Emmet Coldrick is a barrister at Quadrant Chambers, London. The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.
This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England. They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).
These extraordinary new laws were made without prior debate in Parliament. The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.
On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one. The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”). That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.
Mr Dolan’s challenge is pending in the Court of Appeal. It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health EWHC 1786 (Admin) (6th July 2020). But the Act presents difficulties in interpretation that were not grappled with in the judgment. I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.
With Baroness Hale’s recent criticism of the emergency measures taken by the government ringing in our ears, the following information from across the Atlantic might be of interest. The New England firm Pierce Atwood LLP has compiled a list of class actions related to COVID-19 in the United States, including all filed and anticipated cases up to 9 September 2020. Although their survey only covers litigation in the US, a similar trend may be predicted in this country, albeit on a smaller scale, even as the pandemic continues to unfold: indeed Alethea Redfern has made reference to such a likelihood in this week’s Round-Up. The authors of the US report observe that, despite “unprecedented court closures and changing procedural rules”,
class actions have steadily increased and are expected to expand across industries, jurisdictions, and areas of law. The impact of COVID-19 on business operations, consumer activity, and economic forecasts has made clear that the filings to date are only an early indication of what is to come.
The report provides a categorised summary of coronavirus-related class action litigation filed to date, highlighting the core allegations of each complaint. You will find the individual case citations in their post on Lexology.
The Joint Committee on Human Rights has published a report which proposes that the Government must urgently consider the human rights implications of its Covid-19 measures.
The report drew attention to eight problem areas, claiming:
The Lockdown Regulations had not been made sufficiently clear to members of the public, and more care was needed to distinguish between advice, guidance and the law. People had paid fixed penalty notices of up to £10,000 in circumstances where the police “do not fully understand their powers” and there was no realistic appeal or review procedure.
Health and Care criticisms include that the allocation of PPE may have been discriminatory, the imposition of blanket “do not resuscitate” policies in care homes was unlawful, and hospital admissions policies were ageist.
Detention continues to be an area of acute concern, with blanket bans on prison visits “incompatible to the right to family life”, and a call for inspections to resume as soon as possible to avoid human rights abuses.
Contact Tracing raised ongoing privacy issues, also the Government’s decision to stop the centralised model in favour of a decentralised model was welcomed.
Children and the right to education had been impacted differently by school closures depending on socioeconomic factors and special educational needs and disabilities.
Access to justice had been limited during the pandemic, and the report called on the Government to ensure that lack of access to technology would not lead to disadvantaged persons being digitally excluded from the justice system.
An interim review into deaths from Coronavirus was recommended to discharge the UK’s procedural obligations under article 2.
Accountability and scrutiny of Government powers under the Coronavirus Act was insufficient. The report called for new provisions to be subject to parliamentary debate and approval. In addition, it stressed that major announcements should be made to Parliament rather than through news channels or other press briefings, especially when human rights were engaged.
The report’s publication comes as Covid-19 cases rise, forcing Boris Johnson to confront a bleak choice.
Opposition to new measures from Tory MPs, human rights groups and some portions of a beleaguered British public is mounting. Rishi Shunak and Alok Sharma, business secretary, have warned that another lockdown would be an economic calamity. At the same time, pressure builds from scientific advisers, including Chris Whitty, chief medical officer, and Patrick Vallance, chief scientific adviser, urging measures now to avoid deaths and disruption later.
But the report’s concerns about government accountability under the Coronavirus Act 2020 are shared by commentators across the political spectrum. When the government tries to renew the Act on 30 September, Sir Graham Brady, chair of the 1922 committee, will seek an amendment requiring MPs to vote on future measures to control the virus, to prevent “draconian restrictions on personal liberty and economic life [being] introduced without proper scrutiny.”
