The Future Lawyer Weekly Update – w/c 17th August

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Human Rights

Kenyan tea works: complaint to UN

Reported by Laurence Tsai

A group of 218 Kenyan tea plantation workers have launched a formal complaint against Unilever PLC at the United Nations (“UN”) for the company’s alleged failure maintain its obligations under the UN’s Guiding Principles on Business and Human Rights.

In 2007, an election in Kericho brought about excessive turmoil, resulting in a horde of assailants invading Unilever’s Kericho tea plantation, who attacked hundreds of workers and their families based on their ethnicity. Following the attacks, Unilever closed the plantation temporarily and sent workers home. The victims contend that they were not paid for six months.

The victims attempted to obtain legal redress in the UK from 2015 to 2019. In 2019, the Supreme Court refused leave of appeal for the victims as the case did not raise a point of law of general public importance, and that the violence was not foreseeable. The Court also explained that Unilever’s Kenyan subsidiary was responsible for risk management of any crises and, thus, the case should be heard in Kenya.

The complaint makes three allegations against Unilever:

1. Unilever placed the victims in a position of significant risk of attack on their plantation and yet has refused to provide adequate redress or assistance to the victims.

2. After the violent events, Unilever failed to provide appropriate assistance to the victims and instead unilaterally stopped their wages for a six month period, further exacerbating their situation.

3. Unilever sought to block any prospect of access to remediate the victims in England by hiding behind its corporate structure, claiming that it could not be held legally responsible for any failings of their Kenyan subsidiary, whilst knowing that these claims could not be brought in Kenya

The complaint submits that each allegation constitutes a serious breach of the United Nations Guiding Principles on Business and Human Rights. One of the principles at issue here is the responsibility to prevent human rights risks and address human rights impacts at subsidiaries.

In contrast, Unilever strongly rejected any allegation of violation of such principles and stated it provided significant support to those employees impacted, including providing retraining for new jobs as well as free medical and counselling support. It also adds that it provided employees, whose possessions had been looted, with replacement items, ranging from furniture, bedding and clothing to TVs, mobile phones and cows.

If the UN finds that Unilever is in breach of these principles, it cannot mandate Unilever to take action.

However, such declaration would be extremely damaging for its reputation as it considers itself to be a leader in advancing and caring for human rights. Through this international route, the workers request the UN’s working group on Business and Human rights to make a declaration that Unilever had failed to comply with the UN’s Guiding Principles, and to call on the company to provide them with effective redress. Additionally, Leigh Day (the law firm representing the workers) requests a UN statement on the litigation strategies employed by parent companies to distance themselves from subsidiaries. It is hoped that the UN would give clarity as to whether a parent company can shield themselves from liability (for their subsidiaries’ human rights abuses) by the doctrine of separate legal personality. Though, if this issue were addressed, it may be visited on a case-by-case basis.

You can find more here or here.

Asylum seekers and immigration law

Legal action is launched against the UK government to halt the removal of asylum seekers.

Reported by Katie Henderson

The claim is based on the argument that they are entitled to international protection; many are survivors of torture and are fleeing war-stricken countries and consequently suffer from serious mental health issues. Those involved in the legal action come from various countries including Afghanistan, Iran, Kuwait and Yemen and are being represented by Duncan Lewis Solicitors. Almost all of the migrants arrive on small boats involving a perilous journey and often abuse from criminal smuggling gangs. One of the asylum seekers who was expected to be put on the removal flight is a 24-year-old from Yemen (his removal has been deferred). He spoke of the deep trauma he suffered caused by the conflict in Yemen and was even placed on suicide watch after being detained by the Home Office in July; showing the fragility of those involved in the process. Duncan Lewis Solicitors states that they are ‘by definition refugees’ and therefore the claims must be processed in the UK. A pre-action protocol was served on the 10th August (the first step in the judicial review process).

What legal basis can a claim be brought on?

The 1951 Refugee Convention ensures that a refugee cannot be returned to a country where they fear persecution (for different reasons i.e. religion/race). The migrants may also be protected by Article 3 of ECHR which prohibits the torture and inhuman/degrading treatment or punishment of a human being. This would prevent the UK returning anyone to a country where they risk being subjected to such treatment. Reliance on this would provide a stronger argument as unlike under the convention, they would not have to prove the reason for such treatment (race/political group) rather just that there is a risk. As of Wednesday 12 th August, 14 asylum seekers were placed on a removal flight to France and Germany. The 19 represented by Duncan Lewis have had their deportation stayed, allowing them the opportunity to make more detailed asylum applications. The removal to France/Germany is legally justified under the Dublin Convention; this is current EU legislation which allows for the removal of a migrant where there is evidence that they had spent time in another EU country or been fingerprinted through Eurodac. Earlier this year the government launched Operation Sillath, an initiative focusing on the deportation of migrants that arrive from France in small boats, in which the government relied heavily on the Dublin Convention. There have been concerns that the convention has not been properly adhered to and was used to quickly remove asylum seekers back to France. It is suggested that migrants are being returned before applications have been thoroughly considered and without the necessary evidence to show they had actually sought asylum in France; this would amount to a breach of EU law.

