HUMAN RIGHTS LAW JOURNAL 2020 V O L U M E N I N E BPP Pro Bono Centre BPP Law School BPP University London WC1R 4NY United Kingdom Copyright © 2020 BPP Pro Bono Centre No part of this publication may be reproduced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior, express written permission of the BPP Pro Bono Centre and the author, to whom all requests to reproduce copyright material should be directed in writing. The opinions advanced by the contributors should not necessarily be considered reflective of those held by the Editors of the BPP Human Rights Journal, BPP Pro Bono Centre and BPP University. Whilst every effort has been made to ensure that the information contained is correct in this journal, the Editors, BPP Pro Bono Centre and BPP University do not accept any responsibility for any errors or omissions, or for any resulting consequences. This volume should be cited (2020) B.P.P.H.R.J. EDITORIAL TEAM Editors Alethea Redfern, BPTC, London Lucasta Bath, LLM, London Ryan Cooper, GDL, London Editorial Board Lucy Wildig, Solicitor and Joint Head of Pro Bono, BPP PRO BONO CENTRE Jessica Duxbury, Pro Bono Streetlaw Manager, BPP PRO BONO CENTRE CONTENTS FOREWORD ................................................................. i Baroness Helena Kennedy QC EDITORS’ NOTE .......................................................... v Alethea Redfern, Lucasta Bath and Ryan Cooper Articles AN END TO QUALIFIED IMMUNITY? .......................... 8 Kahill Sarronwala (LPC, London) CLIMATE CHANGE LITIGATION AND THE ROLE OF THE JUDICIARY: A CHALLENGE TO THE SEPARATION OF POWERS? .................................... 21 Alexander Westin Hardy (LLM, London) “[T]O HOLD IT FULLY ACCOUNTABLE UNDER INTERNATIONAL LAW”: THE DEFENCE OF HUMAN RIGHTS BY THIRD-STATES IN THE INTERNATIONAL COURT OF JUSTICE. ................................................ 33 Adam Weston (GDL, London) THE JURISDICTION PROBLEM IN BUSINESS AND HUMAN RIGHTS ADVANCES .................................... 48 Maria Shepard (GDL, London) TOWARDS AN INTERNATIONAL CONSTITUTIONAL LAW: REGIONAL TRADE AGREEMENTS AS A VEHICLE FOR HUMAN RIGHTS ................................ 57 Omar Mohamed (LLM, London) A TALE OF TWO SYSTEMS: EXTRADITION AND SECURITY IN HONG KONG ...................................... 71 Georgia-Mae Chung (BTC, Birmingham) WHAT DOES THE FUTURE HOLD FOR ARTICLE 3 ECHR IN CASES INVOLVING THE DEPORTATION OF ILL PERSONS? .......................................................... 86 Miranda Sadler (GDL, Bristol) IMMIGRATION DETENTION: IS NOW THE TIME TO LOOK TO ALTERNATIVES? ...................................... 96 Kerrina Gray (GDL, London) RAPE MYTHS IN THE UK CRIMINAL JUSTICE SYSTEM ................................................................... 111 Isabella De Re (GDL, London) Case Commentary TO CATCH A PREDATOR: PAEDOPHILE HUNTERS AND ARTICLE 8 ....................................................... 127 Gregory Turpin (LLM, Leeds) ELGIZOULI V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] UKSC 10: CASE SUMMARY AND ANALYSIS ..................................... 133 Oskar Butcher (GDL, London) FOREWORD BARONESS HELENA KENNEDY QC A pandemic presents huge challenges to societies - the risk of a cataclysmic death toll means that governments have to take exceptional steps. Few people of sound mind disagree. It is why virtually every nation in the world has passed Emergency Legislation to limit our freedom of assembly, curtail freedom of association, create powers to enforce rules on social distancing and quarantine and even develop apps which involve locational surveillance. The key part of this deal is that any liberties taken should not be out of all proportion to social need and the powers should be time limited and circumscribed. The problem is that this contagion coincides with another contagion – the rise of populism and authoritarianism. Under the flag of the pandemic, or using it as a distraction, many of the world’s new style “illiberal democrats” have seized the moment. The escalation of human rights abuse is truly i alarming. Horrifying, in fact. This year has seen the implementation of the National Security Law in Hong Kong, the rise of extreme religious conservatism and fascism in Hungary and Poland, crisis in Belarus as Lukashenko holds on to power and the continued assault against the legal profession and journalists worldwide. Across the Middle East and North Africa, in Pakistan and India, through Europe and the United States there has been an explosion of reported abuse and escalating violence against women behind closed doors. Police and military forces are using the virus as a pretext to round up dissidents. In the Philippines, President Duterte has given the instruction