His concerns are shared by Lady Hale, former president of the supreme court, who says parliament “surrendered” its role over emergency laws restricting freedoms amid the coronavirus pandemic. In the same vein, FT columnist and lawyer David Allen Green criticised courts’ deference to the executive during emergencies for “leaving those adversely affected with no remedy.” So far, the UK has avoided a constitutional crisis, he writes. But the pandemic has revealed, more than ever, that “the constitution of the country is in a damaged and precarious condition.”
Emergency measures were viewed as necessary when the nation was first trying to survive the virus. Now, as we learn to live with it in the long-term, resistance to those measures is on the rise.
In the Courts
With the UK courts in recess, there are very few reported judgments this week. However, there are some noteworthy judgments from the European Court of Human Rights:
Kotilainen and Others v. Finland  ECHR 635: this case concerned complaints about failures by Finnish authorities to protect the lives of the ten victims of a 2008 school shooting in the town of Kauhajoki. The ECHR held, by six votes to one, that there had been a violation of article 2 (right to life) due to the authorities’ failure to observe their duty of due diligence and seize the killer’s weapon before the attack. The police had seen post online by the shooter and interviewed him prior to the attack, but decided against confiscating his weapon. Unanimously, however, there had been no violation of article 2 over the investigation after the attack. Judge Eicke expressed a dissenting opinion.
Grubnyk v. Ukraine  ECHR 636: this case concerned a Ukrainian national who was arrested and detained in connection with a series of terrorist attacks at a time of great tension in Odessa. He claimed he had been arrested without a prior court decision, without being given reasons, and without the option of bail due to the nature of his offences. The court unanimously found that there had been no violation of articles 5(2) and (3) (right to liberty and security), two violations of article 5(1), and a violation of article 6(2) because his initial pre-trial detention order stated he was guilty of a “grave offence” before he had been convicted of one. The ECHR considered that the finding of violations constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
Aggerholm v. Denmark  ECHR 628: the applicant, who suffered from paranoid schizophrenia and had violent tendencies, was strapped to a restraint bed for almost twenty-three hours in a psychiatric hospital. The ECHR held that this was not strictly necessary and not respectful of his human dignity, and therefore that there had been a violation of article 3, which prohibits inhuman or degrading treatment or punishment. The applicant was awarded damages and costs.
On the UKHRB
In the latest episode of Law Pod UK, Professor Catherine Barnard of Cambridge University comments on the transition period towards Brexit since we formally left the EU.
Euan Lynch focuses on the Lord Justice Clerk Lady Dorrian’s comments in a recent case, which cast doubt on the existence of a common law right to privacy in Scotland.
Dr Sean Molloy criticises the UK Government’s decision to propose the controversial UK Internal Market Bill, and sets out a number of reasons why it ought not flout international law.
David Hart QC outlines proceedings recently started in the ECHR by six Portuguese citizens against 33 Council of Europe countries for failing to address climate change.
Rafe Jennings summarises the CJEU’s ruling, in a first for the regulation, that zero tariff contracts contravene net neutrality regulations.
Last week, the Inner House of the Court of Session refused a reclaiming motion in relation to the use of racist, antisemitic and sexist WhatsApp messages in misconduct proceedings against ten police officers. The judgment discusses several interesting issues, such as the police officers’ reasonable expectation of privacy when exchanging such messages, which can be found here.
However, the focus of this article shall be on an aspect of the case which was not cross appealed: the existence of a common law right to privacy in Scotland. Despite not being an issue of contention, the Lord Justice Clerk, Lady Dorrian, took the opportunity to express her views on the matter. These now cast doubt over the existence of such a right – one which Lord Bannatyne, from the Outer House, believed was nascently recognised in case law.
In her latest episode Professor Catherine Barnard of Cambridge University comments on the transition period towards Brexit since the Withdrawal Act was implemented by the government in January this year when we formally left the EU. It was this act that the Internal Market Bill was set up to amend, and it’s the Internal Market Bill that’s been debated in Parliament. Listen to Catherine Barnard on the difficult border problems and other issues in our repost of 2903 CB.
