Tribunal Administrative de Strasbourg, N°2003058 M. A. et autres
M. Simon, Juge des référés
Ordonnance du 25 mai 2020
This judgment was handed down over two months ago but its relevance to the current rules on face masks in the UK makes for interesting reading. It is available only in French.
A group of individuals brought a challenge to a decree issued by the mayor of Strasbourg obliging citizens over the age of eleven to wear facemarks in the streets and other areas, in particular the Grande-Ile (an island in the centre of Strasbourg), from 10am – 8pm, enforceable by a fine. The obligation was in force from May 21 to 2 June.
The claimants argued that the decision undermined freedom of movement, the right to protection of health, and the right to respect for private and family life under Article 8 of the ECHR. They contended that the decree was outwith the powers of the mayor since police measures relating to health emergencies were reserved to the national authorities and the préfets de département. This decree was, they said, unjustified and disproportionate.
The municipality of Strasbourg argued that the decree was strictly limited in time and space and was therefore proportionate to the specific local circumstances of the area. Referring to the French legal code relating to public authorities, administrative justice and public health, and the lockdown law passed on March 23 2020, the respondents argued that this emergency law allows, amongst other things, the prime minister to regulate or prohibit the movement of people unless strictly essential for the needs of health or family.
The gravamen of the claimants’ argument was that the mayor’s decree had gone beyond his power to issue it. The court clarified that the mayor had been entitled to exercise his municipal police power to prevent and reduce the effects of the covid epidemic. Under French law, a municipal mayor can only act on these two conditions:
there are “compelling reasons” linked to local circumstances
and these measures do not compromise the consistency and effectiveness of the measures already taken by the State.
The claimants relied on article (521-2) of the Code of Administrative Justice which reads:
On receipt of a request justified by urgency, the interim relief judge may order any measures necessary to safeguard a fundamental freedom which a legal person governed by public law or a private-law body responsible for managing a public service has, in the exercise of one of its powers, seriously and manifestly unlawfully infringed. The interim relief judge shall give a ruling within 48 hours.
The emergency law of 23 March 2020 that was introduced to deal with the covid-19 epidemic says that
A state of health emergency may be declared in all or part of the territory (…) in the event of a health disaster which, by its nature and seriousness, endangers the health of the population.
According to the terms of Article L. I of the Code. 3131-15 of the same code, in the territorial districts where a state of health emergency is declared, the Prime Minister may, in particular, for the sole purpose of guaranteeing public health : “1° Regulate or prohibit the movement of persons and vehicles and regulate access to means of transport and the conditions of their use
other powers to restrict movement and enforce quarantine follow. Under the terms of I of Article L. 3131-17 of this Code:
When the Prime Minister or the Minister responsible for health takes the measures mentioned in Articles L. 3131-15 and L. 3131-16, they may authorise the representative of the territorially competent State to take all general or individual measures for the application of these provisions.
As far as the mayor’s jurisdiction is concerned, here are the terms of article L. 2542-3 of the General Code of Local Authorities applicable in Alsace Moselle:
The mayor’s duties are to ensure that the inhabitants enjoy the advantages of good policing, in particular cleanliness, health, safety and tranquillity in the streets, places and public buildings. The mayor is also responsible for ensuring the tranquility, health and safety of the countryside.
The summary judge in this application ruled that the circumstances obtaining in Strasbourg revealed “no compelling reason” to justify the mayor’s decree obliging citizens to wear a mask.
Under these conditions, the decree [under challenge] …, which is a general administrative police measure taken by the mayor in addition to the special police measures taken by the state authorities, is not justified by any compelling reason related to to local circumstances specific to the municipality of Strasbourg
The court rejected the arguments of the Strasbourg municipality under Article L. 761-1 of the Code of Administrative Justice and suspended the Mayor’s decree of 20 May 2020.
This ruling is worth noting in that it recognises under the right to respect for private life a “freedom of physical appearance”. The decree under attack, which obliged Strasbourg citizens to wear a mask, was not considered by the judge to be justified by an overriding reason linked to a local circumstance:
Indeed the choices made as to the appearance that one wishes to have, in the public space as in private, relate to the expression of the personality of each one and thus of the private life.
As to the Article 8 right to respect for private life, the following observation from the judge shows the extent to which this ECHR provision can be stretched:
Indeed the choices made as to the appearance that one wishes to have, in the public space as in private, depend on the expression of the personality of each one and therefore of the private life.
