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The Weekly Round-up: More restrictions and court backlogs

30 November 2020 by

In the news:

On Monday 23rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system. 

Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:

  • Tier 1 (Medium Risk):
    • The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
    • Pubs and restaurants must shut at 11pm
    • Limited numbers of spectators may be permitted at sports and music events
  • Tier 2 (High Risk):
    • People from different households may not meet indoors
    • The ‘Rule of Six’ will apply for outdoor gatherings
    • Pubs and restaurants must shut at 11pm
    • Alcohol can be served only alongside a substantial meal
  • Tier 3 (Very High Risk):
    • People from different households may not mix indoors or outdoors in hospitality venues or private gardens
    • People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
    • Pubs and restaurants must close except for takeaway and delivery services
    • Travelling into and out of the area is discouraged

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Use of force by police: what is the standard for determining misconduct?

28 October 2020 by

Jermaine Baker was shot dead in December 2015. Image: The Guardian

The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct [2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.

The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.

In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.


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Free School Meals and Governmental Responsibility — Dr Kirsteen Shields

22 October 2020 by

Marcus Rashford has campaigned prominently on this issue. Image: Wikipedia

This article is a condensed version of a piece in the Edinburgh Law Review, Jan 2021 Issue.

Questions around government responsibility for food systems, churning away during the Brexit debates, long ignored, sometimes derided, are meeting stark realities in the coronavirus pandemic. This week we are back to free school meals (FSM).

This summer when the government proposed that it would be stopping the provision of free school meals in England over the summer holidays, it was met with public outcry. When the government U-turned on the decision it was attributed to a successful online campaign led by footballer Marcus Rashford. On 10 October he was awarded an MBE in the Queen’s Birthday Honours.

In the background human rights lawyers Jamie Burton of Doughty Street Chambers and Dan Rosenberg of Simpson Millar acting on behalf of the Good Law Project and Sustain had issued a judicial review pre-action protocol to the Secretary of State for Education, Gavin Williamson MP (hereinafter SSE).

When the government reversed the decision on free school meals, the legal proceedings were halted and as a result potentially significant legal precedent was lost. This comment sets out the human rights case against the government in respect of not providing free school meals in England that may be of renewed and wider relevance in the future. (Education is a devolved matter and therefore the UK government powers in this area do not extend to Scotland and Wales.)

It is also noted that yesterday an Opposition motion in the House of Commons to extend provision of Free School Meals to Easter 2021 was voted down by 322-261. Marcus Rashford has issued a tweet in response. The issue has not gone away.


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Redress for ‘historical’ child abuse in care: what can Scotland learn from Ireland? — Dr Maeve O’Rourke

21 October 2020 by

The Scottish Parliament is considering a Bill for redress for survivors of child abuse in care. Image: Wikipedia

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently undergoing parliamentary scrutiny.

How survivors experienced Ireland’s institutional abuse ‘redress’ schemes (the Residential Institutions Redress Board (RIRB) and the Magdalen Restorative Justice Ex-Gratia Scheme) over the past two decades can tell us a great deal about the elements of good practice in the Scottish Bill and the areas requiring amendment.

The Scottish Bill improves greatly on some problems that have beset Irish redress schemes by proposing a non-adversarial approach, provision of legal and other assistance throughout a survivor’s engagement with the scheme, freedom of expression for survivors, and a prohibition on the review body reducing the payment proposed at first instance.

However, the Bill’s shortcomings include the waiver requirement, the five-year time limit for applications, the anticipated obligation on survivors to provide documentary evidence ‘in all but exceptional cases’, and the exclusion of corporal punishment from the scheme’s scope. My recent correspondence to the Scottish Parliament’s Education and Skills Committee discusses all of these issues.

Here, I focus on the waiver. This requires that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000.

Scotland has the opportunity to use this redress scheme to support survivors who wish to pursue litigation against the State and/or other entities, by contributing to these individuals’ psychological and financial security in the short term. Instead of the current waiver proposal, the Bill could direct the courts to reduce any future damages award by the amount already paid by the relevant Defendant under the scheme. This approach would recognise the absolute and inalienable human right of survivors of torture or other cruel, inhuman or degrading treatment to accountability for such abuse, and to compensation commensurate with the gravity of the harm suffered. Such recognition would strengthen current and future protections against torture and ill-treatment while redressing past failings.


