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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.
Among legal commentators, the focus has been on the Coronavirus Bill 2020. The regulations, to which the United Kingdom became subject on 26 March, are the most severe restrictions ever imposed on liberty in this country, going far beyond the wartime measures in the Defence of the Realm Act 1914 and the Emergency Powers (Defence) Act 1939. But most accept that they are also vital to the global fight against the virus.
Perhaps the most prominent figure among those who do not appear to accept the measures as necessary is former Supreme Court judge Lord Sumption, who warned a week ago, before the legislation came into force, that the UK was in danger of becoming a “police state.”
Since his statement, the first Covid-19 convictions have begun to come through the courts. A man who coughed on a police officer, threatened to bite him, and claimed to have the virus was convicted of assaulting an emergency worker and jailed for six months. A man who boasted on social media of visiting a hospital without a medical reason was jailed for 12 weeks after he pleaded guilty to causing a public nuisance and admitted breaking the emergency restrictions. Perhaps most significantly, British Transport Police admitted to incorrectly charging a woman under the Act; the woman was detained for two days and fined £660. Meanwhile, a solicitor representing a 17-year-old arrested for gathering with five others attacked the “ridiculous” decision to bring multiple defendants into court in custody, thereby exposing a substantial number of other people to the risk of contracting the virus.
Other lawyers have since echoed Sumption’s warning, including the head of serious and general crime at Hickman & Rose solicitors.
In contrast, Professor Jeff King has published a two-part article on the UK Constitutional Law Association (“the UKCLA”) blog entitled “The Lockdown is Lawful,” in which he asserts that he is satisfied that the lockdown legislation is fundamentally compatible with human rights principles.
Shortly afterwards, lawyer and journalist David Allen Green claimed the same blog had refused his offer to write a response criticising the regulations, and stated UKCLA were “not showing the true breadth of the current constitutional concerns.” However, he also said he was satisfied, for the time being, that the required debate was taking place on other blogs and sites. In particular, Tom Hickman QC, Emma Dixon and Rachel Jones argued on the Blackstone blog that a “plausible” defence of the legal basis for the regulations could be mounted before a sympathetic court, but suggested respects in which they could be “tightened, reinforced and improved to enhance legal certainty and civil liberty.” In addition, Robert Craig’s response to Professor King on this blog went further still, concluding that “the legal underpinnings of the provisions are so thin it is difficult to see how their vires can remain unquestioned.”
A few months ago, it was already a stock observation that the political upheavals of the past few years would make their way into constitutional law textbooks. As a new debate begins, it seems the books have more amendments in store.
In Other News
Among the important items of news which have been overshadowed by the virus recently is the publication of the long-awaited “Windrush: Lessons Learned Report” published on 19 March. It is available in full here. Among other findings and recommendations, the report called on the government to provide an unqualified apology to those affected, found that misconceptions and ignorance on race contributed to the scandal, suggested some Windrush victims remain vulnerable to homelessness and unemployment due to Home Office policies, and stated the Home Office’s ‘target-dominated’ work environment fostered defensiveness and a lack of empathy.
In addition, the Post Office has used the outbreak to justify delaying the launch of a scheme to independently assess applications from current and former postmasters who believe they experienced shortfalls related to previous versions of its computer system Horizon. A spokesperson said that the Post Office’s “immediate focus is to prioritise support for our postmasters through the current coronavirus health crisis.” Postmasters were prosecuted and imprisoned after the Horizon accounting system allegedly showed their branches to be in deficit. Others were fired, lost their homes, suffered ill health, declared bankruptcy, or committed suicide. The scheme was promised after the Post Office paid a landmark £57.75 million settlement late last year after more than 550 claimants brought legal action. The settlement was finally reached after an appeal was rejected by Lord Justice Coulson in a searing judgement, in which he stated that the appeal was based on the premise that the Post Office “was not obliged to treat [postmasters] with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner.”
In the Courts
Whittington Hospital NHS Trust v XX [2020] UKSC 14: by a majority, the Supreme Court dismissed an appeal against the Court of Appeal’s decision to award a claim for the costs of commercial surrogacy and the use of donor eggs, after a series of negligent cervical smears and biopsies failed to detect the claimant’s cervical cancer before it was too far advanced for her to retain the ability to bear her own child. This was in spite of the fact that commercial surrogacy arrangements are banned in the UK under s2(1) of the Surrogacy Arrangements Act 1985. Lord Carnwarth dissented on the basis that it would go against the broad principle of legal coherence for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. A full summary can be found here.
Barclays Bank plc v Various Claimants [2020] UKSC 13: the Supreme Court unanimously allowed Barclay’s appeal against the decision that it is vicariously liable for 126 sexual assaults allegedly committed between 1968 and 1984 by the late Dr Gordon Bates, a self-employed medical practitioner whose work included conducting medical assessments of prospective Barclays employees. The Court held that, since Dr Bates was an independent contractor and not a Barclays employee, it cannot be held liable for his wrongdoing. A full summary can be found here.
WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12: the Supreme Court unanimously allowed an appeal against a decision that the appellant was vicariously liable for a disgruntled employee’s deliberate decision to upload payroll data for the appellant’s entire workforce to a publicly accessible filesharing website, in breach of the Data Protection Act 1998. The Court held that, since the employee was not engaged in furthering his employer’s business, but was rather pursuing a personal vendetta, the “close connection” test was not satisfied, and so the employer was not liable.
The Secretary of State for the Home Department v FTH, R. (On the Application of) (Rev 1) [2020] EWCA Civ 494: the Court of Appeal allowed an appeal against the Upper Tribunal decision that the “expeditated process” employed by the Secretary of State, in her attempt to deal with children in the Calais refugee camp who refused to make asylum applications in France and claimed to have close relatives in the UK, had breached article 8. The Secretary of State had breached her common law obligations of procedural fairness due to deficiencies in the expedited process, but not article 8. The Court restricted the tribunal’s declaration to reflect this decision, and quashed an order for the Secretary of State to pay damages, since damages were dependent on a finding that she had been in breach of article 8.
On the UKHRB
Guest contributor Robert Craig analyses some of the restrictions on movement of individuals announced by the government, arguing that they raise serious constitutional concerns.
Gideon Barth asks what the issues at inquests into deaths in custody from Covid-19 are likely to be.
Robert Kellar QC provides an overview and assessment of the recent decision of the Supreme Court in Barclays Bank v Various Claimants [2020] UKSC 13.
William Edis QC assesses the Supreme Court’s decision to hold a defendant hospital liable for the costs of a commercial surrogacy arrangement in Whittington Hospital NHS Trust v XX [2020] UKSC 14.
Dominic Ruck Keene offers an assessment of R (DN – Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, in which the Supreme Court held the Claimant was entitled to pursue a claim for unlawful detention.
In the first post of a two-part series, Darragh Coffey explores why the Coronavirus Act 2020 was considered necessary, and outline some general aspects of the Act.
Rosalind English summarises the decision of the Supreme Court in WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12, concerning vicarious liability in relation to breaches of the Data Protection Act 1998.
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.
A police officer enforces the lockdown in Greenwich Park. Image: The Guardian
Essential caveat
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”.
Police in Brighton prepare to enforce social distancing. Image: The Guardian
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.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
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.
The following post was written on the morning of 26 of March 2020. Today, 27th of March, the Chief Coroner brought out Guidance 35 on hearings during the pandemic (no. 35), with the proviso that all these issues will be kept under review.
On the 26th of March the Chief Coroner published Guidance Note 34 (“GN34”) on COVID-19 which can be found here. The Guidance Note addresses many of the issues relating to the impact of COVID-19 on the coronial service. We set out below some answers to questions those involved with the coronial system may currently have in mind, taken from the Guidance Note and other sources (“GN34#(No.)” refers to paragraph numbers in the Guidance Note).
1) Are Coroners’ Courts conducting hearings at the moment?
GN34#10 provides that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”
It is also noted that
All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business
The United Nations Convention on the Rights of the Child (‘the UNCRC’) celebrated its 30th anniversary on 20 November 2019. On the same day, the Scottish Government announced its plans to incorporate the UNCRC into Scots law. This means that the treaty will form part of domestic law in Scotland and its provisions will be enforceable by the courts. This is the result of many years of campaigning by children’s rights groups and civil society organisations.
What is the UNCRC?
The UNCRC is the most widely ratified international human rights treaty in history. In total, 196 countries have ratified it, with the USA being the only country in the world that is yet to do so.
It is the most comprehensive statement of children’s rights that exists, covering all aspects of a child’s life. It includes civil and political rights to economic, social and cultural rights, and even includes rights such as the right to play. Four general principles guide the implementation of the treaty: freedom from discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right to be heard (Article 12).
Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 – read judgment
On 12 March 2020 a unanimous Court of Appeal led by Sir Ernest Ryder (Senior President of the Tribunals), together with Lord Justice Bean and Lady Justice King, allowed the Appellant’s appeal against the First tier Tribunal (“FtT”) and Upper Tribunal (“UT”)’s decisions upholding the refusal of his application for leave to remain.
The case concerns the correct approach to the interpretation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in circumstances arising out of a foster care relationship where the person who had received or continued to receive that care is now an adult.
Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
Good news from the crisis front, although I’m afraid not the one we’re all thinking of: the government’s Agriculture Bill, which sets out its major post-Brexit agricultural policy, has recently passed committee stage and will soon (coronavirus permitting) be presented to the House of Lords. It shows ambition from the government to develop a post-Brexit agriculture policy with laudable commitments to harnessing the power of farmers to help address the climate crisis, and helps to address issues such as food security. Along with the Environment Bill, discussed here, it constitutes some of the core legislation aimed at achieving the government’s Net Zero by 2050 goal.
The government’s haunting refrain, since their 2018 ‘Health and Harmony’ consultation on post-Brexit agricultural policy, has been “public money for public goods”. The bill puts this into practice by giving the secretary of state power to dismantle the subsidy schemes of the Common Agricultural Policy (CAP) and replace it with the Environmental Land Management Scheme (ELMS). Under this scheme, farmers will be awarded for specific activities with ‘public goods’: good practices that further environmental goals in areas such as biodiversity and soil health that the market does not sufficiently incentivise.
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