The Weekly Round-Up: rising Covid-19 cases and constitutional concerns

21 September 2020 by Alethea Redfern

In the News:

The Joint Committee on Human Rights has published a report which proposes that the Government must urgently consider the human rights implications of its Covid-19 measures.

The report drew attention to eight problem areas, claiming:

• The Lockdown Regulations had not been made sufficiently clear to members of the public, and more care was needed to distinguish between advice, guidance and the law. People had paid fixed penalty notices of up to £10,000 in circumstances where the police “do not fully understand their powers” and there was no realistic appeal or review procedure.
• Health and Care criticisms include that the allocation of PPE may have been discriminatory, the imposition of blanket “do not resuscitate” policies in care homes was unlawful, and hospital admissions policies were ageist.
• Detention continues to be an area of acute concern, with blanket bans on prison visits “incompatible to the right to family life”, and a call for inspections to resume as soon as possible to avoid human rights abuses.
• Contact Tracing raised ongoing privacy issues, also the Government’s decision to stop the centralised model in favour of a decentralised model was welcomed.
• Children and the right to education had been impacted differently by school closures depending on socioeconomic factors and special educational needs and disabilities.
• Access to justice had been limited during the pandemic, and the report called on the Government to ensure that lack of access to technology would not lead to disadvantaged persons being digitally excluded from the justice system.
• An interim review into deaths from Coronavirus was recommended to discharge the UK’s procedural obligations under article 2.
• Accountability and scrutiny of Government powers under the Coronavirus Act was insufficient. The report called for new provisions to be subject to parliamentary debate and approval. In addition, it stressed that major announcements should be made to Parliament rather than through news channels or other press briefings, especially when human rights were engaged.

The report’s publication comes as Covid-19 cases rise, forcing Boris Johnson to confront a bleak choice.

Opposition to new measures from Tory MPs, human rights groups and some portions of a beleaguered British public is mounting. Rishi Shunak and Alok Sharma, business secretary, have warned that another lockdown would be an economic calamity. At the same time, pressure builds from scientific advisers, including Chris Whitty, chief medical officer, and Patrick Vallance, chief scientific adviser, urging measures now to avoid deaths and disruption later.

But the report’s concerns about government accountability under the Coronavirus Act 2020 are shared by commentators across the political spectrum. When the government tries to renew the Act on 30 September, Sir Graham Brady, chair of the 1922 committee, will seek an amendment requiring MPs to vote on future measures to control the virus, to prevent “draconian restrictions on personal liberty and economic life [being] introduced without proper scrutiny.”

His concerns are shared by Lady Hale, former president of the supreme court, who says parliament “surrendered” its role over emergency laws restricting freedoms amid the coronavirus pandemic. In the same vein, FT columnist and lawyer David Allen Green criticised courts’ deference to the executive during emergencies for “leaving those adversely affected with no remedy.” So far, the UK has avoided a constitutional crisis, he writes. But the pandemic has revealed, more than ever, that “the constitution of the country is in a damaged and precarious condition.”

Emergency measures were viewed as necessary when the nation was first trying to survive the virus. Now, as we learn to live with it in the long-term, resistance to those measures is on the rise.

In the Courts

With the UK courts in recess, there are very few reported judgments this week. However, there are some noteworthy judgments from the European Court of Human Rights:

• Kotilainen and Others v. Finland [2020] ECHR 635: this case concerned complaints about failures by Finnish authorities to protect the lives of the ten victims of a 2008 school shooting in the town of Kauhajoki. The ECHR held, by six votes to one, that there had been a violation of article 2 (right to life) due to the authorities’ failure to observe their duty of due diligence and seize the killer’s weapon before the attack. The police had seen post online by the shooter and interviewed him prior to the attack, but decided against confiscating his weapon. Unanimously, however, there had been no violation of article 2 over the investigation after the attack. Judge Eicke expressed a dissenting opinion.
• Grubnyk v. Ukraine [2020] ECHR 636: this case concerned a Ukrainian national who was arrested and detained in connection with a series of terrorist attacks at a time of great tension in Odessa. He claimed he had been arrested without a prior court decision, without being given reasons, and without the option of bail due to the nature of his offences. The court unanimously found that there had been no violation of articles 5(2) and (3) (right to liberty and security), two violations of article 5(1), and a violation of article 6(2) because his initial pre-trial detention order stated he was guilty of a “grave offence” before he had been convicted of one. The ECHR considered that the finding of violations constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
• Aggerholm v. Denmark [2020] ECHR 628: the applicant, who suffered from paranoid schizophrenia and had violent tendencies, was strapped to a restraint bed for almost twenty-three hours in a psychiatric hospital. The ECHR held that this was not strictly necessary and not respectful of his human dignity, and therefore that there had been a violation of article 3, which prohibits inhuman or degrading treatment or punishment. The applicant was awarded damages and costs.

On the UKHRB  

• In the latest episode of Law Pod UK, Professor Catherine Barnard of Cambridge University comments on the transition period towards Brexit since we formally left the EU.
• Euan Lynch focuses on the Lord Justice Clerk Lady Dorrian’s comments in a recent case, which cast doubt on the existence of a common law right to privacy in Scotland.
• Dr Sean Molloy criticises the UK Government’s decision to propose the controversial UK Internal Market Bill, and sets out a number of reasons why it ought not flout international law.
• David Hart QC outlines proceedings recently started in the ECHR by six Portuguese citizens against 33 Council of Europe countries for failing to address climate change.
• Rafe Jennings summarises the CJEU’s ruling, in a first for the regulation, that zero tariff contracts contravene net neutrality regulations.