The CJEU has ruled, in a first for that regulation, that the use of “Zero Tariff” contracts are inconsistent with its “Open Internet” regulation (Regulation 2015/2120). The regulation “aims to establish common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and end users’ rights”. Its intention is to legally establish the principle of ‘Net Neutrality’, whereby internet access providers are prohibited from giving preferential treatment (for example, limiting access or increasing traffic speeds) to specific websites and users.
The issue in this case was whether zero tariff contracts offered by Telenor, an Hungarian internet access provider, contravened net neutrality regulation. Zero tariff contracts provide data allowances to their users, (1 GB, for instance), which the consumer is allowed to use as they please. On running out of data, typically internet access would be stopped. However, in its two zero tariff contracts, called MyChat and MyMusic, certain websites and applications did not run down the data allowance. Furthermore, even once the data allowance had been used up, the same websites and applications could still be accessed, although otherwise no internet access was provided.
For a while, 6 Portuguese citizens, between the ages of 8 and 21, have been on the brink of starting proceedings in the European Court of Human Rights. Now it has happened. On 3 September 2020, they sent their claim to the ECtHR. They have been helped in its preparation by the Global Legal Network, which has helpfully put up here a summary as well as the salient parts of the documents sent to the Court.
The claim is against 33 Council of Europe countries (all the EU 27, plus the UK, Switzerland, Norway, Russia, Turkey and Ukraine) for failing to take sufficient steps to address climate change. The failures alleged include permitting emissions domestically, permitting the export of fossil fuels extracted from their territories, permitting the import of goods containing embedded carbon, and allowing entities domiciled in those countries to contribute to emissions abroad (via fossil fuel extraction elsewhere or its financing).
A major argument offered in defence is the one focused on the supremacy of domestic law over its international counterpart (see HMG Legal Position: UKIM Bill And Northern Ireland Protocol). The argument goes something like this: where domestic law appears to conflict with international law, Parliament reigns supreme and the domestic legislation is to have effect.
Strictly speaking, this is true. In contexts like the UK, with a dualist system requiring international treaties to be incorporated by an Act of Parliament, any international agreement that is not incorporated into domestic law, but which conflicts with an Act of Parliament, must give way.
But when the dust settles and the reality sets in that UK, as a country, must operate alongside other countries, there is likely to be a host of adverse implications to flow from this decision. Primary among these is, of course, that international law is law and the rule of law necessitates that the UK complies with its international obligations. This is obvious and it is a remarkable state of affairs that the point even needs to be made. Nevertheless, beyond the obvious, there are a multitude of other reasons not to flout international law, only a few of which are touched upon below.
The Prime Minister has courted controversy yet again this week with a new Brexit bill that appears to violate international law. The proposed Internal Markets Bill would give ministers certain powers relating to Northern Ireland in respect of customs rules and state aid. In particular, it would give them powers to modify or “disapply” rules relating to the movement of goods which will come into force from 1st January 2021, if the UK and EU are not able to agree a trade deal. These were key issues under the Northern Ireland Protocol that was negotiated as part of the Withdrawal Agreement concluded on 31 January this year. In a striking admission, Northern Ireland Minister Brandon Lewis stated in Parliament that this breach of the Withdrawal Agreement does indeed breach international law, but only “in a very specific and limited way”. The bill is to be formally debated by MPs today.
In a further move to avoid the UK’s international law obligations, the Government has indicated that it is planning to “opt out” of parts of the European Court of Human Rights. This proposal is apparently made in order to enable the Government to accelerate deportation of asylum-seekers, and to minimise legal action against British forces overseas, which the Government identifies as key areas where the judges of the European Court have “overreached”. The proposals have provoked outrage from Labour and the Liberal Democrats.
