Leviathan unshackled?

10 April 2020 by Dominic Ruck Keene

The response to the Covid-19 pandemic by governments across the world has thrown into sharp relief the fact that at a time of crisis the institutions and functions of Nation States are still the key structures responsible for the most basic duty of protecting their citizens’ lives.  In the United Kingdom, the recent weeks have seen interventions by the Government in the economy and in the freedom of movement that are commonly seen as unparalleled in the post 1945 era.

At present questioning and challenging the necessity and scale of those interventions, as well as how they are implemented in practice, has very largely been restricted to the media, rather than through the courts. However, that will not necessarily last. Indeed a pre-action letter has already been sent on behalf of two families with autistic children whose conditions necessitate them leaving the house more than once a day for their own well-being, requesting a reconsideration of the policy that people are only allowed to leave their house for exercise once.

The nature and breadth of the government’s actions touch effectively the entire population to a greater or lesser degree, and involve decisions affecting so many aspects of daily lives. This of course means that judges are likely to be highly sensitive to the dangers of perceived attempts to use the courts to intervene inappropriately in highly complex matters of scientific, health and economic policy. This is in particular likely to be so given the pre-existing debate on whether there is an issue over judicial activism and a requirement to limit judicial review.

Nevertheless, there are a number of groups of key Supreme Court judgments that may indicate potential areas of tension between the need to allow the Executive the greatest possible discretion within the law to address the novel type of crisis currently before it, and the ‘rule of law’ taken at its broadest.

The role of the courts generally

The first collection of cases is those dealing with the general principle that even in a crisis and even where issues are ‘political’ the courts still have a role to play:

As stated by the House of Lords in R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295:

“There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals … The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament…”

Similarly, in R (Miller) v Prime Minister[2019] UKSC 41, the Supreme Court emphasised that:

“…although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries… the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts…”

Conversely, there have also been clear statements as to the limits of the power of the courts, in particular, through challenging Parliamentary sovereignty as expressed in the passing of statutes and statutory instruments – in this context the Coronavirus Act 2000 and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. For example, in R (Miller) v Secretary of State for Exiting The European Union[2017] UKSC 5:

“..in the broadest sense, the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts. That is why and how these proceedings are being decided. The law is made in or under statutes, but there are areas where the law has long been laid down and developed by judges themselves: that is the common law. However, it is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament.

This is because Parliamentary sovereignty is a fundamental principle of the UK constitution…. It was famously summarised by Professor Dicey as meaning that Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.”

It is worth noting that the Government has chosen not to derogate from the ECHR under Article 15. Nevertheless, on 25 March 2020, Hayden J. held in BP v Surrey CC [2020] EWCOP 17 that

“It strikes me as redundant of any contrary argument that we are facing “a public emergency” which is “threatening the life of the nation”, to use the phraseology of Article 15. That is not a sentence that I or any other judge of my generation would ever have anticipated writing. The striking enormity of it has caused me to reflect, at considerable length, before committing it to print. Article 5 protects the fundamental human right both to liberty and, it must be emphasised, to security. It requires powerful reasons to justify any derogation. Those reasons must be confirmed on solid and compelling evidence before any court finds them to be established. The spread of this insidious viral pandemic particularly, though not uniquely, threatening to the elderly with underlying comorbidity, establishes a solid foundation upon which a derogation becomes not merely justified but essential.”

Unlawful detention

The second group consists of cases concerning common law unlawful detention or false imprisonment. The context here is the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 that provide:

“6.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse” and gives a non exhaustive list of reasonable excuses.

The core principles concerning unlawful detention were very recently considered in R (Jollah) v SSHD [2020] UKSC 4, where the Supreme Court considered whether a curfew imposed for immigration purposes amounted to imprisonment. The SSHD argued that imprisonment requires constraint on a person’s freedom of movement, usually by physical or human barriers, such as locked doors or guards. Voluntary compliance with a request or instruction was not enough. In the case of the Claimant in Jollah, the SSHD argued that he had not been locked into his house, there were no guards to prevent his leaving, and there were no other way in which he was physically prevented from leaving home. The Supreme Court disagreed and defined false imprisonment at [24] as an act of a defendant that directly and intentionally causes the confinement of a claimant within an area delimited by the defendant –

“The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process… The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not.”

