Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic — Paul Bowen QC

4 May 2020 by

This article first appeared on the UK Constitutional Law Association blog — the original can be found here.

Article 2 ECHR

As we watch the Covid-19 pandemic unfold our attention is naturally on the steps that HM Government (‘HMG’) is taking to mitigate the immediate crisis.  The time is approaching, however, when it will be necessary to evaluate HMG’s preparation for, and response to, the pandemic.  Calls are being made by the TUC and doctors’ groups for a public inquiry into one aspect of its response, namely failures to procure adequate personal protective equipment (‘PPE’) for NHS staff, at least 100 of whom are believed to have died having contracted the virus while treating patients.  HMG is accused of failing to respond to a national exercise in 2016 testing the UK’s resilience to a similar flu pandemic which highlighted an increased need for ventilators.  Other criticisms go further.  This blog argues that the state owes a duty under Article 2 of the European Convention on Human Rights to investigate some deaths caused by Covid-19.  This duty will require not only inquests into individual deaths but also a public inquiry under the Inquiries Act 2005 to address those systemic issues not suitable for determination by an inquest.  The post builds on and responds to posts by Conall MalloryJames Rowbottom and Elizabeth Stubbins Banes.  It also foreshadows the need for reform in this area.

When an Article 2 investigative duty arises.  

An investigative duty arises when the state may be in breach of one its substantive duties under Article 2, whether its negative duty not to take life or one of its positive duties to protect life.  These positive duties are four-fold: first, a primary duty to put in place a legislative and administrative framework designed to provide effective protection for the right to life (a ‘law-making duty’); second, to have systems in place to safeguard against certain risks to life in settings where they are likely to eventuate (a ‘systems duty’); third, a duty to provide information to individuals who are or may be at risk to their life (an ‘information duty’); and, fourth, a duty to take operational measures to safeguard a specific individual or individuals against risks to their life which are ‘real and immediate’ and of which the authorities are, or ought to be, aware (an ‘operational duty’, first recognised by the European Court of Human Rights (‘ECtHR’) in Osman v United Kingdom, para 115).  Positive duties of the fourth kind have been found to require a state to take steps to protect individuals from, among others, the criminal acts of third parties; environmental pollution; acts of self-harm; and the consequences of naturally occurring disease.  A potential breach of one of these duties may not only trigger a duty to investigate but will also found a cause of action which, if established, will require a remedy under the Human Rights Act 1998 (‘HRA’).

These positive duties are far-reaching, although the courts have imposed restrictions on their application.  First, an operational duty may only be owed to those who are particularly vulnerable or for whom the state has assumed responsibility, such as healthcare duties to prisoners and other detainees: Rabone v Pennine Care NHS Trust, (SC) [22-23].  Second, the ECtHR has excluded, apparently on policy grounds, any operational duty arising in two particular contexts: the training and deployment of volunteer servicemen and the provision of healthcare in ordinary healthcare settings.  As to the first, although states owe a law-making duty and a systems duty to servicemen, no operational duty is owed to protect against risks to life which a soldier must expect as an incident of his ordinary military duties: Stoyanovi v Bulgaria, [59-61], Rabone, [24]; Smith v MOD (No 2), (SC) [72].  To similar effect, the ECtHR has excluded operational obligations arising in the context of the provision of healthcare, at least in ordinary settings, so that a death caused by ‘mere’ negligence will not constitute a breach of Article 2 (Powell v UK).  A third limitation is the high threshold to establish a breach, namely that the state has struck a disproportionate balance between the individual’s rights and the wider interests of the community.  In assessing whether there has been an unlawful breach the courts will accord the state a wide margin of appreciation (Smith v MOD (No 2), [61, 76]), although it is not necessary to show that the state has ‘wilfully disregarded’ its duties or acted with ‘gross negligence’ (Osman, [116]).

