The Round Up: Police State Debates and Post Office Delays
7 April 2020
In the News
In the past week, Covid-19 has once again dominated the news, effectively occluding all other topics. Given that Monday evening saw leaders including Emmanuel Macron, Michel Barnier, Donald Trump and Sir Keir Starmer expressing their hopes for Boris Johnson’s swift recovery after his sudden removal to intensive care, this dominance does not seem disproportionate.
Among legal commentators, the focus has been on the Coronavirus Bill 2020. The regulations, to which the United Kingdom became subject on 26 March, are the most severe restrictions ever imposed on liberty in this country, going far beyond the wartime measures in the Defence of the Realm Act 1914 and the Emergency Powers (Defence) Act 1939. But most accept that they are also vital to the global fight against the virus.
Perhaps the most prominent figure among those who do not appear to accept the measures as necessary is former Supreme Court judge Lord Sumption, who warned a week ago, before the legislation came into force, that the UK was in danger of becoming a “police state.”
Since his statement, the first Covid-19 convictions have begun to come through the courts. A man who coughed on a police officer, threatened to bite him, and claimed to have the virus was convicted of assaulting an emergency worker and jailed for six months. A man who boasted on social media of visiting a hospital without a medical reason was jailed for 12 weeks after he pleaded guilty to causing a public nuisance and admitted breaking the emergency restrictions. Perhaps most significantly, British Transport Police admitted to incorrectly charging a woman under the Act; the woman was detained for two days and fined £660. Meanwhile, a solicitor representing a 17-year-old arrested for gathering with five others attacked the “ridiculous” decision to bring multiple defendants into court in custody, thereby exposing a substantial number of other people to the risk of contracting the virus.
Other lawyers have since echoed Sumption’s warning, including the head of serious and general crime at Hickman & Rose solicitors.
In contrast, Professor Jeff King has published a two-part article on the UK Constitutional Law Association (“the UKCLA”) blog entitled “The Lockdown is Lawful,” in which he asserts that he is satisfied that the lockdown legislation is fundamentally compatible with human rights principles.
Shortly afterwards, lawyer and journalist David Allen Green claimed the same blog had refused his offer to write a response criticising the regulations, and stated UKCLA were “not showing the true breadth of the current constitutional concerns.” However, he also said he was satisfied, for the time being, that the required debate was taking place on other blogs and sites. In particular, Tom Hickman QC, Emma Dixon and Rachel Jones argued on the Blackstone blog that a “plausible” defence of the legal basis for the regulations could be mounted before a sympathetic court, but suggested respects in which they could be “tightened, reinforced and improved to enhance legal certainty and civil liberty.” In addition, Robert Craig’s response to Professor King on this blog went further still, concluding that “the legal underpinnings of the provisions are so thin it is difficult to see how their vires can remain unquestioned.”
A few months ago, it was already a stock observation that the political upheavals of the past few years would make their way into constitutional law textbooks. As a new debate begins, it seems the books have more amendments in store.
In Other News
- Among the important items of news which have been overshadowed by the virus recently is the publication of the long-awaited “Windrush: Lessons Learned Report” published on 19 March. It is available in full here. Among other findings and recommendations, the report called on the government to provide an unqualified apology to those affected, found that misconceptions and ignorance on race contributed to the scandal, suggested some Windrush victims remain vulnerable to homelessness and unemployment due to Home Office policies, and stated the Home Office’s ‘target-dominated’ work environment fostered defensiveness and a lack of empathy.
- In addition, the Post Office has used the outbreak to justify delaying the launch of a scheme to independently assess applications from current and former postmasters who believe they experienced shortfalls related to previous versions of its computer system Horizon. A spokesperson said that the Post Office’s “immediate focus is to prioritise support for our postmasters through the current coronavirus health crisis.” Postmasters were prosecuted and imprisoned after the Horizon accounting system allegedly showed their branches to be in deficit. Others were fired, lost their homes, suffered ill health, declared bankruptcy, or committed suicide. The scheme was promised after the Post Office paid a landmark £57.75 million settlement late last year after more than 550 claimants brought legal action. The settlement was finally reached after an appeal was rejected by Lord Justice Coulson in a searing judgement, in which he stated that the appeal was based on the premise that the Post Office “was not obliged to treat [postmasters] with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner.”
In the Courts
- Whittington Hospital NHS Trust v XX  UKSC 14: by a majority, the Supreme Court dismissed an appeal against the Court of Appeal’s decision to award a claim for the costs of commercial surrogacy and the use of donor eggs, after a series of negligent cervical smears and biopsies failed to detect the claimant’s cervical cancer before it was too far advanced for her to retain the ability to bear her own child. This was in spite of the fact that commercial surrogacy arrangements are banned in the UK under s2(1) of the Surrogacy Arrangements Act 1985. Lord Carnwarth dissented on the basis that it would go against the broad principle of legal coherence for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. A full summary can be found here.
- Barclays Bank plc v Various Claimants  UKSC 13: the Supreme Court unanimously allowed Barclay’s appeal against the decision that it is vicariously liable for 126 sexual assaults allegedly committed between 1968 and 1984 by the late Dr Gordon Bates, a self-employed medical practitioner whose work included conducting medical assessments of prospective Barclays employees. The Court held that, since Dr Bates was an independent contractor and not a Barclays employee, it cannot be held liable for his wrongdoing. A full summary can be found here.
- WM Morrison Supermarkets plc v Various Claimants  UKSC 12: the Supreme Court unanimously allowed an appeal against a decision that the appellant was vicariously liable for a disgruntled employee’s deliberate decision to upload payroll data for the appellant’s entire workforce to a publicly accessible filesharing website, in breach of the Data Protection Act 1998. The Court held that, since the employee was not engaged in furthering his employer’s business, but was rather pursuing a personal vendetta, the “close connection” test was not satisfied, and so the employer was not liable.
- The Secretary of State for the Home Department v FTH, R. (On the Application of) (Rev 1)  EWCA Civ 494: the Court of Appeal allowed an appeal against the Upper Tribunal decision that the “expeditated process” employed by the Secretary of State, in her attempt to deal with children in the Calais refugee camp who refused to make asylum applications in France and claimed to have close relatives in the UK, had breached article 8. The Secretary of State had breached her common law obligations of procedural fairness due to deficiencies in the expedited process, but not article 8. The Court restricted the tribunal’s declaration to reflect this decision, and quashed an order for the Secretary of State to pay damages, since damages were dependent on a finding that she had been in breach of article 8.
On the UKHRB
- Guest contributor Robert Craig analyses some of the restrictions on movement of individuals announced by the government, arguing that they raise serious constitutional concerns.
- Gideon Barth asks what the issues at inquests into deaths in custody from Covid-19 are likely to be.
- Robert Kellar QC provides an overview and assessment of the recent decision of the Supreme Court in Barclays Bank v Various Claimants  UKSC 13.
- William Edis QC assesses the Supreme Court’s decision to hold a defendant hospital liable for the costs of a commercial surrogacy arrangement in Whittington Hospital NHS Trust v XX  UKSC 14.
- Dominic Ruck Keene offers an assessment of R (DN – Rwanda) v Secretary of State for the Home Department  UKSC 7, in which the Supreme Court held the Claimant was entitled to pursue a claim for unlawful detention.
- In the first post of a two-part series, Darragh Coffey explores why the Coronavirus Act 2020 was considered necessary, and outline some general aspects of the Act.
- Rosalind English summarises the decision of the Supreme Court in WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents)  UKSC 12, concerning vicarious liability in relation to breaches of the Data Protection Act 1998.