The Joint Committee on Human Rights’ inquiry into racism and human rights in the UK heard evidence this week from ClearView Research. The evidence provided from surveys indicates that black people in the UK overwhelmingly do not think they receive equal human rights protection. According to the data, 75% of black people in the UK do not believe their rights are equally protected compared to white people; 85% are not confident they would be treated the same as a white person by the police; and 60% do not believe their health is equally protected by the NHS compared to white people.
The British Institute of Human Rights has released a report which raises new concerns about the operation of the care sector during the pandemic. The report states that more than 75% of social care staff were not given proper training to deal with the impact of COVID-19, in particular in relation to human rights law and coronavirus emergency powers – despite the wide-ranging changes made by the government to the legal framework which governs the care sector, including suspending duties under the Care Act, changing vulnerable individuals’ care packages, and banning non-essential visits to care homes. The report also noted that more than 60% of vulnerable individuals with care and support needs were not informed of the legal basis of the drastic changes made to their care packages.
As the school year gets going again, grammar schools will need to be cautious in complying with their duty to make reasonable adjustments, following a legal challenge funded by the Equality and Human Rights Commission. The challenge was brought by a visually impaired student who was unable to sit an 11+ entry exam for a Berkshire grammar school when the school refused to make adjustments specified in his Education Health and Care Plan, on the basis that they were too expensive; the First-tier Tribunal found for the student.
In the courts
With the UK courts in recess, there are very few reported judgments this week. However, there are some noteworthy judgments from the European Court of Human Rights:
GL v Italy: a child diagnosed with nonverbal autism was entitled to specialised assistance under Italian law. The local authorities did not provide this for 2 years, while she was in primary school, on the basis of lack of resources. The ECtHR found that there had been a violation of Article 14 read with Article 2 of Protocol 1 (right to education). In particular, the court noted that the Italian courts had failed to consider whether there was a fair balance between the child’s educational needs and the authorities’ capacity, and did not verify how the effect of budgetary restrictions compared for non-disabled and disabled children. The court further observed that the national authorities had not considered the possibility that they could address their lack of resources by reducing their educational offer accordingly, such that it could be distributed equitably between non-disabled and disabled students. In giving judgment, the court emphasised that budgetary restrictions must impact the education available for disabled and non-disabled pupils the same way; and that discrimination of this kind is all the more serious when taking place in compulsory primary education.
NS v Croatia: the applicant’s daughter and partner had died in a tragic car accident, but their daughter survived. In the aftermath of the accident, there was a custody battle between the applicant and the child’s uncle; following confidential court proceedings, the uncle was given custody. The applicant subsequently appeared on a national TV show, where she discussed the proceedings, and expressed criticism of the Croatian child protection system on a TV show; she was convicted of a criminal offence for breach of confidentiality in respect of the court proceedings. The court held that there had been a violation of Article 10. The domestic courts should have considered the fact that most of the information disclosed in the TV report was already known to the public, and that the applicant had been appearing on TV in good faith to raise serious concerns about the malfunctioning of the country’s social welfare services.
Yordanovi v Bulgaria: two Turkish-Muslim brothers decided to set up an association for the integration of Turkish-speaking Bulgarians. In pursuit of this aim, they built a monument on private land to commemorate soldiers killed in the 19th Century Russo-Turkish War, and set up the ‘Muslim Democratic Union’ at an assembly in the centre of town. Police told them the assembly was illegal, but it went ahead; criminal proceedings were subsequently brought for setting up a political organisation on a religious basis, and for breach of the peace in setting up the monument. The brothers were given a suspended prison sentence. The court held that this was a violation of Article 11. The authorities had many other options: they could refuse to register the would-be political party, without which registration the party would not be able to engage in any official activity; and they could have dissolved the party if it were declared unconstitutional by the Constitutional Court. A criminal sanction had been a disproportionate interference with freedom of expression and freedom of association, and was not ‘necessary in a democratic society’.
