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A police officer enforces the lockdown in Greenwich Park. Image: The Guardian
Essential caveat
This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.
Prof. King argues that these regulations are within the scope of the powers granted to make such Regulations under the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’) as amended. They were passed under the emergency procedure set out in s 45R which means they were not approved by Parliament due to the urgency of the situation.
In this post I make the contrary argument: that the Regulations go well beyond the powers under Part 2A of that Act. I support this claim using only traditional vires arguments. It is also of course the case that the legality of these Regulations also falls to be determined by whether they violate the right to liberty under Article 5 ECHR, located in Schedule 2, Human Rights Act 1998. That issue warrants separate consideration, which I do not seek to undertake in this post.
Following the sad news of the first death in custody from COVID-19, a question arises: what are likely to be the issues at inquests into the deaths in custody from COVID-19?
Article 2 and the central issues
Not all deaths in custody mandate an Article 2 inquest (see R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin); R (Tyrell) v HM Senior Coroner for County Durham and Darlington [2016] EWHC 1892 (Admin)). An Article 2-compliant inquest must be undertaken when there has been an arguable breach of the substantive obligation to protect life. When a death occurs in custody, Article 2 will be engaged if there have been any arguable failings in the care provided.
In the Christian Brothers case Lord Phillips of famously declared that “the law of vicarious liability is on the move”. The recent decision of the Supreme Court in Barclays Bank v. Various Claimants[2020] UKSC 13 has brought that movement to a juddering halt. The question posed by the appeal was a simple one. Is it possible to be vicariously liable for the acts of a self-employed ‘independent contractor’?The answer the Court gave in this case was ‘no’.
Factual Background
The group litigation concerned the vicarious liability of Barclays for sexual assaults in the 1970s and early 1980s. The alleged assaults were committed in the North East by a now deceased general practitioner: Dr Bates.
Dr Bates was a self-employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants – many of them aged 16 or under – to pass pre-employment medical examinations as part of its recruitment procedures. Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed “Barclays Confidential Medical Report”. Dr Bates was paid a fee for each report. If the report was satisfactory, the applicant’s job offer would be confirmed, subject to satisfactory GCE examination results.
Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It was alleged that Dr Bates sexually assaulted 126 claimants in the group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays.
The Supreme Court has held that a defendant hospital trust must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.
As a result of admitted negligence the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her amongst many other ghastly consequences of the repeated fault of the Trust.
Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant came from a large family and had always wished to have four children. Her preference was to enter into a commercial surrogacy arrangement in the USA and she sought the cost of doing so as damages. She sought to use the stored eggs but also to rely on surrogacy with donor eggs fertilised by her husband’s sperm. The defendant argued that it should not have to pay damages to reflect the cost of UK surrogacy, the use of donor eggs and of the American commercial surrogacy.
In R (DN – Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, the Supreme Court held that the Claimant was entitled to purse a claim for unlawful detention on the basis that the decision to detain for the purposes of deportation could not be separated from the decision to deport. Accordingly, if the decision to deport was unlawful, then so inevitably was the decision to detain.
Background
The Claimant had in 2000 been granted refugee status and indefinite leave to remain on the basis of a well founded fear of persecution as a Hutuif he was returned to Rwanda. He was subsequently convicted of a number of offences, the most significant of which was assisting unlawful entry of a non-EEA national (his niece) into the UK. He was subsequently sentenced to 18 months imprisonment.
The decision to detain
Having completed the custodial element of his sentence, the Home Secretary decided to deport him on the basis of article 33(2) of the Refugee Convention which allows the expulsion of refugees “whom there are reasonable grounds for regarding as a danger to the security of the country”. It was said that he had been convicted of a “particularly serious crime” and that he “constituted a danger to the community”.
Police in Brighton prepare to enforce social distancing. Image: The Guardian
At this point, it is almost trite to say that we are living through unprecedented events. The global spread of the Coronavirus pandemic poses serious challenges to society. So far, the global death-toll has exceeded 21,000 and life as we know it in the UK has changed dramatically. In response to this crisis the Government has announced drastic measures in order to curb the spread of the virus and to support those who may be affected. Indeed, it seems that Cicero’s famous injunction to let the welfare of the people be the highest law has gained a new relevance in the age of COVID-19.
As readers of this blog will probably know, a significant plank of the Government’s legislative response is the Coronavirus Act 2020, which received royal assent on 25 March having been fast-tracked through Parliament. This substantial piece of legislation –which consists of 102 Sections, 29 Schedules and runs to just under 360 pages– is intended to deal with the various challenges that may be posed by the Coronavirus epidemic. As a result, its provisions are broad ranging, touching on areas as diverse as powers to disperse gatherings, pensions, sick pay, inquests and investigatory powers to name but a few.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
Thanks to David Anderson (@bricksilk) for his latest post about the validity or otherwise of the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and whether they are within the scope of the powers conferred upon the Government by statute. Anderson calls for reports on legal developments across Europe in response to the pandemic. He has provided links to interesting rulings in Germany, specifically Bavaria which has some of the most restrictive curfews. Here’s my attempt at a translation/paraphrase of the press reports of two of these decisions.
In a nationwide comparison, the Bavarian regulations are particularly strict compared to the other Laender [see the table above]. However, there is now public resistance to the Bavarian movement restrictions . On 24 March the Administrative Court in Munich confirmed the effectiveness of the Bavarian movement restrictions that were provisionally suspended in two individual cases. However, the validity of the restrictions remains untouched, according to the court.
