an online session to Carers Link Easy Dunbartonshire to increase staff knowledge on human rights and empower carers to know how to advocate for themselves and the people they care for using human rights. We also wanted staff to have the confidence to encourage the people they care for to advocate for themselves.
After just one session, staff rated their knowledge of human rights law and confidence using human rights as 3.5/5 – versus just 2/5 beforehand. 87.5% of participants said they will challenge public body decisions that do not respect the human rights of the people they care for.
One participant said, “knowledge is power and I learned so much as this session that I will not hesitate to use if the situation arises. I would definitely recommend the session.”
We continued our training programme with staff in eating disorder wards
As part of an ongoing programme with Tees, Esk and Wear Valleys NHS Foundation Trust, we talked to staff within eating disorder services about human rights in practice. Senior Human Rights Officer Katrin and Human Rights Officer Phoebe covered key rights such as the Article 3 right to be free from inhuman or degrading treatment and the Article 8 right to private and family life and staff considered how these apply to the people they work with and practices such as restraint and enforced medication.
News from Elsewhere
The European Court of Human Rights said that having no alternative to “male” or “female” on a birth certificate does not breach human rights
The Court states Y is a French citizen and is intersex. French law requires babies be registered as either “male” or “female” at birth, so Y’s birth certificate says “male”. They identify as non-binary and applied to change the certificate to say “neutral” but the French court refused, saying this would have “far-reaching consequences for the rules of French law” and that recognising another gender category was a matter for Parliament rather than courts. Y brought a case to the European Court of Human Rights (ECtHR), saying this was a breach of their Article 8 right to private life, but the ECtHR agreed with the French courts and also said that because there Is no European consensus in this area, it was appropriate to let individual countries decide how to address the issue – known as the “margin of appreciation”.
The ECtHR did, however, reject an argument by the French courts that Y’s Article 8 right was not disproportionately interfered with because he was perceived by others as having the appearance and social behaviour of a male in correspondence with his birth certificate. The ECtHR said, “As an element of private life, an individual’s identity could not be reduced to the appearance that this person was perceived as having by other persons.”
Source: European Court of Human Rights
The High Court said restricting use of phones is not a deprivation of liberty
In June 2022, 16-year-old P was living in a care placement under an interim care order that authorised restrictions of her right to liberty. She had a history of severe self-harm but had not been deemed to meet the criteria for admission to a young people’s mental health hospital. The initial order did not reference P’s phone, tablet, laptop or access to social media, but a Children’s Needs Assessment later noted that telephone and social media contact could be “negative as well as positive” with her peers encouraging her to be aggressive and concerns about whether P was sharing her address or in contact with people who posed a risk to her. The Local Authority requested that P not have her phone from 10pm to 8am and for her phone to only be charged by staff. They also requested that her calls to friends and peers be recorded and shared with her Social Worker; that staff put apps on her phone to monitor her online activity; that WiFi be turned off to restrict her social media use when concerns arise; that P’s phone be taken away when behaviours escalate; that staff not provide top-ups; that P not be allowed to use the house phone; and that P not be allowed to take her phone to the bathroom. An updated order was issued in October 2022 authorising these restrictions.
In January 2023, P moved to a new placement and the Local Authority applied to have the same restrictions in place. P’s Social Worker did not think P had capacity to consent to the restrictions. Both the Local Authority and the Social Worker said that depriving P of her phone constitutes a deprivation of her liberty because her phone is “very much an avenue to the outside world” and that “liberty for a young person today is very different to” what it meant when the European Convention on Human Rights was first written.
The judge in the case, however, said “Whilst I recognise that the Convention is a living instrument, which must be interpreted in the light of present-day conditions… the [European Court on Human Rights] have repeatedly made clear that [Article 5] is concerned with individual liberty in its classic sense of the physical liberty of the person”. As restricting phone use does not impact P’s physical movement, it is not a deprivation of liberty.
This meant the Court could not authorise restrictions on P’s phone and social media use through a Deprivation of Liberty order. However, the Court could authorise the Local Authority to impose these restrictions under the Children Act, which gives the Local Authority shared parental responsibility over P. This means that the restrictions on P’s phone and social media use are in place – just not under a Deprivation of Liberty order.
High Court judgments are not binding on other cases, but they can be persuasive. This means that in future cases, people could argue that Deprivation of Liberty orders should not be used to restrict people’s phone or internet use.
The Investigatory Powers Tribunal found MI5 and the Home Office breached the right to private life
Liberty and Privacy International brought a case against MI5 and the Home Office arguing that the way personal data of millions of people was being handled breached the Article 8 right to private life. They said there were not sufficient safeguards in place for the storage, use and destruction of this data. The Home Office issued warrants related to this data despite knowing the safeguards were not in place, so these warrants were not lawful. On Monday 30 January 2023, the Investigatory Powers Tribunal released its judgment finding that MI5 and the Home Office had breached Article 8.
The House of Lords voted down parts of the Public Order Bill
The Lords voted against a line in the proposed law, saying that protesting about “an issue of current debate” is not a reasonable excuse for offences like tunnelling, obstructing transport or highways, causing “public nuisance” or “locking on” (i.e. attaching themselves or someone or something else to a person, object or land in public in a way that does and is intended to cause serious disruption to two or more people or an organisation).
They also voted to introduce a definition of “serious disruption” including where someone causes “significant harm”. Previous examples of serious disruption had described a hinderance that is “more than minor” but the Lords questioned whether having such a low threshold before a protestor commits a crime could be compatible with the Article 10 right to freedom of expression and the Article 11 right to freedom of assembly.
During the Lords’ debate, activists from Extinction Rebellion disrupted a speech before being stopped by staff.
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