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Following his excellent exploration of the interface between human rights and the quarantine and movement restrictions adopted in response to Covid-19, biolaw expert Niall Coghlan kindly agreed to come on our podcast and expand on the subject. Whilst we have made every effort to get this episode on air as soon as possible, there are bound to be further laws and decrees being rolled out. References to the relevant Italian laws, the Latvian derogation and others can be found in Niall’s post of 17 March. Here are references to the most recent developments.
National concern about coronavirus rose further this week, as the tally of UK cases rose to 36. The government has said that it will publish an emergency ‘battle plan’ for tackling the virus, based on existing contingency plans for responding to a pandemic flu outbreak. This will include ministers responsible for coronavirus in each department, as well as a public information campaign run from the Cabinet Office; if the virus spreads further, it could also include banning big events, closing schools, and advising against use of public transport. When questioned yesterday on whether cities will be isolated, as in China, Health Secretary Matt Hancock was emphatic that no tactics are “off the table” in the government’s coronavirus strategy.
The Johnson government is facing major setbacks elsewhere this week.
The High Court has ruled that the health authorities owed a duty of care to the daughter of their patient who suffered from the hereditary neurodegenerative order Huntington’s Chorea, to inform her about his condition. But in the circumstances, Yip J concluded that the duty was not breached and that causation had not been established.
The facts of this case are set out in our previous post about the interlocutory proceedings before Nicol J. It will be recalled that the father had killed the claimant’s mother and was detained in a psychiatric hospital at the time of these events.
The outcome of the hearing on the merits has been awaited with anticipation because the finding of an obligation on a doctor to inform a third party may undermine the doctor-patient confidentiality rule, and this in turn would have a significant impact on the health services, particularly as genetic medicine increases the number of diagnoses that affect not just the individual patients but their relatives as well.
The issues before the Court
Now that the full trial of the merits of this case has been held, we have a more nuanced picture of the legal duties and defences. For a start, there were a number of defendants, not just the father’s clinician, but the medical team that made up the family therapy group that treated both claimant and her father. Furthermore evidence has come to light about the claimant’s attitude to the dilemma that she faced which has had implications for the decision on causation.
But first, let’s look at the issues that Yip J had to determine in this important case involving the implications for medical confidentiality in the context of hereditary disease.
i) Did the defendants (or any of them) owe a relevant duty of care to the claimant?
ii) If so, what was the nature and scope of that duty?
iii) Did any duty that existed, require that the claimant be given sufficient information for her to be aware of the genetic risk at a stage that would have allowed for her to undergo genetic testing and termination of her pregnancy?
iv) If a duty of care was owed, did the defendants (or any of them) breach that duty by failing to give her information about the risk that she might have a genetic condition while it was open to her to opt to terminate her pregnancy?
v) If there was a breach of duty, did it cause the continuation of the claimant’s pregnancy when it would otherwise have been terminated? (This involves consideration of whether the claimant would in fact have had the opportunity to undergo genetic testing and a termination in time but for the breach, and whether she would have chosen to do so.)
According to Jewish religious law, if a husband refuses to grant his wife a divorce (a “get”) she has no recourse to the Jewish authorities for a certificate and must either be content with a civil divorce, or remain a “chained woman” or “argunot”. One of the consequences of this system is that any child she may have by a subsequent relationship is considered a “manner”, or illegitimate.
For the first time in legal history Anthony Metzer QC of Goldsmith’s Chambers has used the secular criminal law to persuade a recalcitrant husband to grant his client a “get”, the threat of a prosecution for the offence of coercive and controlling behaviour leading to a maximum prison sentence of five years. This is a fascinating breakthrough and has implications not only for other “chained women” in Jewish communities but in the wider world of religious traditions where women are often the victim of unfair religious laws.
Rosalind English discusses the implications of this case with Mr Metzer QC in this week’s episode (No. 103) of Law Pod UK. You may want to refresh your memories on the use of the offence of criminal and coercive behaviour in proceedings in the family courts by listening to Rosalind’s interview with Clare Ciborowska of 1 Crown Office Row in Episode 43.
