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The bandstand on Clapham Common, fenced off while people use the area for daily exercise. Photograph: Guy Bell/REX/Shutterstock. Credit: The Guardian.
Needless to say, the impact of Covid-19 dominated all aspects of life over the past seven days. Given that the week saw the Prime Minister admitted to intensive care with the virus before ultimately being discharged home, this is unlikely to be much of a revelation. The UK Human Rights Blog has published many articles looking in detail at some of the legal challenges posed by Covid-19 and the Government’s response to the pandemic. Of note this week:
Dominic Ruck Keene looks at potential legal challenges to Government policy in respect of coronavirus – here;
Robert Craig considers whether the Coronavirus Regulations might be ultra vires – here;
Darragh Coffey explores the provisions of the Coronavirus Act 2020 – here;
Rosalind English reviews a paper published by the Society of Conservative Lawyers on the consequences of coronavirus for the traditional principle of rule of law – here;
The Royal College of Nurses issued guidance to its members advising them that they could “as a last resort” refuse to treat patients suffering from Covid-19 if they are not given adequate personal protective equipment; and
Police came under increased scrutiny with regards to the exercise of their powers to enforce social distancing measures. The Chief Constable of Northamptonshire had to clarify statements that suggested officers may resort to checking the trolleys of grocery shoppers to determine if items purchased were “essential” or not.
The response to the Covid-19 pandemic by governments across the world has thrown into sharp relief the fact that at a time of crisis the institutions and functions of Nation States are still the key structures responsible for the most basic duty of protecting their citizens’ lives. In the United Kingdom, the recent weeks have seen interventions by the Government in the economy and in the freedom of movement that are commonly seen as unparalleled in the post 1945 era. Continue reading →
Note:In Part One, I set out what I considered to be the Government’s rationale in enacting the Coronavirus Act 2020 rather than relying on existing legislation. In a piece for Law Society Gazette Dr Andrew Blick and Prof. Clive Walker have sought to rebut this rationale and argued that the Government should more appropriately have used Civil Contingencies Act 2004.
In Part One, I considered the background to the Coronavirus Act 2020 and some general aspects of the legislation. Here, I focus on some of the substantive provisions of the legislation and briefly explore the role that human rights law has to play in the management of the COVID-19 crisis.
At this point it bears repeating that the UK Government has not derogated from the ECHR under Article 15. Thus, any measures introduced in response to the Coronavirus must be compatible with the UK’s full human rights obligations under the Convention as transposed in to domestic law via the Human Rights Act 1998. Jeremy McBride has produced an excellent piece on the ECHR Blog, in which he analyses the range of various responses to the COVID-19 crisis through the lens of the Convention obligations. Such an exercise is not possible here due to constraints of space. However, towards the end of this piece I will briefly consider the compatibility of the lockdown restrictions on movement with the UK’s ECHR obligations.
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.
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.
Serco is a private company that was contracted by the UK Home Office between 2012 and 2019 to provide accommodation to asylum seekers living in Glasgow. In July 2018, Serco began to implement the “move on protocol” – a new policy of changing locks and evicting asylum seekers without a court order if they were no longer eligible for asylum support. This put around 300 asylum seekers – who had no right to work or who had no right to homeless assistance – at risk of eviction and homelessness in Glasgow without any court process.
In response to this, the Stop Lock Change Evictions Coalition (“the Coalition”) was formed by various organisations, charities and lawyers who all united for one common purpose – to protect asylum seekers’ human rights, particularly in relation to housing.
Police officers direct traffic in the wake of new legislation
In the News
In the past week, Covid-19 has once again dominated the news, effectively occluding all other topics. Given that Monday evening saw leaders including Emmanuel Macron, Michel Barnier, Donald Trump and Sir Keir Starmer expressing their hopes for Boris Johnson’s swift recovery after his sudden removal to intensive care, this dominance does not seem disproportionate.
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.
This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.
Prof. King argues that these regulations are within the scope of the powers granted to make such Regulations under the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’) as amended. They were passed under the emergency procedure set out in s 45R which means they were not approved by Parliament due to the urgency of the situation.
In this post I make the contrary argument: that the Regulations go well beyond the powers under Part 2A of that Act. I support this claim using only traditional vires arguments. It is also of course the case that the legality of these Regulations also falls to be determined by whether they violate the right to liberty under Article 5 ECHR, located in Schedule 2, Human Rights Act 1998. That issue warrants separate consideration, which I do not seek to undertake in this post.
