Why Civil Claims are a Necessary Part of the Arsenal to Address Military Excesses

Carla Ferstman and Noora Arajärvi, University of Essex, published a report which assesses the UK Overseas Operations (Service Personnel and Veterans) Bill, which makes provision about legal proceedings and consideration of derogation from the European Convention on Human Rights in connection with operations of the armed forces outside the British Islands.

The Bill was introduced in Parliament on 4 November 2020 by Mr Ben Wallace, Secretary of State for Defence of the United Kingdom, and sets out a series of measures intended to make it more difficult to prosecute current and former Service personnel for conduct occurring more than five years ago when operating overseas.

The Bill also restricts judicial discretion to allow civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations by requiring the court to consider additional factors (on top of those that already exist in law) when deciding whether to allow a claim outside the set limitation periods.

The proposed legislation has provoked considerable debate in both Houses of Parliament, amongst former service personnel, lawyers, academics and civil society. Much of the discussion surrounding the Bill has also focused on the extent to which the proposed changes to how decisions about potential prosecutions are taken will negatively impact upon the capacity for the UK to implement its obligations under international human rights law and the International Criminal Court statute.

The focus of this report

The report focuses on civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations.

The Overseas Operations (Service Personnel and Veterans) Bill sets out several rationales for the introduction of the reforms to civil and human rights claims, and the authors of the report saw value in scrutinising these justifications in some depth, given the significance of the proposed reforms and the limited attention they have received to date.

As the report explains, the civil claim longstop would have the effect of shielding the Ministry of Defence from public scrutiny and legal accountability and would take away crucial means by which to ensure transparency and to promote institutional lessons learned.

To make this assessment, Carla Ferstman and Noora Arajärvi carried out a review of civil and human rights judgments pertaining to overseas operations, issued within the last twenty years. These have mainly concerned claims against the Ministry of Defence, though their sample has also included claims involving overseas engagements by the security services and other parts of government to the extent relevant.

The report argues:

  • Considering the checks and balances within the UK legal system and how it operates as a whole, impeding access to civil and human rights claims ignores the vital role such claims play in ensuring that criminal investigations and prosecutions and related accountability processes are not shut down prematurely. A crucial means of oversight will be lost.
  • Victims’ access to reparation is an important value worthy of protection and a fundamental and obligatory aspect of UK human rights obligations. This is especially the case for claims involving wrongful death, torture, and ill-treatment; and
  • The introduction of limitation periods for civil and human rights claims without a possibility for judges to be able to use their discretion to extend them where the exigencies of the circumstances so require, is a significant and unjustifiable limitation of claimants’ access to reparation.

Carla Ferstman‘s and Noora Arajärvi’s research was facilitated by the University of Essex’s ESRC Impact Acceleration Account.

A copy of their report can be accessed here.

UK Radio Station Sanctioned by Ofcom over Coronavirus Conspiracy Theories

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 7 December 2020, Ofcom, the UK’s communications regulator, found that The Family Programme, a live radio broadcast, featured potentially harmful statements about the COVID-19 pandemic without adequate protection for listeners.

The regulator currently prioritises cases linked to the coronavirus where programmes may have helped spread misinformation or included misleading material about the illness and public policy in relation to it. The Family Programme is broadcast every Sunday on New Style Radio 98.7 FM, which is a community radio station providing a service for Afro-Caribbean communities in Birmingham. The licensee for this service is the Afro-Caribbean Millennium Centre (ACMC).

During the programme, a number of “highly contentious, unevidenced conspiracy theories about the coronavirus” were set out. In its ruling, Ofcom highlighted controversial allegations that wearing face masks can “cause serious neurological and respiratory damage”, as well as suggestions that Bill Gates intended to reduce the world population, and mark and control 7 billion humans through vaccination. At the time of the broadcast, human and clinical trials were ongoing around the world to develop and deploy an effective vaccine, which is recognised by the scientific and medical community (and endorsed by the World Health Organisation) as the key to controlling and potentially defeating the COVID-19 pandemic. Ofcom was particularly concerned that such unsubstantiated claims would cause harm to listeners by undermining confidence in any future roll-out of a vaccination programme.

