We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.
Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.
One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.
Covid, clinical negligence, quarantine, lockdown, inquests, nerve agents, algorithms, child abuse, coercive and controlling behaviour and racism. What’s there not to like in our smorgasbord of favourites from the past eleven months?
Worry not: there are laughs to be had. A bee bothers a bureaucrat with solemn consequences for subordinate legislation in a motion of regret debate.
I was put on to this decision from the Court of Queen’s Bench of Alberta by a response to a post from the Secret Barrister on Twitter (@barristerSecret) . This concerns the Magna Carta tsunami that has wreaked a certain amount of havoc on social media in response to the government’s Covid restrictions.
I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.
Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.
In her judgment of 27th February 2020 Hilder J laid down certain rules regarding what a property and affairs deputy can and cannot do in relation to seeking legal advice and taking steps in litigation. In these joined cases the deputies applied to the COP seeking orders for authorised expenditure of the protected persons’ estate for their costs in obtaining legal advice and conducting proceedings on P’s behalf.
The Senior Judge’s conclusions are set out in her summary at the end of the judgment. In Episode 131 of Law Pod UK Amelia Walker of 1 Crown Office Row discusses some of the salient issues in this comprehensive “one stop shop” ruling with Rosalind English.
Dominic Cummings departed from Downing Street in dramatic fashion this week. The departure may herald a change of tone for this government – but in the meantime, criticisms of government measures continue on human rights grounds.
The Joint Committee on Human Rights this week published two reports.
The first report provided legislative scrutiny of the Covert Human Intelligence Sources (Criminal Conduct) Bill. This contains a proposal to grant government agencies (of every shape and size, including the Food Standards Agency and the Competition and Markets Authority) the power to authorise undercover operatives to commit acts in the course of their undercover activities that would be otherwise criminal. The Committee’s conclusion was that the Bill does not contain adequate safeguards and oversight to prevent abuse of the proposed powers to authorise such conduct. Their report recommends a requirement for prior judicial approval before a public body can provide a criminal conduct authorisation, along with an upper limit on the type of criminal conduct that can be authorised, and a reduction in the range of public authorities with these powers, and The report is available here.
The Committee has also published a report on the human rights of black people in the UK. They have called on the government to set out a comprehensive Government race equality strategy, based on increased data collection. In particular, they have urged a focus on ending racial disparities associated with the security services (police and Home Office), democratic participation (unequal voter registration), and healthcare (the maternal mortality gap). They have also recommended that the Equality and Human Rights Commission be given stronger powers so that it can do more to tackle race inequality in the UK. The report is available here.
Artificial intelligence (AI) aims to mimic human cognitive functions. It is bringing a paradigm shift to healthcare, powered by increasing availability of healthcare data and rapid progress of analytics techniques. Robert Kellar QC of 1 Crown Office Row joins Rosalind English in the latest episode of Law Pod UK to answer some pertinent questions about the application of AI in healthcare and what it means for clinical negligence and other forms of litigation and regulation in medicine.
Will we come to a point when healthcare providers will be under a duty of care to use Artificial Intelligence? At some point the argument is likely to be raised that the advantages of AI are so stark that it would be illogical or irresponsible not to use it. What would this mean for the Bolam test? And for the courts – a judge hearing a clinical negligence case where the issues turn on algorithms may need to be more familiar with computer programming than with medical practice.
Hear these and more fascinating and not too far fetched points in discussion in Episode 130.
Would you be first in the queue for the Covid-19 vaccine if and when it is rolled out? Or would you prefer to wait and appraise its effects on more pioneering citizens? With nearly a year of widespread media coverage of the coronavirus, it would not be surprising if a large percentage of an already fearful population exercised its right not to be subjected to what would be an assault and battery under English law: medical treatment without consent.
This is a syndrome, and it has a name. It is called “vaccine hesitancy”. The WHO describes this as “the reluctance or refusal to vaccinate despite the availability of vaccines”. Our willingness to avail ourselves of a future COVID vaccine is very much in doubt, and it is in doubt in high places.
Should a Covid-19 vaccine become available at scale, we cannot expect sufficient voluntary uptake.
Update: on Tuesday 17 November the Danish government finished considering a new law giving the government extended powers to respond to epidemics. Parts of this law that propose that:
People infected with dangerous diseases can be forcibly given medical examination, hospitalised, treated and placed in isolation. The Danish Health Authority would be able to define groups of people who must be vaccinated in order to contain and eliminate a dangerous disease. People who refuse the above can – in some situations – be coerced through physical detainment, with police allowed to assist. See the Danish newsletter here. In this country, Health Secretary Matt Hancock has refused to rule out mandatory inoculation, telling talkRADIO the government would ‘have to watch what happens and… make judgments accordingly’.
