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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.


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Making Sense of the Amended Lockdown Law

1 May 2020 by

As has been widely reported, not least on this blog, the ‘lockdown’ imposed by the UK Government to tackle the continuing pandemic is governed in the main by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) (the Original Regulations).

What has been less widely publicised is that the Original Regulations were recently amended by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447) (the Amending Regulations). These came into force at 11am on Wednesday 22 April 2020. 

As this could otherwise get confusing, I’m going to call the Regulations that are currently in force, i.e. the Original Regulations as amended by the Amending Regulations, the Current Regulations.

The Amending Regulations enact a number of changes to the lockdown law, some more consequential than others. This post does not go through the more insignificant changes in any great detail; for example, Amending Reg (4)(b)(iv) correcting the name of DWP in Original Reg 6(i)(iii) from “Department of Work and Pensions” to “Department for Work and Pensions”

What this post does instead is outline four of the changes provided for by the Amending Regulations in ascending order of importance.


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The Coronavirus lockdown does not breach human rights (Part One) — Leo Davidson

30 April 2020 by

Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.

In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.

In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.

Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.

Police officers enforce lockdown on Brighton beach. Image: The Guardian

Introduction

With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.

These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough.  As a matter of human rights law, however, they are lawful.  The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.

Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful.  The analysis is wrong, primarily because:

  1. It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
  2. In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
  3. The margin is particularly wide given the complex scientific evidence underlying the decision.

I address these three point in turn, below.


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A disproportionate interference: the Coronavirus Regulations and the ECHR — Francis Hoar

21 April 2020 by

The lockdown has been in place since 23 March. Image: The Guardian

This is a summary of an article published here and inevitably simplifies the detailed arguments and considerations within it.  The article represents the views of the author alone.

Note: This article involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.

The ‘lockdown’ imposed by the government to contain the coronavirus and Covid 19, the disease it causes has been enforced mainly through the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’), imposed under powers delegated by the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’).

Recently Lord Anderson QC, Robert Craig, Tom Hickman QC and others and Benet Brandreth QC and Lord Sandhurst QC have argued that the Regulations were or may have been ultra vires as secondary legislation beyond the delegated powers under Pt 2A of the 1984 Act.  In turn, Prof Jeff King has argued that the delegated powers were exercised lawfully.  It is the view of the author that the arguments against the vires of the legislation on that ground are more convincing. 

This article argues that the Regulations are also a disproportionate interference with the rights protected by the European Convention on Human Rights (‘the Convention’); and that, were they challenged by judicial review, should be disapplied if necessary to avoid a breach of s 6 of the Human Rights Act 1998.


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Derogation in the time of Coronavirus — Nicholas Clapham

15 April 2020 by

The flag of the Council of Europe

The Council of Europe has issued guidance to member states contemplating derogation from the European Convention of Human Rights during the coronavirus pandemic: Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States (SG/Inf(2020)11).

Derogation under the Convention is governed by Article 15 which states:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

A “public emergency threatening the life of the nation” is defined as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (Lawless v Ireland (No 3) App no 332/57 (A/3), [1961] ECHR 2).


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Lockdown: A Response to Professor King — Robert Craig

6 April 2020 by

A police officer enforces the lockdown in Greenwich Park. Image: The Guardian

Essential caveat

This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

In two recent posts for the UK Constitutional Law Association (here and here), Professor Jeff King has set out a focused analysis of key elements of the recent Regulations (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8)) that purport to place severe restrictions on the ability of ordinary citizens to leave the place where they are living.

Prof. King argues that these regulations are within the scope of the powers granted to make such Regulations under the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’) as amended. They were passed under the emergency procedure set out in s 45R which means they were not approved by Parliament due to the urgency of the situation.

In this post I make the contrary argument: that the Regulations go well beyond the powers under Part 2A of that Act.  I support this claim using only traditional vires arguments. It is also of course the case that the legality of these Regulations also falls to be determined by whether they violate the right to liberty under Article 5 ECHR, located in Schedule 2, Human Rights Act 1998. That issue warrants separate consideration, which I do not seek to undertake in this post.


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Supreme Court holds hospital liable for commercial surrogacy — William Edis QC

3 April 2020 by

Whittington Hospital NHS Trust v XX [2020] UKSC 14

The Supreme Court has held that a defendant hospital trust must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.

As a result of admitted negligence the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her amongst many other ghastly consequences of the repeated fault of the Trust.

Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant came from a large family and had always wished to have four children.  Her preference was to enter into a commercial surrogacy arrangement in the USA and she sought the cost of doing so as damages. She sought to use the stored eggs but also to rely on surrogacy with donor eggs fertilised by her husband’s sperm. The defendant argued that it should not have to pay damages to reflect the cost of UK surrogacy, the use of donor eggs and of the American commercial surrogacy.


