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R (W, a child) v Secretary of State for the Home Department, Project 17 intervening [2020] EWHC 1299
Does the common law protect the right of foreign residents to relief from destitution?
In this judgment on the Home Secretary’s “no recourse to public funds” (NRPF) policy, the Divisional Court of the Queen’s Bench Division has confirmed that it does, citing authority going back to the time of the poor laws.
The judgment will come as a welcome relief to migrants with human rights visas who may be struggling in the wake of the Covid-19 pandemic. It also provides insight into the interaction between the common law and the Human Rights Act 1998.
Since 2017 the rate and volume of rape prosecutions in the UK have fallen steeply, collapsing to the lowest level since records began. The reasons for this are unclear.
In Episode 114 of Law Pod UK, Emma-Louise Fenelon speaks to Jennifer MacLeod from Brick Court Chambers about two judgments recently handed down by the Divisional Court concerning challenges brought against different aspects of CPS rape prosecution policy:
What is international law for, if it cannot be enforced against the country responsible for breach? That is the question raised by a recent report documenting a series of steps by the Chinese Communist party to conceal from the World Health Organisation and the rest of the world the outbreak and human-to-human transmission of coronavirus. If we want a rules-based international order to mean anything, the authors of the report point out, it must be upheld.
In a world in which authoritarian states often act with impunity, it is tempting to forget that the rules-based international order places obligations on everyone. The Peoples’ Republic of China (PRC) is no exception to this rule. International law – in the form of Treaties, Covenants and Charters – places obligations on China, just as much as it does on the democracies of the West.
This paper identifies a number of possible legal avenues by which the wider world can pursue the PRC for the damages inflicted by its response to the COVID-19 outbreak.
I will attempt a summary of the report in the following paragraphs.
The WHO and the International Health Regulations 2005
The International Health Regulations (IHR) were adopted by the World Health Assembly, the decision-making body of the World Health Organisation (WHO). The IHR were designed to prevent the international spread of disease by placing obligations on states to prevent certain highly-transmissible diseases that were named and notifiable. The IHR were revised in 2005, in response to the 2003 SARS 1 outbreak, and entered into force in 2007.
In the current circumstances, this case has important resonances and maybe even implications for future vaccinations. It was an appeal by the parents of a ten year old child against a decision that the local authority, had lawful authority to have the child vaccinated (pursuant to Section 33(3) of the Children Act 1989.
The local authority had made care and placement orders in respect of the child, who was at the time in foster care. The LA argued that it had lawful authority, pursuant to the Children Act 1989 s.33(3), to arrange the vaccination of a child in care notwithstanding the objection of the parents, and that therefore it was unnecessary and inappropriate to refer the decision to the High Court under its inherent jurisdiction. Parental views regarding immunisation had always to be considered but the decision depended solely on the child’s welfare.
Philip Havers QC of 1 Crown Office Row will be leading a challenge to the lockdown measures adopted by the government in response to the Covid-19 pandemic.
The new contact tracing app (NHSX) is due to be rolled out in the rest of the UK some time after the Isle of Wight trial in May. Is this a way out of lockdown or an irreversible erosion of our privacy? In the latest episode of Law Pod UK Rosalind English talks to Professor Lilian Edwards of Newcastle University, whose Coronavirus (Safeguards) Bill 2020 seeks to address some of these concerns, particularly potential issues of coercion and discrimination. See our previous post reporting on the Webinar “The Covid-19 App – does it threaten privacy rights” held by Professor Edwards and others on 13 May.
It emerged this week that Dominic Cummings drove 250 miles from London to Durham with his wife and child to be with his parents, while his wife was experiencing symptoms of COVID-19. In so doing, Mr Cummings appears to have flouted the government guidance of which he was one of the architects. Leading Tory MPs have called for the Prime Minister to sack Mr Cummings, but he has refused to do so, saying that Mr Cummings “followed the instincts of every father and parent”, and “has acted legally, responsibly, and with integrity”.
Apparently in response to the incident, a rogue Civil Service employee tweeted from the official Civil Service Twitter account “Arrogant and offensive. Can you imagine having to work with these truth twisters?” The Tweet was swiftly deleted, and a Cabinet Office investigation is under way into how it was released.
The situation in Hong Kong has escalated again this week, as Beijing gears up to enact Article 23 of the Basic Law, Hong Kong’s ‘mini-constitution’ of 1997, and impose national security laws to prohibit “treason, secession, sedition [and] subversion”. Protesters have been out in force in defiance of coronavirus restrictions, and police have repeatedly made use of tear gas, pepper spray, and water cannons. Notably, protesters have started to call for full independence for Hong Kong, which has not previously been one of the pro-democracy movement’s official objectives.
In the latest episode of Law Pod UK, Robert Spano, who recently commenced his tenure as President of the European Court of Human Rights in the difficult circumstances of lockdown and remote working, discusses with Rosalind English the challenges we face with automated decision making and governmental interference with our lives. The pandemic has sharpened this question, as the lifting of restrictions is made contingent on various automated projects such as the contact tracing app, which we will be considering in the next episode. Spano explains that rapid advances in AI will not just require new legal and regulatory responses. Artificial intelligence will also fundamentally alter the institutional capacities and legitimacy of courts as sources of governance. How will AI reshape our understandings and implementations of law? How will it reshape the internal workings of courts? Listen to Episode 112 to find out more.
