Note: This article involves examination of thelegal 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 is important but should not be taken to question the undeniable imperative to follow that guidance.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made by the Health Secretary on 26 March 2020. Understandably, given the speed with which the crisis was and still is developing, the Regulations were made using a statutory emergency procedure, meaning that they were not subject to Parliamentary scrutiny. They have yet to be challenged in the courts. In the meantime, a lively and important debate has developed about whether those regulations are lawful.
This post aims to provide an overview of the key contributions thus far, and to provide a starting point for newcomers to the debate. The summaries below are necessarily incomplete, and each of the pieces referred to is well worth reading in full.
The Court of Appeal has held that a mother who consults a doctor in order to avoid the birth of a child with one disability may not recover damages for the costs associated with a different disability.
The respondent, M, was concerned that she may be a carrier of haemophilia and consulted her GP, who arranged blood tests. Those tests, however, could only detect whether she herself had haemophilia, and not whether she was a carrier. She then saw the appellant, another GP, who told her that the results of the tests were normal. This led her to believe, incorrectly, that any child she had would not have haemophilia. The appellant admitted that she had been negligent.
M went on to have a son, FGN, who has haemophilia. Had she known that she was a carrier before she became pregnant, she would have undergone foetal testing, which would have revealed the condition, and she would have had a termination. Therefore, but for the negligence, FGN would never have been born.
FGN has also developed autism, which is unrelated to his haemophilia.
The claim sought the costs attributable to the haemophilia and to the autism.
The UN Committee on Economic, Social and Cultural Rights (CESCR) has published a damning report on the UK’s implementation of economic, social and cultural rights. The report is available here (under “Concluding Observations”).
The CESCR monitors the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), an international treaty to which the UK is a party. State parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to implement the rights set out in the treaty. The Committee may also take into account evidence from “Civil Society Organisations” (Amnesty International and Just Fair were among those who made submissions in respect of the UK). The Committee then addresses its concerns and recommendations to the State party in the form of “concluding observations”.
The Committee’s last report on the UK was back in 2009, so this was its first opportunity to review the austerity measures put in place since 2010.
It’s fair to say that the UK did not come off well. With regard to austerity, the Committee was:
“…seriously concerned about the disproportionate adverse impact that austerity measures, introduced since 2010, are having on the enjoyment of economic, social and cultural rights by disadvantaged and marginalized individuals and groups.”
R (on the application of Hoang Anh Minh) v Secretary of State for the Home Department  EWHC 1725 (Admin) – read judgment
This case concerned the proper approach to establishing whether there are “reasonable grounds” for believing that a person has been a victim of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings (“the Trafficking Convention”). It also touched on the scope of the state’s positive obligations under Article 4 ECHR (which protects citizens of Council of Europe Countries from subjected to slavery, servitude, or forced or compulsory labour).
The claimant arrived in the UK from Vietnam via Russia, where he claimed he had been forced to work in a factory for several years before being released. On arrival here he claimed asylum, which was refused.
In parallel with asylum proceedings, however, his case was referred to the Home Office’s competent authority to determine whether he was entitled to protection and assistance under the Trafficking Convention. The question in this context was different from that in the asylum claim – the competent authority was required to consider whether there were “reasonable grounds” to consider that the Claimant had been a victim of trafficking.
The competent authority gave an emphatic “no” to that question, by way of three decisions (an initial decision and two further decisions which reconsidered the first) which were in effect treated as a single decision for the purposes of the claim. The Claimant challenged those decisions by way of judicial review. Continue reading →
Pham v Secretary of State for the Home Department  UKSC 19 – read judgment
Angus McCullough Q.C. and Shaheen Rahman from 1COR acted as Special Advocates earlier in these proceedings. They had nothing to do with the writing of this post.
On first glance, this was not a judgment about human rights. It concerned the definition of statelessness under article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, and raised issues of competence and jurisdiction in relation to EU citizenship. Its specific interest for human rights lawyers lies primarily in the observations about the principle of proportionality; and in where the case, which most certainly does raise human rights issues, is likely to go next.
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
GS (India) and Ors v SSHD  EWCA Civ 40 – read judgment
The Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases.
The appellants were foreign nationals suffering from very serious medical conditions (five from end-stage kidney disease (ESKD) and one from an advanced stage of HIV infection). They were all receiving effective treatment here in the UK. All were at a high risk of very early death if returned to their home states, where the treatment they needed was unaffordable or simply unavailable. The Secretary of State nevertheless decided to remove them, and the Upper Tribunal dismissed their appeals. They appealed to the Court of Appeal on the grounds that removal would breach their rights under Articles 3 and 8 of the ECHR.
R (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send  EWHC 3997 (Admin) – read judgment
Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.
The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.
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