Media By: Guest Contributor


Were the March 2020 lockdown restrictions lawfully imposed? (Part 1) — Emmet Coldrick

24 September 2020 by

How the lockdown was reported by the newspapers in March. Image: The Guardian

Emmet Coldrick is a barrister at Quadrant Chambers, London.  The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”. The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England.  They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).

These extraordinary new laws were made without prior debate in Parliament.  The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.

On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one.  The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”).  That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.

Mr Dolan’s challenge is pending in the Court of Appeal.  It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health [2020] EWHC 1786 (Admin) (6th July 2020).  But the Act presents difficulties in interpretation that were not grappled with in the judgment.  I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.


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Breaking international law: the UK is biting off its nose to spite its face — Dr Sean Molloy

14 September 2020 by

The Brexit Withdrawal Agreement was signed in January of this year. Image: The Guardian

The UK Internal Market Bill has caused huge controversy. Much has been written about the UK Government’s decision to propose this legislation which, as conveyed by the Secretary of State for Northern Ireland, Brandon Lewis MP, in Parliament, would openly flout international law (see, for example, Raphael Hogarth’s piece here, Mark Elliot’s here and discussion between Adam Wagner and David Allan Green here).

A major argument offered in defence is the one focused on the supremacy of domestic law over its international counterpart (see HMG Legal Position: UKIM Bill And Northern Ireland Protocol). The argument goes something like this: where domestic law appears to conflict with international law, Parliament reigns supreme and the domestic legislation is to have effect.

Strictly speaking, this is true. In contexts like the UK, with a dualist system requiring international treaties to be incorporated by an Act of Parliament, any international agreement that is not incorporated into domestic law, but which conflicts with an Act of Parliament, must give way.

But when the dust settles and the reality sets in that UK, as a country, must operate alongside other countries, there is likely to be a host of adverse implications to flow from this decision. Primary among these is, of course, that international law is law and the rule of law necessitates that the UK complies with its international obligations. This is obvious and it is a remarkable state of affairs that the point even needs to be made. Nevertheless, beyond the obvious, there are a multitude of other reasons not to flout international law, only a few of which are touched upon below.


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The Right to Privacy, Surveillance-by-Software and the “Home-Workplace” – Philippa Collins

8 September 2020 by

This article was first published on the UK Labour Law Blog ( @labour_blog). We repost it with the kind permission of Dr Philippa Collins (@DrPMCollins at Exeter University) and the editors of the Labour Law Blog

One of the lasting impacts of the COVID-19 pandemic upon the world of work is likely to be a move away from the traditional workplace. In some sectors, such as academia, IT, and administration, remote work or home working is an established working pattern, although a rare one given national statistics from 2019 which indicated only 5% of the workforce worked mainly from home. The need to prevent the spread of the coronavirus through contact in the workplace precipitated a rapid and widespread move to homeworking. In an ONS survey in early May, 44% of adults surveyed were working from home. As some businesses begin to transition back into their previous working patterns, several high-profile companies have announced that they will not expect their staff to return to the workplace and will support homeworking as a permanent option in the future.


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Minimum requirements under article 3 for rape investigation; €7,000 awarded for breach – Elliot Gold

7 September 2020 by

This article was originally published on Serjeants’ Inn Chambers UK Police Law Blog. They have kindly given us permission to repost it here.

In Y v Bulgaria [2020] ECHR 163, the European Court of Human Rights set out the minimum requirements for criminal investigations where a person has been subjected to ill-treatment contrary to article 3 and held that those principles were properly derived from cases involving breaches of article 2, despite their different content and rationale. Here, the court found a breach of article 3 in respect of the authorities’ failure to pursue an obvious line of enquiry in a rape investigation and awarded €7,000. It is an example how an investigation can be satisfactory in several respects but still fail to comply with the minimum requirements of article 3. It is also worth comparing with the bands of damages that English cases have suggested.

On 10 July 2013 at 23.30, a woman was raped in a field by an unknown man with whom she had spoken at a bus stop and agreed to follow to a nearby train station. She called the police at around 00.05. The police recovered forensic material, the applicant’s clothes and, later that day, the applicant underwent medical examination and gave a description of the assailant.


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Myanmar’s Compliance with the ICJ Provisional Measures Order & the Road Ahead

3 September 2020 by

In this article, Prachiti Venkatraman and Ashley Jordana of Global Rights Compliance analyse the case before the International Court of Justice relating to the persecution of the Rohingya people by the Myanmar authorities.

Readers are encouraged to read the previous articles about this topic published on the blog here and here.

To read more about Global Rights Compliance’s work with the Rohingya, please see: https://www.globalrightscompliance.com/en/projects/the-rohingya-accountability-project.

Rohingya refugees entering Bangladesh in 2017. Image: Wikipedia

The perilous situation of the Rohingya in Myanmar continues – the recent UN policy brief on Covid-19 in South-East Asia highlighted the compounded effects of the nation’s weak healthcare system and an ongoing armed conflict that targets ethnic communities.

On 11 November 2019, The Gambia filed an Application to commence proceedings against Myanmar before the International Court of Justice (‘the Court’). The Application alleged that Myanmar had violated its obligations under the Genocide Convention by committing acts intended to destroy in whole or in part the Rohingya community, as well as attempting and conspiring to commit genocide, inciting genocide, being complicit in its commission, and failing to prevent and punish genocide. To demonstrate the validity of these allegations, The Gambia relied on the actions of the Burmese military (‘the Tatmadaw’) and individuals connected to the State of Myanmar during the ‘clearance operations’ in 2016 and 2017 which led to the mass murder, sexual violence, and destruction of Rohingya villages in Rakhine state.


