Media By: Rosalind English

C-19 damage: does international law hold any answers?

1 June 2020 by Rosalind English

What is international law for, if it cannot be enforced against the country responsible for breach? That is the question raised by a recent report documenting a series of steps by the Chinese Communist party to conceal from the World Health Organisation and the rest of the world the outbreak and human-to-human transmission of coronavirus. If we want a rules-based international order to mean anything, the authors of the report point out, it must be upheld.

In a world in which authoritarian states often act with impunity, it is tempting to forget that the rules-based international order places obligations on everyone. The Peoples’ Republic of China (PRC) is no exception to this rule. International law – in the form of Treaties, Covenants and Charters – places obligations on China, just as much as it does on the democracies of the West.

This paper identifies a number of possible legal avenues by which the wider world can pursue the PRC for the damages inflicted by its response to the COVID-19 outbreak.

I will attempt a summary of the report in the following paragraphs.

The WHO and the International Health Regulations 2005

The International Health Regulations (IHR) were adopted by the World Health Assembly, the decision-making body of the World Health Organisation (WHO). The IHR were designed to prevent the international spread of disease by placing obligations on states to prevent certain highly-transmissible diseases that were named and notifiable. The IHR were revised in 2005, in response to the 2003 SARS 1 outbreak, and entered into force in 2007.

Children in care and vaccinations: who decides?

28 May 2020 by Rosalind English

Re H (A Child) (Responsibility Order: Vaccination) [2020] EWCA Civ 664

In the current circumstances, this case has important resonances and maybe even implications for future vaccinations. It was an appeal by the parents of a ten year old child against a decision that the local authority, had lawful authority to have the child vaccinated (pursuant to Section 33(3) of the Children Act 1989.

The local authority had made care and placement orders in respect of the child, who was at the time in foster care. The LA argued that it had lawful authority, pursuant to the Children Act 1989 s.33(3), to arrange the vaccination of a child in care notwithstanding the objection of the parents, and that therefore it was unnecessary and inappropriate to refer the decision to the High Court under its inherent jurisdiction. Parental views regarding immunisation had always to be considered but the decision depended solely on the child’s welfare.

Legal Challenge to Lockdown

27 May 2020 by Rosalind English

Philip Havers QC of 1 Crown Office Row will be leading a challenge to the lockdown measures adopted by the government in response to the Covid-19 pandemic.

Tracking Coronavirus Symptoms

26 May 2020 by Rosalind English

The new contact tracing app (NHSX) is due to be rolled out in the rest of the UK some time after the Isle of Wight trial in May. Is this a way out of lockdown or an irreversible erosion of our privacy? In the latest episode of Law Pod UK Rosalind English talks to Professor Lilian Edwards of Newcastle University, whose Coronavirus (Safeguards) Bill 2020 seeks to address some of these concerns, particularly potential issues of coercion and discrimination. See our previous post reporting on the Webinar “The Covid-19 App – does it threaten privacy rights”  held by Professor Edwards and others on 13 May.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

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New Strasbourg Court President on AI and the law

22 May 2020 by Rosalind English

In the latest episode of Law Pod UK, Robert Spano, who recently commenced his tenure as President of the European Court of Human Rights in the difficult circumstances of lockdown and remote working, discusses with Rosalind English the challenges we face with automated decision making and governmental interference with our lives. The pandemic has sharpened this question, as the lifting of restrictions is made contingent on various automated projects such as the contact tracing app, which we will be considering in the next episode. Spano explains that rapid advances in AI will not just require new legal and regulatory responses. Artificial intelligence will also fundamentally alter the institutional capacities and legitimacy of courts as sources of governance. How will AI reshape our understandings and implementations of law? How will it reshape the internal workings of courts? Listen to Episode 112 to find out more.