The flexibility of the right to respect for private life as enshrined in Article 8 proved to be very useful for the claimants in this case. The judge upheld the right to respect for private life and freedom of physical appearance over the justifications advanced by the municipality.
For a broader discussion of the judgment and the important role of Article 8 and the recognition in law of the freedom of physical appearance, I recommend this post by Arnaud Gossement, which he concludes with this note:
any interference with this right to respect for private life that constitutes freedom of appearance is not necessarily illegal. It has to be justified by “an overriding reason linked to local circumstances”. In this case, in the judge’s view, the justification advanced was insufficient.
The recent ruling by the Supreme Court that the former leader of Sinn Féin had been unlawfully detained and convicted in the 1970s has elicited some severe criticism from high places, including former Supreme Court judge Jonathan Sumption. Matt Hill of 1 Crown Office Row discusses this case with Rosalind English in the latest episode of Law Pod UK. Matt has worked on a number of cases relating to the Troubles in Northern Ireland. He was involved as an in historian on the Bloody Sunday Inquiry, was junior counsel to the Inquiry on the recent Birmingham pub bombing inquests, and has written about the use of inquiries and inquests in dealing with the legacy of the Troubles. The discussion focusses on the so-called “Carltona” principle regarding the responsibility of ministers to consider each function of administration. Lord Sumption has said that the Supreme Court ruling in the Adams case has “left the law in an awful mess”.
This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance
when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain  1 WLR 607.
The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:
Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.
So as you can see, this tort encompasses quite a range of human enterprises.
After something of an hiatus occasioned by the Covid-19 pandemic, we are delighted to welcome Catherine Barnard back onto our podcast with her clear and informative account of the legal steps towards Brexit.
In the latest episode of her podcast 2903cb, Professor Barnard talks to journalist Boni Sones about the latest in the trade talks. What is happening with the timetables and deals to get the UK out of the EU by the end of this year? Tune in to Episode 120 of Law Pod UK to find out.
The campaign group Dignity in Dying has recently brought out a new book called Last Rights: The Case for Assisted Dying, by Sarah Wotton and Lloyd Riley, Director and Policy manager of the campaign group Dignity in Death. The book is designed to restart the discussion on how we provide dying people with greater choice at the end of life.
Even with the best palliative care, some people still suffer terribly at the end of life, as Sarah and Lloyd explain in this discussion. Episode 119 of Law Pod UK highlights the way in which the pandemic has brought death and dying to the centre of pubic discourse and how the time has come again to press for an inquiry on the blanket ban on assisted dying.
This was an appeal by the secretary of state against a decision of the President of the Family Division concerning the exercise of the family court’s jurisdiction to make a female genital mutilation protection order (FGMPO) under the Female Genital Mutilation Act 2003 Sch.2 Pt 1 para.1. The child concerned (“A”), was under imminent threat of deportation to Bahrain or potentially Sudan. The original FGM protection order in relation to A was made by Newton J in December 2019. He said that
It is difficult to think of a clear or more serious case where the risk to A of FGM is so high.
Section 2 of the Female Genital Mutliation Act establishes the offence of assisting a girl to mutilate her own genitalia, where a person
aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.
Section 3 extends this to “assisting a non-UK person to mutilate overseas a girl’s genitalia”.
FGMPOS offer a legal means to protect and safeguard victims and potential victims of FGM. They are granted by the family court and are unique to each case. They contain conditions to protect a victim or potential victim from FGM, including, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected.
After the order is issued, the police receive a copy, together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms.
In this case the President of the Family Division had held that in exercising its discretion about making an FGM protection order, a family court was not bound to take into account, even as a starting point, a previous assessment of risk of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal in determining an asylum application based upon the risk of FGM upon return.
The spotlight during the pandemic has been on frontline workers in the medical profession. But if you think of it, the real hazards are to be found in the dentist’s surgery, where most interactions with patients involve an operation in the mouth, whether it be drilling, cleaning or extraction. Most of what a dentist or a dental hygienist does is what has become widely known as an AGP – “aerosol generating procedure”.
In the latest episode of Law Pod UK Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.
PHG, linked with Cambridge University, provides independent advice and evaluations of biomedical and digital innovations in healthcare. PHG has recently published a series of reports exploring the interpretability of machine learning in this context. The one I will focus on in this post is the report considering the requirements of the GDPR for machine learning in healthcare and medical research by way of transparency, interpretability, or explanation. Links to the other reports are given at the end of this post.