to shoot dead anyone breaking the lockdown rules. Throughout India the opportunity to turn on Muslims has been seized. Thousands of Uiyghur Muslims in China are locked up in concentration camps, with almost no accountability for the Chinese authorities. Even in the United Kingdom, the UK Government intends to break international law with the Internal Market Bill. A disregard for the rule of law has become a global issue. It would be all too easy to lay to one side the stealthy erosion of the Rule of Law and to think these abuses of human rights are not our problem. But this is another kind of contagion and it seeps into people’s hearts and minds and eventually it feeds on the body politic. To be silent and turn a blind eye is to be complicit. ii This is why I am grateful to be able to provide the foreword to this year’s BPP Human Rights Journal and introduce a series of articles by young lawyers with a great concern for the world’s human rights issues. Ruth Bader Ginsburg, whose recent death is a great source of sadness to us all, once said when asked about “post-truth” politics, that “when the pendulum swings too far in one direction it will go back”. The reason we have faith that the pendulum will swing back, and once again there will be global respect for the rule of law and human rights, is because of the young lawyers like those featured in this journal who are shocked by what they see in the world and become determined to bring about change. The breadth of issues covered in this issue speaks to the many ills seen round the world, from the increase in China’s control over Hong Kong to the additional plight faced by those in immigration detention throughout the crisis, and the ways in which the law must step in to correct such ills, such as the defence of Human Rights by Third States in the International Court of Justice. iii iv EDITORS’ NOTE It gives us great pleasure to present BPP Law School’s 2020 Human Rights Law Journal. Now in its eighth edition, the Journal was founded in 2008 by the Human Rights Unit, a student-led society within BPP University which organises events raising awareness of human rights around the world, as well as helping students become involved with related projects and initiatives. The Journal went out of print after 2017. Although 2020 has brought unprecedented disruption and difficulties, it also gave our editorial team a unique and unexpected opportunity to bring it back. Previous editions emphasised that human rights issues do not stop at borders. They explored domestic troubles, from Brexit to the devastating effects of legal aid cuts, and brought readers closer to understanding international problems such as Australia’s immigration system, torture in the United States, and airstrikes in Afghanistan. Human rights issues do not stop for pandemics, either. Amid an onslaught of COVID-19 coverage, other major stories have at times been overlooked. The articles in this edition – divided into domestic v and international topics for the first time to highlight the Journal’s global scope – address this oversight. On the international plane, Georgia-Mae Chung and Kahill Sarronwala go behind the protest lines to explain how Chinese extradition legislation and the doctrine of qualified immunity triggered unrest in Hong Kong and the United States. Other commentators assess possible mechanisms for enforcing human rights obligations. Alexander Westin Hardy considers the rise of climate change litigation, Adam Weston takes a close look at third- state intervention on human rights issues at the International Court of Justice, and Omar Mohamed examines the possibilities of a new generation of Regional Trade Agreements. In a similar vein, Maria Shepherd suggests that direct extra-territorial obligations might be help hold international businesses to account. Turning towards the United Kingdom and the European Union, Miranda Sadler questions what the future holds for cases involving the deportation of seriously ill persons, while Kerrina Gray asks examines the flaws of immigration detention exposed by the COVID-19 pandemic”. In light of concerning prosecution figures released by the Crown Prosecution Service earlier this year, Isabella Da Re surveys the ongoing impact of a selection of rape myths on our criminal justice system. vi Two contributors offer summaries of recent cases. Oscar Butcher overviews the first Supreme Court judgment on the Data Protection Act, notable for its consideration of the legality of handing over information to countries which use the death penalty. Gregory Turpin outlines another case in which the Supreme Court considered whether evidence gathered by online “paedophile hunters” can be used at trial. The pandemic exemplifies