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Injunctions against “Persons unknown” in public protests curtailed – Gareth Rhys

20 March 2020 by

Canada Goose UK Retail Ltd v Persons unknown and People for the Ethical Treatment of Animals (PETA) [2020] EWCA Civ 303 on appeal from [2019] EWHC 2459 (QB) – Gareth Rhys

All references in square brackets are to paragraphs in the Court of Appeal judgment

The Court of Appeal has articulated the guiding principles that apply when seeking interim and final relief against ‘persons unknown’ in cases of public protests. The decision will be regarded as a win for civil liberties organisations and activist groups given that the Court has greatly restricted the circumstances in which injunctive relief may be sought against unknown protesters. This case has distilled the jurisprudence following the decisions in Cameron v Liverpool Insurance Co Ltd [2019] UKSC 6 and Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515.

Background

Canada Goose is an international company that manufactures and sells clothing containing animal fur and down. They brought a claim in damages and injunctive relief against ‘persons unknown’ who protested the use of animal products outside Canada Goose’s Regent Street shop.


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Rights in a time of quarantine – an extended look by Niall Coghlan

17 March 2020 by

Quarantines and lockdowns are sweeping Europe: ItalyFranceSpain. Through them, states seek to contain Covid-19 and so save lives. It is difficult to imagine higher stakes from a human rights perspective: mass interferences with whole populations’ liberties on one side; the very weighty public interest in protecting lives on the other; and all this under the shadow of uncertainty and disorder. What, if anything, do human rights have to say?

To begin sketching an answer to this complex question, this post analyses the situation in the European state furthest down this path: Italy. After outlining the Italian measures (I), it argues that Italy’s mass restrictions on internal movement are unlikely to violate the right to free movement but pose problems in respect of the right to liberty (II). I conclude by summarising the tangle of other rights issues those measures raise and making a tentative reflection on the currently limited role of human rights law (III).

Before beginning, I should note that analysing measures’ human rights compliance in abstracto is difficult and slightly artificial: a great deal turns on how measures are implemented in practice and particular individuals’ circumstances. Moreover, my analysis is limited to the European Convention on Human Rights (‘ECHR’), and I do not profess expertise in Italian law (which is proving complex to interpret). The aim of this post is therefore to start, not end, debate about human rights’ role as these measures begin to spread across Europe.


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Lack of gender neutral option on passport forms: no breach of human rights –

12 March 2020 by

R (on the application of Christie Elan-Cane) v Secretary of State for the Home Department with Human Rights Watch intervening [2020] EWCA Civ 363 – read judgment

When we apply for a passport, we are generally asked to state on the form whether we are a man or a woman, and this is generally reflected in our passports. However, in our modern day and age, there are now more than two genders – some people can choose to define as gender neutral, essentially meaning that they don’t like to describe themselves using the normal terms of “man” or “woman”. MX Elan-Cane is one of those individuals. They sued the Home Office because there was no “X” (as in, no gender neutral) option on the passport form as it was a breach of their Human Rights. The High Court said that yes, this engaged Article 8 of the Human Rights Convention (the right to private and family life), but the current passport policy did not breach that right. The Court of Appeal agreed with the High Court, both that this engaged Article 8, but that the rights to a private life were not breached here. 


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The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller – Karon Monaghan QC

27 February 2020 by

This article was  first published here on the UK Labour Law Blog on 19th February 2020 and is reproduced with the author’s kind permission.

There are several problems with the judgment in Forstater v CGD Europe and Ors (case no 2200909/2019) (“Forstater”). Some of these have been highlighted by Amir Paz-Fuch in his recent analysis on this blog, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace’. In this blog post, I look more at the specific findings of the Employment Tribunal and whether they are sustainable. I shall consider this issue in light, in particular, of the holdings of the High Court in R (Miller) v College of Policing and A’or[2020] EWHC 225 (Admin).

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Image by Mizter_X94 from Pixabay 

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The importance of patents in biotechnology – John Butcher

21 February 2020 by

The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.

Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life. 

While that sounds really nice, you might be wondering what exactly falls under biotechnology?

What is Biotechnology?

Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry. 

Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.


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Failure to protect women from domestic violence is a breach of Article 3 of the Convention – Elliot Gold

19 February 2020 by

The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.   


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Human Rights in the Supreme Court in 2020 – Lewis Graham

12 February 2020 by

It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year. 

  1. Article 3 and deportation

In the case of AM (Zimbabwe) v Secretary of State for the Home Department (on appeal from the Court of Appeal) the Court will have an opportunity to re-assess its approach to how Article 3 should apply in deportation cases.

It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment

The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition. 

Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.


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Vavilov – a restatement of reasonableness – Adrienne Copithorne (2)

6 February 2020 by

In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,

These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.

The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.


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