The presenter, Simon Solomon, referred to the crisis as an orchestrated “plan-demic” linked to the roll-out of 5G, and repeated without challenge throughout the programme the suggestion that “government and WHO policies are deliberately aimed at killing people.” Much of the discussion centred around a document written and a video presented by conspiracy theorist Claire Edwards, both of which have been discredited by fact-checking initiatives or trustworthy media organisations. Ofcom expressed serious concerns that such allegations could lead listeners to disregard public authorities’ advice and the social distancing measures intended to protect public health (especially at a time when coronavirus cases were rising and the government had just announced a second national lockdown in England).

The regulator rejected the presenter’s arguments that he had not endorsed Claire Edwards’ claims. In its view, the presenter had increased the potential for harm by lending the contents of those claims further credibility and adding greater weight: “listeners would have been left in no doubt that the presenter supported the contents of Ms. Edwards’ documents.” ACMC accepted the regulator’s findings and mentioned in its response that, as Mr. Solomon was a “very experienced” presenter, they “could not have possibly envisaged” that he would present a programme containing potentially harmful material. The licensee also stated that The Family Programme broadcast at issue could be seen as an “aberration” and believed that it constituted an “exception” to their normal high standards of professionalism.

In considering whether ACMC had provided listeners with “adequate protection” from this potentially harmful material (as Rule 2.1 of the Ofcom Broadcasting Code requires), Ofcom ruled that the disclaimer given by the presenter at the beginning of the programme had the potential to compound the potential harm to members of the public: “Rather than provide a warning about the unsubstantiated and controversial nature of the conspiracy theories put forward in the programme, in our view [the disclaimer] denigrated listeners who did not subscribe to them and cast doubt on the veracity of mainstream and credible sources of information about the coronavirus pandemic.” Moreover, according to Ofcom, Mr. Solomon had presented highly contentious claims as unequivocal facts and uncritically guided listeners to use the programme as the basis for their research.

Ofcom considered the steps ACMC had taken to mitigate the potential for harm following the broadcast of the programme; these were the suspension of the programme and its presenter, as well as the broadcast of “a special programme” about the coronavirus, which was aired on 15 November 2020 at the same time as the original programme and which “comprehensively refuted all the conspiracy theories” included in the initial broadcast.

The regulator emphasised that broadcasting views which question official authorities on public health information is not in principle prohibited and acknowledged the presenter’s right to discuss contentious viewpoints. However, in doing so, broadcasters must ensure compliance with the Code. Despite the actions taken by the licensee, the regulator was of the opinion that there were not sufficient measures in place to ensure that listeners were protected from the inclusion of “potentially extremely harmful material” in this programme, which was broadcast for two hours “without sufficient warnings, context or challenge during a public health crisis.”

As a result, Ofcom found that New Style Radio had committed a serious breach of the Broadcasting Code and directed the station to broadcast a summary of its ruling. The regulator has yet to give a final verdict regarding a suitable sanction, which could determine whether Solomon shall continue on the station as a presenter.

This article originally appeared on the IRIS Merlin legal database and is reproduced here with permission and thanks.

The Voice of the Child: A Workshop on Private Family Law Proceedings Involving Sexual Abuse

Photo by Ben Wicks

By Jaime Lindsey, Liz Fisher-Frank, Jo Harwood and Gillian Francis, University of Essex, School of Law

On the afternoon of 25 March 2021, we hosted an online workshop by Zoom exploring the voice of the child in the context of the treatment of sexual abuse allegations in private family law disputes in England and Wales. The workshop brought together a fascinating mix of over 50 attendees including members of the judiciary, practitioners, academics, policy makers, organisations supporting survivors, and people with lived experience of abuse and the family courts.

The assessment of harm to children in private law cases has recently been the focus of an expert report commissioned by the Ministry of Justice, which provided the impetus for this project. Following the review, the treatment of sexual abuse allegations has been identified as an under-researched but major threat to the safety of children.

A key aim of the workshop was to respond to the need arising from the review to build an evidence base with key stakeholders in the field, something we hope to take forward following the event. This complex and difficult area of legal practice needs to be dealt with sensitively and we were delighted with the mix of attendees who respectfully and passionately engaged with the serious issues raised by the family courts’ current approach to the challenges that exist in these cases. We hope that following the event we will have the opportunity to continue our work with stakeholders to enhance the voice of the child in private family law cases.