The convention however will not be a viable method for the Home Office after the post-Brexit transition period in December. Colin Yeo an immigration barrister highlighted the issues the UK would face after leaving the convention, without a new agreement with France.
He says: “It’s all very well having UK law saying you can send somebody to France, that doesn’t mean the French have got to accept them, short of some sort of bilateral agreement with France or a group treaty with the EU.”.
The prime minister’s recent response to the influx of migrant crossings is to focus on deterrence, by making it easier to remove migrants. He suggested that there was a need for a stricter approach to limiting the flow of migrants between France and the UK. A spokesperson for the Home Office said: “No one should be making these dangerous and illegally-facilitated crossings from France to the UK. France is a safe country, and no one should be getting on these boats and putting themselves in danger. We are working closely with the French government to tackle this dangerous and illegal activity, including returning over 155 migrants back to European countries.”. Humanitarian organisations have instead pressed for the government to provide safer routes to the UK. There are likely to be many similar cases before this complex issue is resolved.

Find out more here or here.

Law and Lockdowns

The Law Behind Local Lockdowns

Reported by Oliver Murrell

The UK saw its first local lockdown in Leicester at the end of June and since then, other areas have been placed under local lockdown. Greater Manchester, Bradford and Aberdeen are amongst the areas where residents are unable to enjoy the same freedoms as the rest of the country.

Additionally, those in Greater Manchester were undoubtedly angered further after the Health Secretary Matt Hanock MP announced the lockdown on Twitter just the night before it was to be enforced. However, I will ignore the politics and the emotions of the lockdowns to provide a brief examination of the law behind the local lockdown recently imposed on large parts of Northern England.

2020 has seen a great deal of legislation swept in to allow the government and its ministers to control the outbreak of coronavirus. However, the powers permitting Matt Hancock to impose restrictions on the North of England exist in s.45R of the Public Health (Control of Disease) Act 1984.

This Act then in turn allowed the Health Secretary to make the Regulations needed to impose the lockdown without having to present the Regulations before Parliament. His ability to do this is in itself an interesting and complicated issue of constitutional law, especially given the potential human rights issues involved. But that is an issue is for a separate article.

The Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020 came into force on the 5th of August with help from s.45R. Under this provision, Matt Hancock was able to introduce these Regulations without Parliamentary scrutiny due to the urgency of the serious and imminent threat coronavirus poses. The Regulations begin by setting out the specific areas under the new rules, with restrictions on Greater Manchester and surrounding areas, and then separate restrictions on Blackburn and Darwen. Those who worry about the Regulations bypassing Parliament, will be thankful that s.4 contains provisions requiring the Regulations to be reviewed every 14 days. Furthermore, within s.45R there is a greater protection, wherein the Regulations cease to have effect after 28 days. After which point the North of England will either have their local lockdown renewed or they will be on the same rules as the rest the country.

Having discussed how the Regulations was introduced, where its effects and how it can become ineffectual or renewed, it is time to discuss what the Regulations actually prohibit. S.5 states that gatherings in private dwellings are prohibited, except with those who live with you in that dwelling. Seems rather cut and dry. Well unfortunately not. s.5 goes on to list the large number of exceptions where two people from different households are able to be in the same private dwelling. Exceptions include those in prison, student accommodations and in hostels. Additionally, people from several households are permitted, where it is reasonably necessary, to gather in a single private dwelling.

Such reasonable necessity exists when emergency assistance is required in the household, for work purposes and even for the provision of charity and volunteering services. While the Regulations may at first seem like a large imposition, there are so many exceptions that it actually only stops people from seeing others for social reasons in their own home. What the Regulations do not do is prevent you from seeing your friends in the pub, in parks or churches. But what those in the affected areas should be wary of is the sizable fine that comes with breaching the Regulations, which can be up to £3,200 for several breaches.

The local lockdown Regulations imposed on large parts of North of England raise a number of constitutional and political questions, but in reality, they will have limited implications in the legal world, with challenges to the original national lockdown failing in the courts. Either way, the law behind such an unprecedented curbing of public freedoms is something all good law students should familiarise themselves with.

You can find more here or here.