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BAME representation at the bar

5 August 2020 by

A barrister must belong to one of the four Inns of Court in order to practise.

After the killing of George Floyd in Minneapolis in May, we published on this blog a short statement and an in-depth article by Michael Paulin examining systemic racism in the legal system.

The UK Human Rights Blog is committed to continuing to raise awareness of the vital issues that were brought to public attention in May and June. In this piece, we look at diversity at the bar, with particular focus on the commercial bar.

This article is largely an edited version of a piece which appeared in The Lawyer online in April this year and may be found here. We are very grateful to The Lawyer and to Harry Matovu QC for their kind permission to reproduce that content here.

Although a record number of black and Asian minority ethnic (BAME) barristers were awarded silk status this year (a total of 22), there is still a large diversity gap in the industry. BAME barristers accounting for just under 8 per cent of the QC population overall, according to the latest figures from the Bar Standards Board (BSB). Within the commercial bar, the representation of BAME barristers is particularly low, with only 8 per cent of barristers at a range of leading commercial sets being BAME.

The umbrella term of BAME also requires nuance. According to the BSB, of the 3,364 BAME barristers in this country, 1,497 are Asian or mixed, while 479 barristers are black. The difference is even greater at silk level; just 20 of the 149 BAME silks are black.

In a nutshell, therefore, BAME barristers as a whole are underrepresented, and under that umbrella, the representation of black barristers and silks is particularly low.


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Barclays Bank plc v Various Claimants: further blurring boundaries in employment status? – by Anna Williams

28 July 2020 by

This article was first published here on the UK Labour Law Blog on 6th July 2020 and is reproduced with the author and editors’ kind permission.

Introduction

In a judgment handed down on 1 April 2020, the Supreme Court reversed the decisions of Nicola Davies J (as she then was) and a unanimous Court of Appeal, allowing the appeal on the ground that no vicarious liability can lie for the acts of an independent contractor: Barclays Bank plc v Various Claimants (‘Barclays’). This was one of a pair of decisions, each concerned with a limb of the vicarious liability test: the requisite relationship (Barclays) and the necessary connection between that relationship and the wrongdoing (WM Morrisons Supermarkets plc v Various Claimants (‘Morrisons’)). While much could be said, to use the language of recent case-law, about whether this latest development means that vicarious liability is still ‘on the move’ (Various Claimants v Child Catholic Welfare Society (‘Christian Brothers’)), has ‘come to a stop’ (Cox v Ministry of Justice (‘Cox’)), or has even been thrown into reverse, this post will instead focus on the judgment’s implications for the test(s) for employment or worker status across various contexts. Although Barclays may bring a certain kind of clarity, or at least predictability, to future vicarious liability cases, it nonetheless blurs boundaries in several areas of law. Three of these will be addressed below.


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Upcoming Human Rights Lawyers Association Event

28 July 2020 by

Race and Rights in the UK: Do Black Lives Matter Today?

The recent killing of George Floyd at the hands of US authorities has sparked a global outcry, with individuals and organisations demanding accountability and an end to the racial oppression that black Americans face. Within the United Kingdom, a much-needed debate is also taking root in response to these events, which focuses on systemic racism that denies people their basic rights here. From discriminatory policing, to the racism inherent in the Windrush and Grenfell scandals as well as the disparate racial impacts of COVID-19, evidence of systemic racial injustice within the UK abounds.

Drawing on the knowledge and experience of our panellists, this event hosted by the Human Rights Lawyers Association (HRLA) tomorrow, will provide a forum to discuss some of these issues and recommend solutions in order to advance this debate at this critical juncture. Presentations will touch on the following four key areas as part of this discussion and will be followed by a live Q&A:

– Discriminatory policing
– Grenfell
– Windrush
– Race and Covid-19

Panellists:

Laurie-Anne Power, 25 Bedford Row (Chair)
Judge Peter Herbert OBE, Co-Founder BMELawyers4Grenfell, Chair of the Black Lawyers’ Society
Dr Nishi Chaturvedi, Professor of Clinical Epidemiology at University College London
Martin Forde QC, One Crown Office Row, Independent Adviser to the Windrush Compensation Scheme
Zainab Asunramu, Activist and Writer
Rohan Samuel, @poet_rs Spoken Word Poet

Event lead and Introduction: Tetevi Davi, HRLA Executive Committee

Registration details here.

You might also be interested to hear Martin Forde QC discuss systemic racial inequality on episode 117 of our podcast Law Pod UK or read Michael Paulin‘s look at Racism and the Rule of Law on the UK Human Rights Blog.

Surrogacy and human rights — Anna Dannreuther

26 June 2020 by

In Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39 the Family Court read down section 54 of the Human Fertilisation and Embryology Act 2008 to enable a parental order to be granted where an intending parent died shortly before the child’s birth. This ensured the child’s Article 8 and 14 rights were protected, and prevented much emotional hardship for this family.

The case has already been cited in Re A (Surrogacy: s.54 Criteria) M [2020] EWHC 1426 (Fam) as comprehensively setting out when a court may ‘read down’ the statutory criteria in section 54.

Parental orders – an introduction

Section 54 of the Human Fertilisation and Embryology Act 2008 enables two people to apply for a parental order over a child who has been born as the result of a surrogacy arrangement. A parental order transfers legal parenthood from the legal parents at the time of the child’s birth (usually the surrogate and – if applicable – her husband or civil partner) to the intended parents.

Parental orders are recognised as having a “transformative effect on the legal relationship between the child and the [intended parents]. The effect of the order is that the child is treated as though born to the applicants. It has a clear implication as regards the right to respect for family life under Article 8.” A v P [2011] EWHC 1738 (Family), per Munby J [24].


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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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