Media By: Rosalind English


The latest critique of the Coronavirus Act 2020

13 May 2020 by

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”


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Remote advocacy: ALBA Guidelines

5 May 2020 by

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

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


Law Pod UK is available on 
Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts.

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

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

20 April 2020 by

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:


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The Climate Change Act, Heathrow and HS2

17 April 2020 by

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 PodcastsAudioboom, Player FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 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

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.


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

9 April 2020 by

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.


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New Episode of Law Pod UK

9 April 2020 by

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)


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Another skirmish on the boundaries of vicarious liability: data protection this time

7 April 2020 by

WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12 On appeal from: [2018] EWCA Civ 2339 – read judgment

The following summary is based on the Supreme Court’s press report.

This appeal concerned the circumstances in which an employer can be held to be vicariously liable for wrongs committed by its employees, and also whether vicarious liability may arise for breaches by an employee of duties imposed by the Data Protection Act 1998 (“DPA”).

The appellant operates a chain of supermarkets and employed Andrew Skelton on its internal audit team. In July 2013, Skelton received a verbal warning after disciplinary proceedings for minor misconduct and bore a grievance against the appellant thereafter. In November 2013, Skelton was tasked with transmitting payroll data for the appellant’s entire workforce to its external auditors, as he had done the previous year. Skelton did so, but also made and kept a personal copy of the data. In early 2014, he used this to upload a file containing the data to a publicly accessible filesharing website. Skelton later also sent the file anonymously to three UK newspapers, purporting to be a concerned member of the public who had found it online. The newspapers did not publish the information. Instead, one alerted the appellant, which took immediate steps to have the data removed from the internet and to protect its employees, including by alerting police. Skelton was soon arrested and has since been prosecuted and imprisoned.


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Covid-19 Movement restrictions: German courts

30 March 2020 by

Thanks to David Anderson (@bricksilk) for his latest post about the validity or otherwise of the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and whether they are within the scope of the powers conferred upon the Government by statute. Anderson calls for reports on legal developments across Europe in response to the pandemic. He has provided links to interesting rulings in Germany, specifically Bavaria which has some of the most restrictive curfews. Here’s my attempt at a translation/paraphrase of the press reports of two of these decisions.

In a nationwide comparison, the Bavarian regulations are particularly strict compared to the other Laender [see the table above]. However, there is now public resistance to the Bavarian movement restrictions . On 24 March the Administrative Court in Munich confirmed the effectiveness of the Bavarian movement restrictions that were provisionally suspended in two individual cases. However, the validity of the restrictions remains untouched, according to the court.

The court ruled that the Bavarian state government should amend their rules after the introduction of initial restrictions in the Corona crisis after successful challenges were made by two citizens. However the initial restrictions remain valid nationwide.

Prime Minister Markus Söder (Christian Social Union) said after a cabinet meeting in Munich on Tuesday, that following this ruling the legal basis of these movement restrictions would be changed immediately, although until such changes come into force, he stressed that the initial restrictions still apply.

Leaving one’s own home has been prohibited everywhere in Bavaria with only limited exceptions. These exceptions include travelling to work and necessary shopping, urgent visits to the doctor, sports and walks in the fresh air – but only alone or with the people with whom you share a home.

The chamber of the Administrative Court responsible for health law has temporarily suspended the effect of the initial restrictions in favour of two
individuals “for formal reasons” (decision of 24.03.2020, Az. 26 S 20.1252 and M 26 S 20.1255). The substantive legality of the curfews was not called into question in the court. In its statement of grounds, the court merely doubted whether it was permissible for the Free State of Bavaria to have made these initial restrictions by way of general (administrative) decree rather than by statutory instrument.

The court’s decisions only had an effect in relation to the two applicants.
Restrictions remain valid for all other people in Bavaria, and therefore nothing would change, the court emphasised.


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Rights in a time of quarantine – Law Pod UK

20 March 2020 by

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.


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Doctor/patient confidentiality in genetic disease case

29 February 2020 by

ABC v St George’s Healthcare Trust and others [2020] EWHC 455 (QB)

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.)


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Law Pod UK latest episode: Coercive and Controlling Behaviour

24 February 2020 by

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.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts.

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

Vice-President of the Strasbourg Court Robert Spano’s response to Jonathan Sumption’s Reith Lectures

20 February 2020 by

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.

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Canis Lupus in agro hominis

20 February 2020 by

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.


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