Law Pod UK is available on Spotify, Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

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Ivory ban upheld by Court of Appeal

19 May 2020 by Rosalind English

Friends of Antique Cultural Treasures Ltd v Department of Environment for Food, Cultural and Rural Affairs [2020] EWCA Civ 649

I wrote up Jay J’s dismissal on the challenge to the lawfulness of trading restrictions in the 2018 Ivory Act here. The details of the appellant’s role and their arguments, as well as the reasoning behind the judge’s decision, are set out in that post. The thrust of the initial claim was that the prohibitions in the Act went too far and were disproportionate under Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union (“TFEU”). The question before the Court of Appeal was whether the judge applied the proportionality test correctly.

The overarching complaint was that the evidence base was insufficient. The appellant’s criticisms of Jay J’s analysis can be summarised as follows:

(i) wrongful use of the precautionary principle and the acceptance of inadequate evidence to support the bans;

(ii) failure to take account of the failings in the Impact Assessment which preceded the Bill and the according of too much deference to Parliament; and

(iii) violation of the principle of respect for property and the wrongful failure to require a right to compensation.

The Court of Appeal noted that this appeal has arisen whilst the United Kingdom is in the transition period following exit day from the European Union. It sufficed to record that until the end of the “Implementation Period”, which is presently set at 11pm on 31st December 2020, the same rules apply as they did prior to exit day.

Contact tracing – breach of data protection?

15 May 2020 by Rosalind English

In the rush to lift the lockdown with safeguards, the government has given a green light to “contact tracing” via bluetooth apps on our smartphones (provided we own them and are willling to take up the app). See Rafe Jenning’s post on the technology behind this project.

Just to remind us what contact tracing via bluetooth apps means, I will recapitulate what Lord Sandhurst says in his introduction.

The government propose a centralised model, under which, I download the centralised app on to my phone. I will keep the phone, and the app, switched on at all times. It will record the identity of the phone of any person to whom I pass close and save that information. If I learn that I am infected I get that phone to pass that information to the central server of NHSX. The server then sends a message to all people with whom I’ve been in contact within a relevant time period, that tells them that they are at risk of infection but not directly, and from whom

This is a fast moving development and indeed this post may be rendered otiose in a week’s time, particularly as the UK does not, as yet, have entirely reliable antibody tests ( news just in is that this may change.) But on 13 May we had the benefit of a virtual gathering of legal experts in data protection, human rights and constitutional law facilitated by, amongst others, Lord Sandhurst (formerly Guy Mansfield QC of 1 Crown Office Row), on the results of the first test run of the tracing app in the Isle of Wight, courtesty of the Society of Conservative Lawyers.

The latest critique of the Coronavirus Act 2020

13 May 2020 by Rosalind English

The UKHRB has been at pains to cover all aspects of the CA2020, the various sets of regulations and guidance made under it, in a balanced manner. You will recall that I drew attention to two papers published by Lord Sandhurst (Guy Mansfield QC, formerly of 1 Crown Office Row) and others raising concerns about the constitutionality and legality of these regulations: “Pardonable in the heat of crisis- but we must urgently return to the rule of law.” , followed by “Pardonable in the Heat of Crisis – building a solid foundation for action”

Remote advocacy: ALBA Guidelines

5 May 2020 by Rosalind English

The Administrative Law Bar Association has just put out a very helpful set of guidelines for conducting hearings by video-link or telephone (“remote hearings”). As we’ve all realised in the past few weeks, these can pose particular challenges for all professions, not least of all advocates. The purpose of ALBA’s guidance is to

assist advocates properly to prepare for, and effectively participate in, such hearings in public law cases which do not involve oral evidence

This post is just a signpost to ALBA’s paper, so we would urge you to click on the link above and save a copy of their guidance to your desktop. They cover issues such as document preparation, preparation of technology, and the etiquette to be observed for the actual presentation. We’re all getting used to the business of muting our microphones when not speaking, but there are other formalities to attend to for a court hearing.

Commercial surrogacy arrangements – within or without the law?

1 May 2020 by Rosalind English

In the latest episode of Law Pod UK, Rosalind English talks to William Edis QC of 1 Crown Office Row about the recent Supreme Court ruling on whether damages can be claimed against the NHS in respect of a commercial surrogacy arrangement in California, following the admitted negligence of a hospital in the UK rendering the respondent unable to bear a child. See Bill’s post on that ruling here.

