The Round Up: Terrorism, the Parole Board, and… Covid-19

30 March 2020 by

Conor Monighan brings us the latest updates in human rights law

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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.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are also now in force. They replace the hastily drafted Health Protection (Coronavirus, Business Closure) (England) Regulations 2020. In summary, the new regulations provide for:

  • The closure of non-essential premises (Regulation 5)
  • Restrictions on movement, reflecting the Government’s lockdown policy (Regulation 6)
  • Restrictions on gatherings of two or more people (Regulation 7)
  • Penalties for non-compliance (Regulation 10)
  • Enforcement of these measures by the police. Regulation 8 gives the police a broad power to take “any action as is necessary to enforce any requirement imposed by regulation 4, 5, or 7”.

The regulations are limited to England and expire in six months’ time. A useful overview of the regulations is available here.

In Other News….

  • There have been a number of changes to help courts manage the disruption caused by Covid-19. Most jury trials have stopped and no new criminal trials are starting. The Chief Coroner has released guidance which states coroners’ courts should open for “urgent and essential business only”. Similarly, the Court of Protection’s Vice-President has said that physical hearings should not take place unless there is a genuine urgency and it is not possible to conduct a remote hearing. All courts are making much greater use of technology, and the Lord Chief Justice has said that hearings “requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety”. However, some have already pointed out that video hearings can disadvantage parties, especially if they have vulnerabilities or mental health problems. It is also notable that video hearings are likely to mark a derogation from the principle of open justice.
  • The Government is considering using people’s mobile phone data to fight coronavirus. Under the proposals, the government would use anonymous location data to understand whether lockdown rules are being obeyed by the public. The Information Commissioners’ Office (“ICO”) appeared to support the move. It stated that where phone “data is properly anonymised and aggregated, it does not fall under data protection law because no individual is identified”. More generally, the ICO has indicated that it will take a ‘pragmatic’ approach to the use of personal data by public authorities in relation to the current crisis. As the Guardian has noted, governments in other nations have gone much further. In China, for example, infected people are required to download a smartphone app so that their movements can be tracked. (More here).
  • A number of police forces have attracted criticism for their behaviour in relation to the virus. The most prominent example is probably Derbyshire police, who tweeted footage taken by a drone in the Peak District. The force suggested it had cross-referenced the number plates of parked vehicles and noted that some cars were registered to addresses 30 minutes away. The force said it was simply trying to show that the government’s guidance was not being complied with. Organisations such as Big Brother Watch and Liberty have spoken out against such behaviour, describing it as “chilling”. (More from the Guardian here).

In the Courts:

  • Elgizouli v Secretary of State for the Home Department: This case concerned the Home Secretary’s decision to provide the US with information relating to an alleged terrorist. The appellant argued that it is unlawful to supply evidence to a foreign state which would facilitate the imposition of the death penalty. A majority in the Supreme Court rejected this, holding that the legal principle claimed by the appellant did not exist in common law. Lord Carnwath noted that legal developments in relation to the death penalty historically came from Parliament and the ECHR, not domestic courts. Lord Reed and Lord Hodge agreed, holding that any such change would not represent an incremental change in the common law. Lord Kerr, by contrast, argued the common law should protect individuals who find themselves in the appellant’s position. The appellant’s second argument was more successful. It submitted that the Respondent’s decision was unlawful because it breached the requirements of Part 3 of the Data Protection Act 2018. The Act states that personal data should only be transferred for law enforcement purposes if: an adequacy decision has been made by the European Commission, or adequate safeguards were put in place, or there are special circumstances. Given that none of these criteria were fulfilled, the Supreme Court held that the Home Secretary’s decision to supply information to the US was unlawful.
  • Morris, R (on the application of) v The Parole Board & Anor: The applicant challenged the Parole Board’s refusal to release him from prison. The applicant’s first argument was that the Board’s decision was procedurally unfair, resulting in a breach of Article 5(4) ECHR and/ or the common law. The High Court noted that when the Parole Board decides whether to release someone the need to protect the public is paramount. The court ruled that it was proper for allegations of assault and harassment to be taken into account when the Board made its decision. As the High Court said in DSD, “there is no implied limitation on the nature or temporal character of the information the Parole Board may take into account in assessing risk”. It was not the case that the Board could only take into account allegations which had been proven to a civil/ criminal standard. The applicant’s second argument was that there were flaws in the Secretary of State for Justice’s Guidance to the Board about how to deal with allegations. It was argued that the Guidance encourages reliance on ‘speculations’, rather than proven allegations. The court rejected this argument on largely the same basis as the previous submission.
  • Luton Community Housing Ltd v Durdana: The appellant claimed that the respondent had failed to comply with its duties under s.149 Equality Act 2010 when applying for an order for possession. This was because it had not considered what impact a possession order would have upon the appellant and her child. The Court of Appeal held that there had been a breach of s.149, not least because the decision maker was ignorant of what was required by the public sector equality duty. In this respect it agreed with the trial judge. However, the trial judge should have then asked herself whether it was highly likely that the appellant’s decision would not have been substantially different had it complied with s.149 (see Aldwyck Housing Group Ltd v Forward Ltd). The Court of Appeal ruled that, even if due regard had been given to the public sector equality duty, it was highly likely the same decision would have been reached. The appeal therefore failed. Finally, the Court of Appeal emphasised that the public sector equality duty only requires public bodies to have ‘due regard’ to the need to advance equality of opportunity. The duty does not require public bodies to reach a certain outcome.

On the UKHRB

  • Richard Mumford has written an article describing how Covid-19 has affected Coroners’ courts.
  • Daniel McKaveney explained how Children’s Rights in Scotland will be strengthened by incorporating the United Nations Convention on the Rights of the Child into Scottish law.
  • Charlotte Gilmartin examined Uddin v The Secretary of State for the Home Department, which concerned Article 8 in relation to foster care.

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