Machine learning typically denotes “methods that only have task-specific intelligence and lack the broad powers of cognition feared when ‘AI’ is mentioned”. Artificial intelligence (AI) can be defined as “the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.” We are only beginning to realise the scope of intelligence that is silicone-based, rather than meat-based, in the reductionist words of neurscientist and author Sam Harris. It is important too to grasp the difference between types of programming. As this report puts it,
Machine learningas a programming paradigm differs from classical programming in that machine learning systems are trained rather than explicitly programmed. Classical programming combines rules and data to provide answers. Machine learning combines data and answers to provide the rules
COVID-19 has changed many things about society, and one of the most significant is the erosion of the taboo surrounding death. After all, we have daily bulletins on death figures. As Dignity in Dying Sarah Wootton says, in her forthcoming book “Last Rights”,
The coronavirus pandemic has thrust death and dying into the mainstream.
This sensitive and compassionate judgment by Hayden J following a remote hearing of the Court of Protection is therefore worth our attention, as we all become more aware of how acutely things slip out of our control, not least of all our health.
The application from the Trust concerned a 34-year-old man (MSP) who has had significant gastrointestinal problems for approximately 10 years, requiring repeated invasive surgery. At the time of the hearing he was unconscious and on life support in ICU. The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.
Between 2013 and 2020 MST underwent significant abdominal surgery and had a stoma inserted in 2018. The court noted that he “utterly loathed” life with a stoma. He did express his consent to the stoma being inserted at the time, but this consent seemed entirely contrary to his unambiguous rejection of this procedure, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point.
Significantly, on 4th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told. In this Advance Directive he stipulated, among other things, that he would refuse the “formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% or under”.
On 26 May, judicial review proceedings were launched in the High Court which not only challenged the lawfulness of the Lockdown Regulations as having been made “ultra vires” under the 1984 Public Health Act, but also claimed that they are disproportionate to the threat posed by Covid-19. Philip Havers QC of 1 Crown Office Row is acting for the claimant: see my post on the launch proceedings here.
This latest communication from the claimant has challenged the legality of the latest lockdown regulations, the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, enforceable from Monday 8 June. (NB whilst there might be changes afoot in respect of people travelling from and within the EU, the current position remains as set out in the regulations which took force this week). The claimant observes that from many weeks of data collected since it first affected the UK, that Covid-19 overwhelmingly affects primarily the elderly and those with pre-existing health conditions, not the “vast majority of the working population.”
Young people and children are scarcely affected at all. Indeed, as of the latest available figures published by NHS England, we note that out of a population of 56 million people in England alone, since the outbreak started, Covid-19 has been cited on the death certificates of just 279 people who died in hospital in England under the age of 60 with no pre-existing health condition. *
In the latest episode of Law Pod UK, Rosalind English discusses the Agriculture Bill with Peter Stevenson, senior policy advisor to the campaign organisation Compassion in World Farming. We have chosen the rearing of food animals as our focus for this interview because of the circumstances in which the current pandemic is said to have arisen; the zoonotic event of an animal virus passing to humans in the pathogen-rich wet markets of China. Intensively farmed “wildlife” may sound an alien concept, if not something of an oxymoron, but the dangers of industrial farming of animals are becoming increasingly apparent in the West.
The main concern is that there are no provisions in the framework bill to protect UK food producers from being undercut by imported food from countries where standards of animal welfare and hygiene do not apply.
See Rafe Jenning’s post on the salient features of the Agriculture Bill 2020 for more details about its provisions for “public money for public goods”, Environmental Land Management Schemes that promote these goods such as improvements to soil health, pollinator density and biodiversity, all activities that the market does not sufficiently incentivise.
“One need only to think about the irrationality in being allowed to buy a jersey but not undergarments or open- toed shoes “
A High Court judge in South Africa has just taken a stand on the ANC government’s reaction to the pandemic. He has ruled that some of the lockdown regulations do not satisfy the rationality test under public law, and that their encroachment and limitation on the freedoms set out in the South African Bill of Rights are not justified in a society based on “human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”
He drew “clear inference” from the evidence, that once the government had declared a national state of disaster, the goal was to flatten the curve by way of retarding or limiting the spread of the virus (“all very commendable and necessary objectives”). However, “little or in fact no regard” was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.
His criticism was not that the government should have done nothing in the face of the epidemic, but that they took a cartwheel to crush a butterfly.
The starting point was not “how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of south Africa, may exercise”.
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.
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