Timakov and Ooo Id Rubezh v Russia: the applicant and his newspaper had published an article making allegations of corruption against the Governor of the Tula region in Russia. The Governor brought civil and criminal proceedings, and substantial damages awards were made – sufficiently substantial that some of the applicant’s household items were taken to fulfil them. The Governor was ultimately found guilty of bribery and corruption and sent to prison. The court found that there was a violation of Article 10. In reaching this conclusion, the court noted a laundry list of failings in the Russian courts: the courts had not sought to balance the governor’s interest in protecting his reputation against the importance of public transparency and accountability; the courts had not considered the applicant’s role as a journalist, that these were matters of public concern, or that he had acted in good faith; the courts had not attempted to consider whether the statements complained of were statements of fact or value judgements. The court further emphasised the chilling effect of such disproportionately high awards, with the awards from the civil proceedings having been substantially higher than the fine in the criminal proceedings.
BG and others v France: Eastern European asylum-seekers with young children were accommodated by the French authorities in a set of tents in a parking lot, for a period of approximately 3 months. They alleged that there had been a violation of Article 3 and 8, insofar as they had not benefited from the material and financial support provided for under national law. The court rejected their claim, noting that the applicants had received constant food aid; medical monitoring, vaccination, and education had been provided for their young children; and their asylum application had been examined under an accelerated process.
Shuriyya Zeylanov v Azerbaijan: this case highlights serious failings in the Nakhchivan Autonomous Republic of Azerbaijan. The applicant’s son had been charged with treason, having been accused of collaboration with Iranian intelligence forces, and died in custody from an alleged pulmonary embolism. The applicant claimed that the government had violated Articles 2 and 3. The court upheld his claim, under both the substantive and the procedural limbs. The government had failed to convincingly account for the circumstances of the victim’s death, and it appeared likely that injuries visible on video footage of his body had been occasioned by torture. Likewise, the government had failed analyse the causal links between his injuries and his death, or to cooperate with the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment; and it appeared that the government had attempted to prevent an effective investigation into the matter, by levelling accusations of defamation against the deceased’s family.
On the UKHRB
Sapan Maini-Thompson discusses a High Court challenge to conditions at Brook House Immigration Removal Centre
Philippa Collins considers the implications of the new pattern of home working for privacy rights under the European Convention of Human Rights
Elliot Gold examines a judgment of the European Court of Human Rights on Article 3 ECHR in the context of a rape investigation
In Soltany and Others v SSHD , the High Court dismissed a challenge to the conditions at Brook House Immigration Removal Centre (IRC), which at the material times in 2017 and 2018, was run by G4S.
The claim for judicial review, which was brought by three individuals of Afghan origin, principally contended the night-time lockdown regime, pursuant to which detainees were locked in their rooms overnight from 9pm to 8am, was both “unnecessary and unduly harsh” .
Additionally, two of the claimants argued that the combination of the night state, which meant that observant Muslims had to perform some of their daily prayers in their rooms, and the conditions of the rooms (especially the proximity of the toilet) amounted to unlawful religious discrimination.
In a complex judgement extending to over 400 paragraphs, Cavanagh J refused the application on each ground. First, the Court held that Brook House’s overnight lock-down regime and room conditions are compatible with both ECHR Articles 5 and 8. Second, the Defendant did not act contrary to either the common law or Article 5 in failing to give reasons for the allocation of detainees to specific removal centres. Third, there was no religious discrimination under ECHR Article 9, either read alone or together with ECHR Article 14. Nor was there any indirect discrimination contrary to section 19 of the Equality Act 2010.
This article was first published on the UK Labour Law Blog ( @labour_blog). We repost it with the kind permission of Dr Philippa Collins (@DrPMCollins at Exeter University)and the editors of the Labour Law Blog
One of the lasting impacts of the COVID-19 pandemic upon the world of work is likely to be a move away from the traditional workplace. In some sectors, such as academia, IT, and administration, remote work or home working is an established working pattern, although a rare one given national statistics from 2019 which indicated only 5% of the workforce worked mainly from home. The need to prevent the spread of the coronavirus through contact in the workplace precipitated a rapid and widespread move to homeworking. In an ONS survey in early May, 44% of adults surveyed were working from home. As some businesses begin to transition back into their previous working patterns, several high-profile companies have announced that they will not expect their staff to return to the workplace and will support homeworking as a permanent option in the future.