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
If your domestic mutt makes friends with a wolf, and is prepared to eat and play with this visitor from the wild in your garden, does that deprive said wolf of the protection of the EU rules on the protection of listed species? AG Kokott at the European Court of Justice has just handed down her opinion on this tricky question of conservation referred to the Court.
Background law
The Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora calls for the introduction of a system of strict protection for species, such as the wolf (Canis lupus), which are listed in Annex IV(a) thereto. However, must that system of protection also be applied in the case where a wolf plays with dogs in a village? That is the question that has been put to the Court in these proceedings. As the AG continues
Even in its specific form, that question may be of greater practical importance than one might think. The answer to it will be decisive above all, however, in determining whether the substantively extensive protection of species provided for in the Habitats Directive is primarily relevant to natural and semi-natural areas, that is to say, in particular, to activities such as agriculture, forestry and hunting, or whether it is to be taken into account without restriction in all human activities, such as the operation of roads.
You only have to think about this for a few seconds before realising the far reaching implications of the latter interpretation.
The Court of Appeal has just dismissed the actions in nuisance by residents of flats adjacent to the the Tate Modern art gallery on the south bank of the River Thames in central London. (Disclaimer: the author of this post has just moved into an apartment in the area but has no association with the flats or the residents central to this appeal.)
At the outset of this judgment, the Court observed that
the case, and this appeal, raise important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another and the consequent invasion of privacy of those occupying the overlooked property.
The following discussion quotes from the Court’s own press report. References to paragraph numbers are in bold.
On
Friday, the UK left the EU. In the midst of jubilation, despair, and relief,
questions remain about the human rights implications this decision may have, as
we continue to negotiate the precise terms of our exit. Clause 5 of the European
Union (Withdrawal) Act 2018 already confirmed that the EU Charter of
Fundamental Rights would not be included in ‘retained’ EU legislation after
Brexit. Now, the Conservatives may be able to move forward with their long-term
commitment to repeal the Human Rights Act 1998 and introduce a ‘British Bill of
Rights’. Boris Johnson’s manifesto promise was to ‘update’ the legislation, as
part of a programme of constitutional reform, looking at “the relationship between the government,
parliament and the courts.”
As the coronavirus continues to provoke anxiety,
China has come in for criticism for its handling of the epidemic, in the New York Times and on Human Rights Watch. After concealing new cases in Wuhan in early January, there has been
censorship of online posts about the epidemic, bans on speaking to the media
and journalists, and the government has been interrogating web users accused of
‘spreading rumours’ and ‘publishing and spreading untrue information
online’.
The BBC today published a report following a Freedom of Information request that the NHS “faces paying out £4.3 billion in legal fees to settle outstanding claims in clinical negligence. Read the report here. The vast inflation in damages awards in clinical negligence claims means that the cost to the health services is producing great concern in those who have to address the financial future of the NHS. This is particularly an issue with birth disasters where the life expectancy of the child, however badly damaged, is lengthy and therefore ongoing costs, notably care costs, stretch long into the future. In May 2019, former Court of Appeal judge Rupert Jackson proposed a series of solutions to this problem, including replacing the principle of full compensation with a system of tariffs . This may be along the lines of the current scheme operated by the Criminal Injury Compensation Authority . He also called for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’. You can read Sir Rupert Jackson’s full paper here:
In this episode I’ve brought together two members of 1 Crown Office Row who have spent their professional lives both claiming against and defending the NHS. James Badenoch QC, now retired, maintains that the existence of these claims is justified by the pressure to improve clinical practice.
David Hart QC provides us with the details of the very considerable figures paid out recently by the NHS in settlements and awards. The source of these figures and others can be found here:
So what are the solutions – or what, some might say, are the threats – to the principle of full compensation in the medical context? Do listen to this discussion between two experts in the field.