Commercial surrogacy agreements – that is where the surrogate makes a profit for bearing the commissioning mother’s child – are against the law in this country. But it is not illegal to travel, so those with the means to do so can go to another jurisdiction where such arrangements are common practice. An interesting legal conundrum arose where a woman sought damages for such an arranged surrogacy in the States where a UK hospital, by its own admitted negligence, had rendered her unable to have a child. Here are the relevant laws and cases referred to in the podcast episode:

Surrogacy Arrangements Act 1985

Human Fertilisation and Embryology Act 1990, section 27; Human Fertilisation and Embryology Act 2008, section 33

Briody v St Helens [2001]

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832

Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC 14

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Renewed lockdown, new guidance: new episode of Law Pod UK

20 April 2020 by Rosalind English

In this latest episode we consider the probable attitude of the judiciary to any challenges regarding the government’s responsibility for providing sufficient PPE, the risk imposed on individuals, such as prisoners and mental health patients in detention during lockdown, their obligations under Articles 2 and 5 of the European Convention on Human Rights, as well as Article 11. How are we as a society, and the government, going to regard the question of “judicial activism” in this unprecedented situation in a post-pandemic UK?

Here are the statutes, statutory instruments and cases referred to in the course of my interview with Dominic Ruck-Keene and Darragh Coffey:

The Climate Change Act, Heathrow and HS2

17 April 2020 by Rosalind English

The latest episode of Law Pod UK features energy expert Thomas Muinzer of Aberdeen University and David Hart QC of 1 Crown Office Row. They discuss the complex provisions of the Climate Change Act 2008, the extent to which the UK has reached its own goals for carbon emission reduction, and two recent challenges in the courts to projects involving GHG emissions:

R(on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 and Christopher Packham CBE v Secretary of State for Transport and the Prime Minister [2020] EWHC 829 (Admin).

This is all the more topical, given the recent decision to go ahead HS2, despite the current lockdown.

Law Pod UK is available on Spotify,Apple Podcasts, Audioboom, Player FM,  ListenNotes, Podbean, iHeart, Radio Public, Deezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

“Pardonable in the Heat of Crisis – building a solid foundation for action”

16 April 2020 by Rosalind English

In a paper published today Lord Sandhurst QC and Benet Brandret QC follow up on the previous paper co-authored by Lord Sandhurst QC by making concrete proposals for addressing the issues identified previously (see the previous paper here and our post on it here). It sets out a more concluded position on the doubts as to the vires for SI 2020/350 by explaining why the Statutory Instrument is, indeed, ultra vires, and the need for new legislation. It also sets out routes to put legislation and Guidance on a sound footing.

“Pardonable in the heat of crisis- but we must urgently return to the rule of law.”

9 April 2020 by Rosalind English

UKHRB readers may be interested to see a paper co-authored by Guy Mansfield QC, formerly member of 1 Crown Office Row. Guy – Lord Sandhurst QC – is a past Chairman of the Bar of England and Wales, and a current member of the Executive of the Society of Conservative Lawyers. He has kindly given us permission to link to the paper here.

Anthony Speaight QC is Chair of Research of the Society of Conservative Lawyers, and was a member of the Government Commission on a UK Bill of Rights.

Here is a very short summary of the paper’s arguments.

New Episode of Law Pod UK

9 April 2020 by Rosalind English

The Supreme Court has recently handed down two judgments rejecting vicarious liability of employers for the wrong doing of of an employee on the one hand, and an independent contractor on the other. In Episode 106 of the Law Pod UK series Rosalind English discusses these judgments and three other important decisions on vicarious liability with Robert Kellar QC and Isabel McArdle, both of 1 Crown Office Row.

The two most recent judgments are:

WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC (see my post here)

Barclays Bank v. Various Claimants [2020] UKSC 13 (see Robert Kellar’s post here)