Whether an Article 2 investigative duty arises in the context of the Covid-19 pandemic

Notwithstanding these limitations, each of the four positive Article 2 duties are engaged in the context of the current crisis.  HMG is under a law-making duty to all citizens to adopt an appropriate regulatory and administrative response to the pandemic.  Decisions about, for example, whether, how and when to introduce lockdown and social distancing measures will engage this first duty.  HMG and the NHS owe a systems duty which may require the procurement, in advance, of adequate medical supplies (such as ventilators) and PPE for NHS and other care staff.  HMG will also be under a duty to inform the public, and particular categories of the public, of risks to life of which it is aware so that individuals may take steps to avoid or mitigate those risks.  HMG, the NHS and other public bodies may also owe an operational duty to protect certain categories of employee and patient at risk of death from Covid-19, but this is likely to be limited to those for whom the state has assumed particular responsibility such as NHS employees, prison staff, prisoners and other detainees.  A failure to procure or provide adequate PPE could breach both the systems and the operational duty, in addition to being a breach of the statutory health and safety duties owed by all employers.  In Brincat v Malta, for example, the Maltese authorities’ failure to provide adequate protection to shipworkers exposed to asbestos, including adequate protective equipment (face masks), breached each of the states’ law-making duty, its duty to inform and its operational duty under Article 2.  Conall Mallory in his blog points to Smith v MOD (No 2) in which the Supreme Court found that a failure to procure adequate protective equipment for soldiers on active duty, though capable of breaching the positive duty under Article 2, did not do so in relation to training and procurement that was ‘closely linked to the exercise of political judgment and issues of policy’ (per Lord Hope at [76]).  He suggests that the same approach would exclude the application of Article 2 to procurement decisions relating to PPE for NHS staff.  I would be cautious in reading across from the decision in Smith to the present context.  The ECtHR has limited the positive Article 2 duties owed to servicemen who have voluntarily assumed risks to life.  It has not done so in relation to doctors and nurses employed by the NHS who cannot be said to have voluntarily assumed the risk of infection by Covid-19 due to inadequate PPE.  I would therefore not exclude the application of the Article 2 duty even in relation to decisions about procurement that are ‘closely linked to the exercise of political judgment and issues of policy’.  Although a wide margin of appreciation would be adopted in assessing compliance, these are matters that properly fall within the courts’ purview.

Threshold for triggering the investigative duty. 

In summary, HMG and other public bodies may owe a range of Article 2 positive duties.  I do not suggest that there has, necessarily, been a breach of any of these duties.  The purpose of the investigative duty is to establish whether those positive duties have been met.  All that is required to trigger the investigative duty is an ‘arguable’ breach of one of the positive duties, i.e. one that is more than ‘fanciful,’ (R (Palmer) v. HM Coroner for the County of Worcestershire, (HC) [60]).  That is a low threshold.

Discharging the investigative duty (1): the minimum requirements. 

The investigative duty required by Article 2 may vary according to the circumstances but must be ‘effective’, which is ‘not an obligation of result, but of means’ (Ramsahai v Netherlands[GC], para 324).  It must, first, be capable of meeting the purposes of the Article 2 investigation: to ensure that the full facts are brought to light; to establish whether there has been a breach of the state’s positive duties; to identify those responsible; to enable lessons to be learned to prevent similar deaths in future; to alleviate public concern; and to provide the bereaved with an opportunity to understand how their relative has died and to have the satisfaction, at least, of knowing that lessons learned will make such deaths less likely in future: Öneryildiz v Turkey [GC], [94]; Amin, (HL) [31].  Second, it must meet certain minimum procedural requirements: the investigation must be commenced by the state, gather relevant evidence, be conducted by an independent body or individual with exemplary diligence and promptness, a sufficient element of public scrutiny and with effective involvement of a next-of-kin, which requires that families should be represented (and have public funding) at an Article 2 inquiry. 

Discharging the investigative duty (2): the inquest

Where the Article 2 investigative obligation arises it is ordinarily discharged in England and Wales by the Coroner’s inquest under the Coroners and Justice Act 2009.  Not every Covid-19 related death will require an inquest, however.  Covid-19 has been listed as a notifiable death under the Health Protection (Notification) Regulations 2010 which means it is notifiable to Public Health England as a ‘notifiable disease’.  Ordinarily, a death caused by a ‘notifiable disease’ would require an inquest, because by s 7(2)(c) of the 2009 Act such a death must be heard by a Coroner with a jury.  However, s 30 of the Coronavirus Act 2020 has abrogated the requirement for a jury for deaths caused by Covid-19.  The question arises, first, whether an inquest is required at all where death is caused by Covid-19 infection.  The Chief Coroner has produced Guidance to Coroners in relation the Coronavirus Act in which he states (emphasis added):

It is worth restating here that although COVID-19 is a notifiable disease under the Health Protection (Notification) Regulations 2010 that does not mean a report of death to a coroner is required by virtue of its notifiable status (the notification is to Public Health England), and there will often be no reason for deaths caused by this disease to be referred to a coroner.

