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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.
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.
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”.
How the lockdown was reportedby the newspapersin 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.
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.
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.
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.
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.
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.
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.
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.
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:
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
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].
This article first appeared on the UK Constitutional Law Association blog — the original can be found here.
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 Mallory, James Rowbottom and Elizabeth Stubbins Banes. It also foreshadows the need for reform in this area.
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.
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 thelegal 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.
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:
It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
The margin is particularly wide given the complex scientific evidence underlying the decision.
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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