The workshop followed a panel presentation and discussion format, held under the Chatham House rule to ensure confidentiality for attendees, given the sensitive nature of these issues. There were 10 presentations in total, including from survivors of child abuse and the family courts, a member of the judiciary, academics and practitioners in the field. Following each panel, attendees had the opportunity to ask questions and provide comments on issues raised.

Panels covered themes including:

  • amplifying the voice of the child;
  • the role of ‘parental alienation’;
  • support and training for professionals;
  • supporting children through court;
  • legal aid and associated access to justice issues;
  • the role of the family court in responding to abuse allegations and the challenges and possibilities in doing so.

A rich variety of issues were considered, including specific legal changes as well as wider cultural factors that arguably influence this area of practice.

We are grateful to all who attended and spoke at the event for making it such a supportive and insightful discussion, as well as for the generous funding provided by the ESRC Impact Acceleration Account. Working collaboratively, we held an event that was constructive and reform-oriented with the aim of furthering the conversation in this important but challenging area.

We were delighted to receive positive feedback from attendees, including from a survivor who said, ‘I really feel empowered’ following the workshop. Another said, ‘We all thought it was a fantastic event. It was brilliantly brought together and managed with such diversity of thought and experience … this really brought home the extent and complexity of some of the issues that need addressing in the family justice system’.

A full report of the event will be available soon, which will identify core themes, recommendations and next steps that we intend to pursue. If you would like to find out more about any aspect of this project or would like to be sent a copy of the report once it is available, please contact one of the organisers at the details listed below:

Jaime Lindsey: j.t.lindsey@essex.ac.uk

Jo Harwood: jh18437@essex.ac.uk

Gillian Francis: gf17473@essex.ac.uk

Delivering Energy and Climate Justice in Africa: Implications for Realizing the United Nations SDGs 7 and 13

Godswill Agbaitoro, PhD candidate, University of Essex

What do energy and climate justice mean and why do they matter for Africa? According to Climate just, a simple way to understand climate justice is to ensure that collectively and individually we can prepare for, respond to and recover from climate change impacts. This conception includes understanding the policies to mitigate or adapt to them by considering existing vulnerabilities, resources, and capabilities. Energy justice, on the other hand, means ensuring affordable, reliable, and clean energy access mainly for economic development. Putting these two concepts together translates into the realization of the United Nations Sustainable Development Goals 7 and 13. From a theoretical perspective, these Goals appear laudable but face very complex practical difficulties, especially for countries in the Global South. The truth is that from the perspective of countries in the Global South, there remains a contradiction in the quest to realize these two SDGs simultaneously through energy and climate justice.

Realizing the United Nations SDGs 7 and 13 in Africa

For African countries with significant energy access and security challenges, it is not clear how they are expected to pursue the realization of SDG 7 (energy justice) without compromising international obligations towards the realization of SDG 13 (climate justice). This blog post considers this conflict faced by African countries in the Global South and highlights the need to increase energy access through the development of fossil fuel-based energy sources that meet international obligations on climate change. The conclusions drawn are based on proposed strategies that could be utilized by African States in the Global South towards achieving energy and climate justice simultaneously.

Climate change has been described as the biggest threat to public health in this century. Some jurisdictions are more exposed to the direct impacts of climate change due to their locations. Within these jurisdictions, some people will be more vulnerable to the impacts, as they will be more sensitive to negative effects on their health or wellbeing or may have less capacity to respond. However, vulnerability is not inherent in particular groups – it is determined by a mix of social, economic, environmental, and cultural factors, as well as institutional practices. It is in light of the challenges posed by climate change that calls such as the ones from the Paris Agreement – COP15 have been made to limit global warming which is caused mainly by the release of greenhouse gas (GHGs) emissions into the atmosphere.  