This article was originally published on Serjeants’ Inn Chambers UK Police Law Blog. They have kindly given us permission to repost it here.
In Y v Bulgaria  ECHR 163, the European Court of Human Rights set out the minimum requirements for criminal investigations where a person has been subjected to ill-treatment contrary to article 3 and held that those principles were properly derived from cases involving breaches of article 2, despite their different content and rationale. Here, the court found a breach of article 3 in respect of the authorities’ failure to pursue an obvious line of enquiry in a rape investigation and awarded €7,000. It is an example how an investigation can be satisfactory in several respects but still fail to comply with the minimum requirements of article 3. It is also worth comparing with the bands of damages that English cases have suggested.
On 10 July 2013 at 23.30, a woman was raped in a field by an unknown man with whom she had spoken at a bus stop and agreed to follow to a nearby train station. She called the police at around 00.05. The police recovered forensic material, the applicant’s clothes and, later that day, the applicant underwent medical examination and gave a description of the assailant.
The Russian political dissident Alexei Navalny is still in an induced coma in a hospital in Berlin after being poisoned with the nerve agent Novichok on a flight from Siberia to Moscow on the 20th of August. The last time we heard of this lethal organophosphate was two years ago when two Russian residents in Salsibury, Wiltshire, survived an assassination attempt. Dawn Sturgess, who lived eight miles away, was not so lucky. She died after spraying herself with a discarded bottle of the poison which she thought to contain perfume.
At her inquest, the senior coroner declined to extend the scope of his investigation to the involvement of the Russian state in her death as collateral damage to the assassination attempt. Her family took judicial review proceedings to challenge his conclusion. They were partially successful; the court said the although the coroner couldn’t state, in terms, that the Russian state was liable in civil or criminal law, he could still investigate that matter. They reverted the matter to him. Read the judgment of the Administrative Court on the 24th of July here.
The senior coroner, who must now ask if answering how Ms Sturgess died requires him to look at involvement of Russian state. In the latest episode of Law Pod UK Rosalind English discusses the broader implications of this case with Matt Hill of 1 Crown Office Row. (Apologies – due to a technical error, the wrong episode was posted under “The Salisbury Poisonings” yesterday. The correct episode is now in place.
In this article, Prachiti Venkatraman and Ashley Jordana of Global Rights Compliance analyse the case before the International Court of Justice relating to the persecution of the Rohingya people by the Myanmar authorities.
Readers are encouraged to read the previous articles about this topic published on the blog here and here.
The perilous situation of the Rohingya in Myanmar continues – the recent UN policy brief on Covid-19 in South-East Asia highlighted the compounded effects of the nation’s weak healthcare system and an ongoing armed conflict that targets ethnic communities.
On 11 November 2019, The Gambia filed an Application to commence proceedings against Myanmar before the International Court of Justice (‘the Court’). The Application alleged that Myanmar had violated its obligations under the Genocide Convention by committing acts intended to destroy in whole or in part the Rohingya community, as well as attempting and conspiring to commit genocide, inciting genocide, being complicit in its commission, and failing to prevent and punish genocide. To demonstrate the validity of these allegations, The Gambia relied on the actions of the Burmese military (‘the Tatmadaw’) and individuals connected to the State of Myanmar during the ‘clearance operations’ in 2016 and 2017 which led to the mass murder, sexual violence, and destruction of Rohingya villages in Rakhine state.
This interview was recorded the day after the Home Office released a post on social media suggesting that “activist lawyers” were abusing regulations by delaying and disrupting returns of migrants. The Law Society and Bar Council both condemned the video, and it has since been taken down by the Home Office, see here.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.