In July 2020 a group of philosophy and law academics presented written evidence to Parliament proposing that individuals should undergo vaccination as a
condition of release from pandemic-related restrictions on liberty, including on movement and association
The authors of the report base this proposal on two “parity arguments”:
a. If Covid-19 ‘lockdown’ measures are compatible with human rights law, then it is arguable that compulsory vaccination is too (lockdown parity argument); b. If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (mental health parity argument).
They contend that there is “an arguable case” for the compatibility of compulsory vaccination with human rights law.
The secretary of state had granted a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone, one of the two drugs required for a termination of pregnancy during the first 10 weeks. The appellants challenged this decision by way of judicial review, arguing, inter alia, that it was unlawful as being without the powers conferred by the Abortion Act 1967 (as amended).
Legal background
The 1967 Act sets out the legal framework under which abortions can be performed in England and Wales. Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence to administer drugs or use instruments to procure an abortion. Section 59 of the same Act makes the supply of drugs, knowing that they are intended to be unlawfully used to procure the miscarriage of any woman, a criminal offence.
The Act excludes from criminal liability the termination of a pregnancy by a medical practitioner under certain circumstances including maximum term of twenty four weeks and risk to the woman. The Act also stipulates that treatment must be carried out in an approved place.
The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.
Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.
ELF are acting for acting for local residents in the Forest of Dean on a translocation of pine martens from Scotland. They discuss bats, other protected species and relative success of the introduction of beavers to the British Isles with Rosalind English.
Through a collaboration with the Environmental Law Foundation we bring you Episode 126, a panel discussion with environmental experts Mark Avery and Nikki Gammans in discussion with Carol Day, consultant solicitor with Leigh Day. This is the first instalment of two of these panel discussions.
A plethora of reintroductions of various species have been making the news recently, with such charismatic species as White Sea Eagles and Red Kites. Dr Mark Avery from Wild Justice discusses with Carol Day how well these projects are working. They also strike a note of caution about the proposal to reintroduce Hen Harriers in the south. Dr Nikki Gammans of the Bumble Bee Conservation Trust talks about the reintroduction of the Short Tailed Bumble Bee. This species as taken to New Zealand in colonial times, and the population remained there after it went extinct in the UK. The Bumble Bee Trust is running a project to bring them back to this country.
Harriet Harman MP, chair of the Joint Committee on Human Rights. Photo: Chris McAndrew
In the news
This week, 6 months after it was passed, the Coronavirus Act 2020 is due for a review in Parliament. In advance of that review, the Parliamentary Joint Committee on Human Rights has published a report on the human rights implications of the government’s response to COVID-19. In the report, the committee highlights a wide range of failings, including in particular: widespread confusion over what is law and what is guidance; police failing to fully understand their powers under coronavirus legislation; privacy, data protection and discrimination concerns about test & trace; reduced access to justice; disproportionate harm to school children with special educational needs and disabilities; and harms inflicted by blanket bans on visits to people in care homes, prisons, and mental health facilities. The report can be viewed here; the JCHR’s proposed amendments to the coronavirus legislation to be discussed this week are here.
The JCHR is also due on Monday to scrutinise the government’s Overseas Operations (Service Personnel and Veterans) Bill, which proposes a presumption against prosecution for service personnel and veterans. Concerns have been raised about the risks of the UK contravening its international legal obligations, and creating impunity for serious war crimes and torture.
Concerns about surveillance in the UK continue, as it was revealed this week that surveillance cameras manufactured by Chinese company Hikvision are being used across the UK; their use has expanded in the wake of the COVID-19 pandemic. Hikvision was blacklisted by the US government for human rights violations in connection with the Uighur concentration camps in Xinjiang. Hikvision says it has been engaging with the UK and US governments to “clarify misunderstandings”, and claims it is “committed to cybersecurity standards which are compliant with the most rigorous certifications and best practices.”
With Baroness Hale’s recent criticism of the emergency measures taken by the government ringing in our ears, the following information from across the Atlantic might be of interest. The New England firm Pierce Atwood LLP has compiled a list of class actions related to COVID-19 in the United States, including all filed and anticipated cases up to 9 September 2020. Although their survey only covers litigation in the US, a similar trend may be predicted in this country, albeit on a smaller scale, even as the pandemic continues to unfold: indeed Alethea Redfern has made reference to such a likelihood in this week’s Round-Up. The authors of the US report observe that, despite “unprecedented court closures and changing procedural rules”,
class actions have steadily increased and are expected to expand across industries, jurisdictions, and areas of law. The impact of COVID-19 on business operations, consumer activity, and economic forecasts has made clear that the filings to date are only an early indication of what is to come.
The report provides a categorised summary of coronavirus-related class action litigation filed to date, highlighting the core allegations of each complaint. You will find the individual case citations in their post on Lexology.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
Recent comments