Notwithstanding the above, there remains a challenge for African countries in the Global South – one that places countries in this region in a difficult position in their quest to address energy access and security problems in accordance with the energy goal of SDG 7 on the one hand, whilst having to meet their international obligations on climate change mitigation in accordance with the climate goal of SDG 13 on the other. This observation implies that individual countries have a responsibility to ensure that the pursuit of energy justice through the development of energy access is compatible with the pursuit of climate justice. The challenge here is that energy access problems vary between countries, in the sense that countries in the Global North that are arguably the biggest emitters of GHGs into the atmosphere do not experience the same level of energy access problems as those in the Global South. More specifically, countries in the Global South, particularly those dependent on fossil fuels for economic development, have a bigger challenge of harnessing the resources in a way that is not incompatible with their climate justice obligations irrespective of their huge energy access and security problems.

The question, therefore, is what are the viable means through which the two concepts of energy and climate justice could be achieved simultaneously by African countries in the Global South? For countries that depend on fossil fuels for economic development in particular, recent events happening in the global oil industry, such as the intended ban on the financing of fossil fuel projects by international financial institutions as a way to combat climate change, may have a significant impact on the economies of African countries. This is because Africa (especially the sub-Saharan region) has one of the poorest energy access rates in the world, together with climate change impacts that are becoming prevalent. For this reason, this blog post suggests strategic tools that could be utilized by developing countries in the Global South to achieve SDGs 7 and 13. 

Energy efficiency measures

In simple terms, energy efficiency means using less energy to perform an action – like switching on a light or heating a house. Interestingly, these actions have an impact on other energy end-users, as well as the environment. Energy efficiency remains an important strategy that could be utilized by African states to achieve energy and climate justice simultaneously. It is a potent tool that could be utilized to address inequalities at both ends by making energy bills more affordable, while also reducing the need for more energy production and consequently reducing associated pollution into the atmosphere. African states in the Global South can leverage the tangible benefits of energy efficiency measures toward achieving the energy and climate goals of the UN SDGs. An effective way to do this is to integrate energy efficiency measures into the sociological frames of energy and climate justice goals.

Diversification of energy options

At the heart of the energy access problems in Africa is also the failure of national governments to recognize the importance of diversification of energy options. The concept of diversification of energy options simply means among other things, dissolution of energy governance structure, multiplication of the means of energy production, increasing availability of affordable energy options. This concept could potentially address the contradiction between the realization of the energy goal with increased energy access irrespective of the nature of the energy sources as well as the realization of the climate goal.

Renewable energy development

Closely related to the diversification of energy options is investing in renewable energy by African states in the global south. Admittedly, there is clear evidence that the continent has abundant renewable energy sources ranging from solar to hydropower, biomass, and wind, among others. Renewable energy sources are now widely recognized as not only pivotal to addressing energy access and security challenges in developing countries but also seen as a viable means to address climate change. The truth remains that public and private investment in renewable energy and other low-carbon energy technologies in Africa, especially in the sub-Saharan region with massive renewable energy potentials is a viable way to achieve the energy and climate goals.  

Regional cooperation in energy development and management

The role of regional cooperation by African countries in the area of energy development to address the challenges of energy access cannot be overemphasized. Particularly, the Economic Community of West African States (ECOWAS) and Southern African Development Community (SADC) play a significant role within each region in addressing energy access and security challenges. Already, there are notable gestures by African states in this regard, with the development of the West African Power Pool (WAPP) in the western region and the Southern African Power Pool (SAPP) in the southern region. In order to achieve energy and climate justice simultaneously, African states need to increase regional cooperation in the development of clean energy by way of rising to the challenge of energy access through a collective engagement with the trend of green growth.  

This piece was first published on the African Legal Studies Blog of the University of Bayreuth and is reproduced here with permission and thanks.

Posthuman Feminism and the Rights of Nature

Photo by Simon Abrams

In collaboration with the Ecological Law and Governance Association, the Global Network for Human Rights and the Environment (GNHRE) is delighted to announce its next webinar on the theme: Feminist and Queer Approaches to Environmental Law and Rights.

The webinar is taking place on 20 Apr. 2021 at 5pm CET (4pm UK, 6pm Kenya, 11am US Eastern Time)

Dr. Emily Jones, Lecturer in Law at the University of Essex, joins a great panel of speakers with her paper titled: “Posthuman Feminism and the Rights of Nature”.

International environmental law is anthropocentric, categorising the environment and non-human animals as objects to be exploited for human needs. This anthropocentrism has contributed to the law’s inability to address environmental deterioration.