While the italicised passage is doubtless correct, so far as it goes, it is important to recognise that many Covid-19 related deaths will require an inquest.  By s 1 and 6 of the 2009 Act a Coroner must conduct an inquest where they have reason to suspect that (among others) the deceased died an unnatural death or while in state detention.  Any Covid-19 related death in prison or other form of state detention will require an inquest.  Any other Covid-19 related death will require an inquest if it is an ‘unnatural death’, that is a ‘wholly unexpected death, albeit from natural causes’ which ‘results from some culpable human failure’: R (Touche) v Inner London North Coroner.  This test would be satisfied in circumstances where there is an arguable Article 2 breach.  Indeed, such an inquest would need to be wider in scope than an orthodox inquest, which is limited to answering the questions in s 5(1) of the 2009 Act of ‘who the deceased was’ and ‘how, when and where [he or she] came by his or her death.’  In an Article 2 inquest the Coroner must also determine the wider question of ‘in what circumstances the deceased came by his or her death’ (s 5(2)): Middleton (HL).   Legal aid (by way of exceptional case funding) should also be available for the family for such an inquest.

Also important is the Coroner’s power at the conclusion of an inquest to issue a Prevention of Future Death (‘PFD’) report under paragraph 7(1) of Schedule 5 of the 2009 Act to any person that may have power to take action to address an identified risk of similar future deaths.  The addressee of a PFD is required to respond in writing.  The PFD is ‘an important means by which the state discharges its investigative obligations under Article 2’: R (Lewis) v Mid and North Shropshire Coroner(CA), [39].

Discharging the investigative duty (3): Public inquiry

An inquest will not necessarily be sufficient to discharge the state’s Article 2 investigative obligation in relation to its Covid-19 response, however.  First, those Article 2 issues involving high level policy considerations such as the procurement of suitable protective equipment are not suitable for determination by an inquest.  As Lord Phillips observed in R (Smith) v MOD (No 1), [81], ‘An inquest can properly conclude that a soldier died because a flak jacket was pierced by a sniper’s bullet. It does not seem to me, however, that it would be a satisfactory tribunal for investigating whether more effective flak jackets could and should have been supplied by the Ministry of Defence.’ Second, an inquest can only examine single deaths or multiple fatalities arising from a single incident; it is unsuitable for determining systemic issues involving a large number of separate deaths with common features.  Third, an inquest cannot determine Article 2 issues involving serious illness or injury but which do not cause death, of which there will be many more in the present context: JL v Justice Secretary (HL).  A public inquiry will therefore be necessary under the Inquiries Act 2005. A failure by HMG to commission such an inquiry will itself be susceptible to judicial review (as in e.g. R (Litvinenko) v Secretary of State for the Home Department).

Post-script

The Covid-19 crisis presents an excellent example of the limitations of the current system for the investigation of multiple deaths involving potential systemic failures.  Inquests may not be suitable for determining some of the systemic issues; on the other hand, public inquiries can be costly and immensely time-consuming and do not enjoy some of the benefits of the inquest process, such as the use of juries. The scope for reform of the system to allow the streamlining of the various investigative strands – inquest, criminal investigation, public inquiry, civil proceedings – is currently under consideration by a JUSTICE Working Party, ‘When things go wrong’, chaired by Sir Robert Owen and of which the author is a member, which is due to report later this year.

Paul Bowen QC is a barrister at Brick Court Chambers and a visiting Professor at Sussex University School of Law and Politics

(Suggested citation: P. Bowen QC, ‘Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic’, U.K. Const. L. Blog (29th April 2020) (available at https://ukconstitutionallaw.org/))

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