In a complicated but very important decision, the High Court has ruled as a preliminary issue that the procedural protections under Article 6 which require a person to be given sufficient information about the allegations against them so they can give effective instructions to their lawyers will apply to a challenge to conditions imposed by order on a man suspected to have affiliations to Al-Qaeda.
This ‘extended look’ will explain the background to the issues in play and the way that a powerful ‘cocktail’ of rights under Articles 6 and 8 ECHR operates to try to ensure that a balance is struck between the rights of the individual and the collective interest in security.
Temporary Exclusion Orders
The claimant, QX, is a British national. He is married with three children who are all of toddler age. In October 2018, he and his wife were arrested in Istanbul.
On 26 November 2018 the Secretary of State successfully applied to the court for permission to impose a Temporary Exclusion Order (TEO) on QX for two years on grounds of national security. This was granted by the court and on 9 January 2019 QX was returned from Istanbul to the UK under the terms of the TEO.
A TEO is an order which may be imposed under the Counter-Terrorism and Security Act 2015 (“the 2015 Act”) in order to temporarily disrupt the return and activities of a citizen suspected of being involved in terrorist-related activity abroad to manage the risk that they may pose to the public. It is an offence triable in either the Magistrates’ or the Crown Court with a maximum sentence of 5 years if a person does not comply with TEO conditions without reasonable excuse.
I wrote up Jay J’s dismissal on the challenge to the lawfulness of trading restrictions in the 2018 Ivory Act here. The details of the appellant’s role and their arguments, as well as the reasoning behind the judge’s decision, are set out in that post. The thrust of the initial claim was that the prohibitions in the Act went too far and were disproportionate under Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union (“TFEU”). The question before the Court of Appeal was whether the judge applied the proportionality test correctly.
The overarching complaint was that the evidence base was insufficient. The appellant’s criticisms of Jay J’s analysis can be summarised as follows:
(i) wrongful use of the precautionary principle and the acceptance of inadequate evidence to support the bans;
(ii) failure to take account of the failings in the Impact Assessment which preceded the Bill and the according of too much deference to Parliament; and
(iii) violation of the principle of respect for property and the wrongful failure to require a right to compensation.
The Court of Appeal noted that this appeal has arisen whilst the United Kingdom is in the transition period following exit day from the European Union. It sufficed to record that until the end of the “Implementation Period”, which is presently set at 11pm on 31st December 2020, the same rules apply as they did prior to exit day.
This afternoon, health secretary Matt Hancock made a statement in the Commons updating the house on the government’s response to the crisis.
The health secretary announced that anyone in the UK aged five and over who has coronavirus symptoms will be eligible for a test. From today, recognised symptoms include the loss of smell and taste, as well a persistent cough and a high temperature. Hancock confirmed for the first time that the government has recruited over 21,000 contact tracers, including 7,500 health care professionals, to manually trace and get in contact with anyone who has tested positive.
In addition, he offered a degree of clarification in relation to the government’s new contact tracing app. The function of the app is to alert people of the need to self-isolate if they have come into proximity with an individual who reported coronavirus symptoms.
In the rush to lift the lockdown with safeguards, the government has given a green light to “contact tracing” via bluetooth apps on our smartphones (provided we own them and are willling to take up the app). See Rafe Jenning’s post on the technology behind this project.
Just to remind us what contact tracing via bluetooth apps means, I will recapitulate what Lord Sandhurst says in his introduction.
The government propose a centralised model, under which, I download the centralised app on to my phone. I will keep the phone, and the app, switched on at all times. It will record the identity of the phone of any person to whom I pass close and save that information. If I learn that I am infected I get that phone to pass that information to the central server of NHSX. The server then sends a message to all people with whom I’ve been in contact within a relevant time period, that tells them that they are at risk of infection but not directly, and from whom
This is a fast moving development and indeed this post may be rendered otiose in a week’s time, particularly as the UK does not, as yet, have entirely reliable antibody tests ( news just in is that this may change.) But on 13 May we had the benefit of a virtual gathering of legal experts in data protection, human rights and constitutional law facilitated by, amongst others, Lord Sandhurst (formerly Guy Mansfield QC of 1 Crown Office Row), on the results of the first test run of the tracing app in the Isle of Wight, courtesty of the Society of Conservative Lawyers.
Manning, R. v (Rev 1) [2020] EWCA Crim 592 (30 April 2020) — judgment here
On 30 April 2019, giving the lead judgment in the Court of Appeal, the Lord Chief Justice considered that the impact of a custodial sentence is likely to be heavier during the coronavirus pandemic than it would otherwise be, and that this was a factor that judges and magistrates can and should keep in mind when sentencing.
Two jury trials will resume at the Old Bailey this week in the first steps toward Crown court cases restarting around the country. It has been almost two months since jury trials were suspended on 23 March amid coronavirus lockdown measures.
In his announcement, the Lord Chief Justice, Lord Burnett of Maldon, began by affirming that “the practice of trial by jury sits at the heart of our criminal justice system.” In contrast, the Lord Chancellor, Robert Buckland QC, began his statement with a more equivocal comment about a well-functioning justice system being the hallmark of a healthy democracy.
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