The court ruled that the Bavarian state government should amend their rules after the introduction of initial restrictions in the Corona crisis after successful challenges were made by two citizens. However the initial restrictions remain valid nationwide.
Prime Minister Markus Söder (Christian Social Union) said after a cabinet meeting in Munich on Tuesday, that following this ruling the legal basis of these movement restrictions would be changed immediately, although until such changes come into force, he stressed that the initial restrictions still apply.
Leaving one’s own home has been prohibited everywhere in Bavaria with only limited exceptions. These exceptions include travelling to work and necessary shopping, urgent visits to the doctor, sports and walks in the fresh air – but only alone or with the people with whom you share a home.
The chamber of the Administrative Court responsible for health law has temporarily suspended the effect of the initial restrictions in favour of two individuals “for formal reasons” (decision of 24.03.2020, Az. 26 S 20.1252 and M 26 S 20.1255). The substantive legality of the curfews was not called into question in the court. In its statement of grounds, the court merely doubted whether it was permissible for the Free State of Bavaria to have made these initial restrictions by way of general (administrative) decree rather than by statutory instrument.
The court’s decisions only had an effect in relation to the two applicants. Restrictions remain valid for all other people in Bavaria, and therefore nothing would change, the court emphasised.
The following post was written on the morning of 26 of March 2020. Today, 27th of March, the Chief Coroner brought out Guidance 35 on hearings during the pandemic (no. 35), with the proviso that all these issues will be kept under review.
On the 26th of March the Chief Coroner published Guidance Note 34 (“GN34”) on COVID-19 which can be found here. The Guidance Note addresses many of the issues relating to the impact of COVID-19 on the coronial service. We set out below some answers to questions those involved with the coronial system may currently have in mind, taken from the Guidance Note and other sources (“GN34#(No.)” refers to paragraph numbers in the Guidance Note).
1) Are Coroners’ Courts conducting hearings at the moment?
GN34#10 provides that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”
It is also noted that
All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business
The United Nations Convention on the Rights of the Child (‘the UNCRC’) celebrated its 30th anniversary on 20 November 2019. On the same day, the Scottish Government announced its plans to incorporate the UNCRC into Scots law. This means that the treaty will form part of domestic law in Scotland and its provisions will be enforceable by the courts. This is the result of many years of campaigning by children’s rights groups and civil society organisations.
What is the UNCRC?
The UNCRC is the most widely ratified international human rights treaty in history. In total, 196 countries have ratified it, with the USA being the only country in the world that is yet to do so.
It is the most comprehensive statement of children’s rights that exists, covering all aspects of a child’s life. It includes civil and political rights to economic, social and cultural rights, and even includes rights such as the right to play. Four general principles guide the implementation of the treaty: freedom from discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right to be heard (Article 12).
Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 – read judgment
On 12 March 2020 a unanimous Court of Appeal led by Sir Ernest Ryder (Senior President of the Tribunals), together with Lord Justice Bean and Lady Justice King, allowed the Appellant’s appeal against the First tier Tribunal (“FtT”) and Upper Tribunal (“UT”)’s decisions upholding the refusal of his application for leave to remain.
The case concerns the correct approach to the interpretation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in circumstances arising out of a foster care relationship where the person who had received or continued to receive that care is now an adult.
Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
Good news from the crisis front, although I’m afraid not the one we’re all thinking of: the government’s Agriculture Bill, which sets out its major post-Brexit agricultural policy, has recently passed committee stage and will soon (coronavirus permitting) be presented to the House of Lords. It shows ambition from the government to develop a post-Brexit agriculture policy with laudable commitments to harnessing the power of farmers to help address the climate crisis, and helps to address issues such as food security. Along with the Environment Bill, discussed here, it constitutes some of the core legislation aimed at achieving the government’s Net Zero by 2050 goal.
The government’s haunting refrain, since their 2018 ‘Health and Harmony’ consultation on post-Brexit agricultural policy, has been “public money for public goods”. The bill puts this into practice by giving the secretary of state power to dismantle the subsidy schemes of the Common Agricultural Policy (CAP) and replace it with the Environmental Land Management Scheme (ELMS). Under this scheme, farmers will be awarded for specific activities with ‘public goods’: good practices that further environmental goals in areas such as biodiversity and soil health that the market does not sufficiently incentivise.
Last month European football’s governing body, UEFA, announced that English champions Manchester City had been fined 30 million Euros and banned from the Champions League – the most illustrious competition in European football. The Adjudicatory Chamber of UEFA’s Club Financial Control Body (CFCB) handed down a two-year ban on the basis that Man City had breached Financial Fair Play Regulations. The club have responded fiercely, complaining of a ‘prejudicial process’ and alleging that the case was ‘initiated by UEFA, prosecuted by UEFA and judged by UEFA.’ Against this background it is thought likely that City will rely on human rights arguments in their appeal to the Court of Arbitration for Sport (a somewhat ironic development in the view of some commentators given previous criticisms of the human rights records of the club’s backers).
This blog post will set out the requirements of independence and impartiality under article 6 of the European Convention on Human Rights (ECHR) in the context of sports disputes, particularly in light of the recent ruling in Ali Riza and Others v Turkey (no. 30226/10, ECHR 28 January 2020). See
Following his excellent exploration of the interface between human rights and the quarantine and movement restrictions adopted in response to Covid-19, biolaw expert Niall Coghlan kindly agreed to come on our podcast and expand on the subject. Whilst we have made every effort to get this episode on air as soon as possible, there are bound to be further laws and decrees being rolled out. References to the relevant Italian laws, the Latvian derogation and others can be found in Niall’s post of 17 March. Here are references to the most recent developments.
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