In her paper, Dr. Jones will draw on posthuman feminist theory and resonances between these theories and the emerging legal recognition of the rights of nature to challenge and re-think the anthropocentrism at the heart of international environmental law. 

The following presenters join Dr. Jones on the panel of speakers for Tuesday’s event:

Atieno Mboya Samandari (Emory): “Ecofeminist Approaches to Climate Change”

Ellen Spannagel (McGill): “The Experiences and Resistance of Gender, Sexual, and Romantic Minorities to the Climate Crisis”

Nicholas Stump (West Virginia): “Radical Intersections: Critical Environmental Human Rights and an Ecofeminist Ecosocialism in the U.S. Appalachian Region”

Chair: Dina Lupin (Vienna)

To attend the webinar, register using the link on the GNHRE’s website here.

Impact on Victims’ Law Policy Paper

Photo by Edward Howell

In a report published in November 2020 (Constitutional Powers of the Victims’ Commissioner for England and Wales), co-written by the Essex Law School’s Professor Maurice Sunkin together with Professor Pam Cox and Dr Ruth Lamont, these experts argued that the role of the Victims’ Commissioner for England and Wales – set up in 2004 to promote the interests of the victims of crime – needs to be strengthened if it is to be effective.

This report has been influential in recent developments in this area. In particular, a new paper (titled Victims Law Policy Paper: The Victims’ Commissioner’s proposals for a Victims Law) by the current Victims’ Commissioner, Dame Vera Baird, appears to have been closely informed by eight of the recommendations made by Sunkin, Cox and Lamont.

These included Recommendation 2 to develop a set of core statutory rights, with a statutory duty on those  agencies listed in the Victims’ Code to ensure all their policies and practice are compliant; and Recommendation 25 to establish a single cross-criminal justice system complaints body for all victim complaints in respect of non-compliance with the Victims’ Code, which is responsible for the oversight of the handling and response to the complaint.

It is great to see how the November 2020 report has produced some very concrete impact and helped develop thinking around what The Victims’ Commissioner for England and Wales wants to see from a Victims Law.

COVID-19 Research on Vulnerable Communities Proves Influential

Photo by Kate Trifo

A publication featuring rapid responses to the impact of COVID-19 from a range of Essex experts has been recognised as influential by a panel providing evidence to government.

COVID-19, Law and Human Rights: Essex Dialogues, a 32-chapter collection featuring contributions from the School of LawHuman Rights Centre and School of Health and Social Care, has been cited in a new summary of research on the impact of COVID-19.

The summary, Rebuilding a Resilient Britain: Vulnerable Communities, looks at the relevant expert evidence in 11 Areas of Research Interest (ARIs), selected by Chief Scientific Advisors within the Government Office of Science.

The contributions of Essex experts are noted under two ARIs: “the role of local authorities in protecting vulnerable populations”; and “analysis of whether, where and how states or non-state actors use the disruption caused by the crisis to curtail minority rights or promote ideologies”.

Dr Carla Ferstman, who co-edited the Essex collection, said: “The goal of the publication was to bring together the widest possible array of scholars to think through the multiple, intersecting impacts of COVID-19, and to help frame the global research agenda. The interest in COVID-19, Law and Human Rights: Essex Dialogues has exceeded our initial expectations. It has fostered interdisciplinary research and has led to important new collaborations within academia and in numerous policy domains.”

COVID-19, Law and Human Rights: Essex Dialogues has been downloaded over 2,700 times since its publication in July 2020, making it the most downloaded single publication in this period on the University’s Research Repository. The individual chapters from the publication have resulted in an additional 5,500 downloads.

ARIs were developed as a result of the Nurse Review of Research Councils, which called on government departments to communicate clearly where their research objectives lie. The ARIs are an annually-updated list of priority research questions, chosen from a list of topics identified by government departments, which in turn invite academics to engage with government departments to inform policy making.

The report was produced by the Vulnerable Communities Working Group, which comprises 26 members including academics, civil servants, funders and civil society groups.

The foreword to their report notes: “Working across government and drawing from the extensive expertise of our academic community will be essential in the recovery from the COVID-19 pandemic, to rebuild a resilient Britain.”

This post originally appeared on the University of Essex news webpage and is reprocuded here with permission and thanks.