In principle in light of Jollah, the Coronavirus ‘lockdown’ potentially does equate to ‘detention’ for those required to remain at home unless they have ‘reasonable excuse’ to leave – this is likely to lead close judicial scrutiny as to the extent to which the policy and practice is consistent with the legislative authority for that detention. See further Robert Craig’s article on this Blog on whether the Regulations are ultra vires – Lockdown.

Further, in R (DN- Rwanda) v SSHD[2020] UKSC 7 the Supreme Court also rejected the idea of a ‘pragmatic and empirical’ approach being applied when reviewing the legality of decisions to detain as an unacceptable approach when considering the available defences to a common law tort as “well-established and fundamental as that of false imprisonment.”

It is worth remembering that in R (Hemmati) v SSHD [2019] USKC 56 the Supreme Court emphasised that a purported lawful authority to detain may be impugned either because the defendant has acted in excess of jurisdiction or because the jurisdiction has been wrongly exercised. Both species of error render an executive act ultra vires, unlawful and a nullity. There is no difference between a detention which is unlawful because there was no statutory power to detain and a detention which is unlawful because the decision to detain, although authorised by the statute, was made in breach of a rule of public law.

Lastly, although 8 years old, the Supreme Court’s decision in R (Lumba) v SSHD [2012] 1 AC 245 is still of critical importance to questions of unlawful detention in particular as to whether decisions either to detain or to enforce detention are potentially made in breach of public law. As Lord Dyson emphasised:

“It is not in dispute that the right to liberty is of fundamental importance and that the courts should strictly and narrowly construe general statutory powers whose exercise restricts fundamental common law rights and/or constitutes the commission of a tort.”

Further, Lord Dyson held both that policies concerning detention must be consistently applied, and a public policy must be followed unless there are good reasons for not doing so. In addition is a right to know what the currently existing policy is:

“The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised…What must… be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”

This will potentially be relevant if there are challenges arise out of any alleged inconsistency in the different approaches adopted by various police forces or from any alleged lack of clarity as to what constitutes a ‘reasonable excuse’ – such as whether travelling to take exercise is a reasonable excuse. While the idea of ‘reasonable excuse’ is a known concept in criminal law, from e.g. firearms legislation, there have been a number of commentators (such as Lord Sumption) who have argued that there has been a gap between the level and type of detention authorised under the Regulations and that being enforced by the police acting under various forms of guidance from Ministers.

Article 2

The third group of cases is those concerning the obligations under ‘the operational duty’ limb of Article 2 by which in certain circumstances the State can be required to take reasonable preventative operational measures to safeguard lives of those within its jurisdiction against real and immediate risks to life. Breaches of that duty can be a result of ‘systemic’ or ‘operational’ failings. The positive obligations are engaged in context of any activity, whether public or not, in which the right to life may be at stake: Öneryıldız v. Turkey(Application no. 48939/99). As noted, for example, by Lord Dyson in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, the ECtHR has identified a number of different circumstances in which such an operational duty can require:

“No decision of the ECtHR has been cited to us where the court clearly articulates the criteria by which it decides whether an article 2 operational duty exists in any particular circumstances. It is therefore necessary to see whether the cases give some clue as to why the operational duty has been found to exist in some circumstances and not in others. There are certain indicia which point the way. As Miss Richards and Mr Bowen submit, the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control). The paradigm example of assumption of responsibility is where the state has detained an individual, whether in prison, in a psychiatric hospital, in an immigration detention centre or otherwise. The operational obligations apply to all detainees, but are particularly stringent in relation to those who are especially vulnerable by reason of their physical or mental condition…”

“When finding that the article 2 operational duty has been breached, the ECtHR has repeatedly emphasised the vulnerability of the victim as a relevant consideration. In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, such as where a local authority fails to exercise its powers to protect a child who to its knowledge is at risk of abuse as in Z v United Kingdom (2001) 34 EHRR 97 . It is not relevant for the present purposes that this was a complaint of breach of article 3 rather than article 2 .