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The UK Internal Market Bill and the Mother of all Ouster Clauses – Ronan Cormacain

15 October 2020 by

The United Kingdom Internal Market Bill is due for second reading in the House of Lords on 19 October 2020.  It is not an understatement to say that the Bill contains provisions which represent one of the most egregious assaults on the Rule of Law in recent times, nor is it an understatement to say that there is a remarkable hostility to it from across the political spectrum, and across the Brexit divide..  It has also united the UK’s legal profession against it.   In Reports for the Bingham Centre for the Rule of Law here and here we pointed out how this violation of international law breaches the Rule of Law.  I have also previously argued that the Bill contains an unacceptable breach of domestic law.  The former Attorney General Dominic Grieve argued that the Bill contained an unacceptable ouster clause.  I wish now to hone that argument by characterising what is now clause 47 of the Bill as containing not just a simple ouster clause, but the mother of all ouster clauses.

Brief explanation / history of ouster clauses

An ouster clause is a provision in primary legislation which ousts the jurisdiction of the courts.  It deems that provision (or decisions made under or in accordance with that provision) as not susceptible to judicial challenge. An ouster clause makes the subject matter of the clause non-justiciable, putting it outside or beyond the reach of the courts.

Parliament and the courts have played a game of cat and mouse over ouster clauses for at least the last 70 years.


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Folk Heroes, Villains and the Overseas Operations Bill — Conall Mallory

12 October 2020 by

UK troops leaving Afghanistan. Image: Flickr

The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.

This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here  and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.


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A Life’s Work: Justice Ruth Bader Ginsburg — Ruby Peacock

25 September 2020 by

Ruth Bader Ginsburg. Image: The Guardian

In a career defined as much by powerful dissenting judgments as by winning oral arguments, Ruth Bader Ginsburg blazed a trail particularly for women, but also minorities and the LGBTQI+ community, to receive equal treatment under the law. This article will follow that trail, from her early women’s rights arguments in the 1970s to her powerful dissenting judgments, which earned her the affectionate title of ‘the Notorious RBG’ in later life. 

To commemorate her death last Friday at 87 years of age, this extended article will look at her extraordinary professional life.


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Were the March 2020 lockdown restrictions lawfully imposed? (Part 2) — Emmet Coldrick

25 September 2020 by

The Prime Minister announces the lockdown on 23rd 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.

The first article in this two-part analysis examined 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”. It can be found here.

This 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 two articles are a condensed version of a full analysis which may be found here.

This is the second part of a blog post on this topic.  The first part concluded part-way through a discussion of whether the Regulations 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”.

Proper approach to interpretation where fundamental rights are in issue

A troubling feature of the section of the judgment in Dolan that deals with the ultra vires issue is that it makes no reference to the gravity of the restrictions on liberty imposed by the Regulations or of the fact that, on the Secretary of State’s case, the Act confers powers to impose still graver restrictions on fundamental rights.  Instead, the judgment refers blandly at paragraph 43 to “the adoption of a range of measures”.

It is also regrettable that, while glossing over of the seriousness of the interference with fundamental rights that would be permitted if his interpretation of the Act were correct, the Secretary of State stressed the “threat”, submitting that “… it would be absurd if the provisions were to be read otherwise given the nature of the public health threat …” (judgment para. 36).  That approach to the question of the scope of the Secretary of State’s powers is redolent of the kind reasoning that characterises justifications of rule by diktat and is the antithesis of the rule of law.  A decree that no one may leave her home without reasonable excuse, or gather with more than one other person in a public place, is the sort of restriction that might be imposed by a totalitarian regime or an invading foreign power.

It is welcome that in his Reasons for granting permission to appeal, Hickinbottom LJ noted that “… not only did/do the challenged Regulations impose possibly the most restrictive regime on the public life of persons and businesses ever – certainly outside times of war – but they potentially raise fundamental issues concerning the proper spheres of democratically-accountable Ministers of the Government and judges”.


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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.

These articles are a condensed version of a full analysis which may be found here.

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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