The news has been nothing
if not dramatic this week. US President Donald Trump arranged for the
assassination of Iranian General Qasem Soleimani by drone strike on Friday. At
Soleimani’s state funeral in Tehran, the streets were filled with crowds chanting
‘death to America!’, and a weeping Ayatollah Khamenei promised that a ‘harsh retaliation’
would come to the USA. The media is full of geopolitical speculation: some say
that this amounts to a ‘declaration of war’ by the USA on Iran, and will lead
to World War III, while others worry about the possibility of nuclear
escalation. The BBC has published this relatively deflationary overview of
the risks, as the situation stands.
British-Iranian
dual citizen Nazanin Zaghari-Ratcliffe, who was imprisoned in 2016 for allegedly
‘plotting to topple the Iranian regime’ and ‘spreading propaganda against Iran’,
remains in prison in the country. Her husband has called for an urgent meeting
with UK Prime Minister Boris Johnson. In light of Mr Johnson’s previous mishandling
of the situation as Foreign Secretary, and his refusal to condemn the killing,
saying on Sunday “we will not lament his death”, Richard Ratcliffe may well
consider that he is entitled to a meeting.
International
concern continues, too, over the 19-year-old UK citizen held in Ayia Napa in
Cyprus, who says that she was compelled to withdraw her allegations of gang
rape against a group of Israeli nationals under duress from Cyprus police. She
was convicted in 2019 for ‘wilfully indulging in public mischief’, and is now
pursuing an appeal process which could take up to three years. Dominic Raab
this week urged the Cypriot authorities to ‘do the right thing’ in deciding her
case.
Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. We were lucky enough to be guided around this fantastic exhibition by the curator, Rosalind Wright CB QC. Listen to Rosalind discuss the first 100 years of women in law with Rosalind English in the latest episode of Law Pod UK here.
The exhibition consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.
Visit the exhibition, and listen along, to see the women past, present and future who have changed the legal landscape at Middle Temple here.
With an election on
the horizon, a coalition of 29 women and human rights organisation has published
a manifesto for women and girls. Their stated goals are to “end violence
against women and girls”; “secure women’s equal representation in politics”; “promote
equality in the workplace and in the home”; “invest in public services”; and “lift
women and children out of poverty”. To
achieve these goals, they propose measures including a new ‘Violence Against
Women and Girls’ bill to lay before Parliament; funding for high-quality sex
and relationships education; improvements to the criminal justice system
regarding allegations of rape and sexual assault; equal pay; increased maternity
pay and maternity allowances; an end to pregnancy discrimination; and a strengthening
of the law on sexual harassment at work, creating a duty on employers to
prevent harassment from occurring. The manifesto is available here.
The backlash
against internet intermediaries and ‘surveillance capitalism’ continues this
week. Amnesty International have released a report entitled ‘Surveillance Giants’,
which analyses in detail the human rights threats posed by Facebook, Google,
and other technology corporations. The report is available here. Meanwhile,
in the courts, Singh LJ granted Ed Bridges permission to appeal the facial
recognition judicial review which he lost in September, noting that Mr Bridges’
appeal had a reasonable prospect of success.
In the latest Henry Brooke Lecture (12th November, hosted by BAILII and Freshfields Bruckhaus Deringer), Supreme Court Justice Lord Sales warned that the growing role of algorithms and artificial intelligence in decision making poses significant legal problems.
He cited as an example a recent case in Singapore. The judge had to decide on mistake in contract – except that the two contracting parties were both algorithms. In that instance the judge was able to identify the human agents behind the programmes, but that will soon not be the case.
R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment
“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)
The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.
The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.
The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.
On Wednesday last week I had the great pleasure of speaking to a fellow South African, which we post in this week’s episode of Law Pod UK. I promise there are no references to rugby in the entirety of the interview. How could we have predicted anything anyway?
Kate O’Regan is the Director of the Bonavero Institute of Human Rights at Oxford University. She is also a former judge of the South African Constitutional Court (1994 – 2009). One fellow judge has said that she is “one of the finest minds ever appointed as a judge in South Africa”.
Our discussion ranges over a multitude of topics, such as the difficulty of reconciling customary law practices with the rights of women under the Bill of Rights, and the problem of enforcing the rule of law in the townships and on public transport in a country where most people are dependent on the state owned Metrorail to get to their place of work.
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