A further factor is the nature of the risk. Is it an “ordinary” risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk? Thus in Stoyanovi v Bulgaria (Application No 42980/04) (unreported) given 9 November 2010, the ECtHR rejected an application made by the family of a soldier who died during a parachute exercise. At paras 59–61, the court drew a distinction between risks which a soldier must expect as an incident of his ordinary military duties and “‘dangerous’ situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards”. An operational obligation would only arise in the latter situation.” [Emphasis added]

In the context of the lockdown, it is worth noting that in Rabone itself, Lord Dyson held that an informally admitted psychiatric patient was within the scope of the Article 2 operational duty held that:

“She had been admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The trust assumed responsibility for her. She was under its control. Although she was not a detained patient, it is clear that, if she had insisted on leaving the hospital, the authorities could and should have exercised their powers under the MHA to prevent her from doing so. In fact, however, the judge found that, if the trust had refused to allow her to leave, she would not have insisted on leaving. This demonstrates the control that the trust was exercising over Melanie.”

Further, the ECtHR has also expanded the potential scenarios to include responsibility for dangers “for which in some way the state is responsible.” In Watts v United Kingdom [2010] 51 EHRR SE 66 , the applicant complained that her transfer from her existing care home to another care home would reduce her life expectancy. The court held that a badly managed transfer of elderly residents of a care home could well have a negative impact on their life expectancy as a result of the general frailty and resistance to change of older people.

In the context of environmental disasters over which States have no control, the obligation of the State to take preventive operational measures comes down to adopting measures to reinforce the State’s capacity to deal with the unexpected and violent nature of natural phenomena in order to reduce their catastrophic impact to a minimum: M. Özel and Others v. Turkey (Application no 14350/05).

The relevance of Article 2 in the context of Coronavirus potentially lies in three areas:

(1) in general whether prior to 2020 the State took appropriate measures in light of its actual or constructive knowledge to deal with the potentially catastrophic impact of a pandemic such as Coronavirus;

(2) specifically whether appropriate planning and procurement was implemented prior to the onset of the pandemic with respect of the provision of PPE to NHS and other ‘frontline’ key workers. This is leaving aside any overlapping common law duties on employers to provide safe places and systems of work. In this context the claims brought against the MOD over the provision of appropriate equipment to servicemen in Iraq and Afghanistan are potentially highly relevant. See the reference in Smith v MOD [2013] UKSC 41 to both the systemic and operational duties in principle possibly applying to the procurement of protective military equipment;

(3) with particular regard to those groups who are likely to be a heightened risk as a result of being in ‘detention’ during any lockdown (such as victims of domestic abuse or those suffering from mental or physical health conditions which may deteriorate as a result of confinement), whether appropriate measures have been taken in light of any identifiable real and immediate risk to life.

Assumption of Responsibility

The final cases potentially relevant to the State’s duties during the Coronavirus crisis are those dealing with assumption of responsibility.

As recently re-iterated in CN v Poole BC[2019] UKSC 25, when considering whether a public authority has assumed a common law duty by doing what it is authorised or required to do under a statute, that duty has to arise out of the consequent relationship between the public authority and the individual. The Supreme Court held that the necessary assumption of responsibility could arise out of conduct undertaken in the performance of an obligation, or the operation of a statutory scheme, which included the custody of prisoners. Further,

“…a public body which offers a service to the public often assumes a responsibility to those using the service. The assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care…

…the concept of an assumption of responsibility is not confined to the provision of information or advice. It can also apply where, as Lord Goff put it in Spring v Guardian Assurance plc , the claimant entrusts the defendant with the conduct of his affairs, in general or in particular. Such situations can arise where the defendant undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express, but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such car.”

In respect of those vulnerable individuals who the Government has advised to remain self isolated for 12 weeks and indicated that it will ensure they are provided with medical and food supplies, it could be argued that those individuals would reasonably rely on those promises of support and that there has been an ‘assumption of responsibility’ towards them such that there is a duty of care on the relevant departments to ensure appropriate support is given.