Following the sad news of the first death in custody from COVID-19, a question arises: what are likely to be the issues at inquests into the deaths in custody from COVID-19?
Article 2 and the central issues
Not all deaths in custody mandate an Article 2 inquest (see R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin); R (Tyrell) v HM Senior Coroner for County Durham and Darlington [2016] EWHC 1892 (Admin)). An Article 2-compliant inquest must be undertaken when there has been an arguable breach of the substantive obligation to protect life. When a death occurs in custody, Article 2 will be engaged if there have been any arguable failings in the care provided.
In the Christian Brothers case Lord Phillips of famously declared that “the law of vicarious liability is on the move”. The recent decision of the Supreme Court in Barclays Bank v. Various Claimants[2020] UKSC 13 has brought that movement to a juddering halt. The question posed by the appeal was a simple one. Is it possible to be vicariously liable for the acts of a self-employed ‘independent contractor’?The answer the Court gave in this case was ‘no’.
Factual Background
The group litigation concerned the vicarious liability of Barclays for sexual assaults in the 1970s and early 1980s. The alleged assaults were committed in the North East by a now deceased general practitioner: Dr Bates.
Dr Bates was a self-employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants – many of them aged 16 or under – to pass pre-employment medical examinations as part of its recruitment procedures. Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed “Barclays Confidential Medical Report”. Dr Bates was paid a fee for each report. If the report was satisfactory, the applicant’s job offer would be confirmed, subject to satisfactory GCE examination results.
Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It was alleged that Dr Bates sexually assaulted 126 claimants in the group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays.
The Supreme Court has held that a defendant hospital trust must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.
As a result of admitted negligence the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her amongst many other ghastly consequences of the repeated fault of the Trust.
Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant came from a large family and had always wished to have four children. Her preference was to enter into a commercial surrogacy arrangement in the USA and she sought the cost of doing so as damages. She sought to use the stored eggs but also to rely on surrogacy with donor eggs fertilised by her husband’s sperm. The defendant argued that it should not have to pay damages to reflect the cost of UK surrogacy, the use of donor eggs and of the American commercial surrogacy.
In R (DN – Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, the Supreme Court held that the Claimant was entitled to purse a claim for unlawful detention on the basis that the decision to detain for the purposes of deportation could not be separated from the decision to deport. Accordingly, if the decision to deport was unlawful, then so inevitably was the decision to detain.
Background
The Claimant had in 2000 been granted refugee status and indefinite leave to remain on the basis of a well founded fear of persecution as a Hutuif he was returned to Rwanda. He was subsequently convicted of a number of offences, the most significant of which was assisting unlawful entry of a non-EEA national (his niece) into the UK. He was subsequently sentenced to 18 months imprisonment.
The decision to detain
Having completed the custodial element of his sentence, the Home Secretary decided to deport him on the basis of article 33(2) of the Refugee Convention which allows the expulsion of refugees “whom there are reasonable grounds for regarding as a danger to the security of the country”. It was said that he had been convicted of a “particularly serious crime” and that he “constituted a danger to the community”.
At this point, it is almost trite to say that we are living through unprecedented events. The global spread of the Coronavirus pandemic poses serious challenges to society. So far, the global death-toll has exceeded 21,000 and life as we know it in the UK has changed dramatically. In response to this crisis the Government has announced drastic measures in order to curb the spread of the virus and to support those who may be affected. Indeed, it seems that Cicero’s famous injunction to let the welfare of the people be the highest law has gained a new relevance in the age of COVID-19.
As readers of this blog will probably know, a significant plank of the Government’s legislative response is the Coronavirus Act 2020, which received royal assent on 25 March having been fast-tracked through Parliament. This substantial piece of legislation –which consists of 102 Sections, 29 Schedules and runs to just under 360 pages– is intended to deal with the various challenges that may be posed by the Coronavirus epidemic. As a result, its provisions are broad ranging, touching on areas as diverse as powers to disperse gatherings, pensions, sick pay, inquests and investigatory powers to name but a few.
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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The bandstand on Clapham Common, fenced off while people use the area for daily exercise. Photograph: Guy Bell/REX/Shutterstock. Credit: The Guardian.
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