This is a summary of an article published here and inevitably simplifies the detailed arguments and considerations within it. The article represents the views of the author alone.
Note: This article involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.
The ‘lockdown’ imposed by the government to contain the coronavirus and Covid 19, the disease it causes has been enforced mainly through the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’), imposed under powers delegated by the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’).
This article argues that the Regulations are also a disproportionate interference with the rights protected by the European Convention on Human Rights (‘the Convention’); and that, were they challenged by judicial review, should be disapplied if necessary to avoid a breach of s 6 of the Human Rights Act 1998.
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?
COVID-19 continues to dominate the news this week. The death toll in Europe has now risen to over 100,000, with the UK accounting for more than 16,000 of those. Although there appear to be signs that the infection curve is slowing elsewhere in Europe, and vaccine trials are now underway, it seems likely that we are in this for the long haul. UK government chief scientific adviser Patrick Vallance has written in the Guardian this week, explaining the challenges of ensuring any proposed vaccine is safe, and of scaling it up as required.
Pressure is building for the government to publish the findings of ‘Exercise Cygnus’, a three-day flu pandemic readiness exercise conducted in October 2016, as critics note the government’s apparent ill-preparedness for the coronavirus outbreak. According to the Observer, the New and Emerging Respiratory Virus Threats Advisory Group (Nervtag) recommended that the government:
Develop a ‘pandemic influenza concept of operations’ to improve coordination between the ‘complex network of partners’ involved;
Plan for ‘legislative easements’ to deal with the pandemic;
Work on ‘better understanding of the public reaction to a reasonable worst-case pandemic’; and
Strengthen ‘surge capability and capacity in operational resources in certain areas’, especially in respect of excess deaths, social care, and the NHS.
Lib Dem MP Philip Lee has urged Matt Hancock and Michael Gove to answer “when did they read the Cygnus report that has not been published and, having read that report, why did they conclude not to increase testing, PPE, and ventilator capacity in January?”. The Department of Health has insisted that the UK is “one of the most prepared countries in the world for pandemics.”
Concerns about criminal justice during the coronavirus pandemic continue. As the backlog builds up, DPP Max Hill QC has instructed the CPS to seek out-of-court solutions where possible, so as to limit the ‘expanding pipeline’ of cases waiting to be heard. Mr Hill and other voices such as James Mulholland, vice-chair of the Criminal Bar Association, have stressed the importance of deterrent sentences for offences related to COVID-19 and deliberate infection. However, ex-DPP Ken MacDonald QC has urged the courts not to mete out excessive jail term, arguing that prison is not the place for ‘nuisances’.
Lockdown is causing serious damage to family life too. There has been a surge in urgent care proceedings in the family courts, as increased drinking, money worries, and domestic violence put vulnerable children at risk. Unicef has released guidance for authorities on the protection of children during the COVID-19 pandemic. In light of the rise in domestic violence, Home Secretary Priti Patel this week launched an urgent awareness campaign, pledging £2m for domestic violence charities and the Domestic Abuse Commissioner.
Note: This article involves examination of thelegal 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 is important but should not be taken to question the undeniable imperative to follow that guidance.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made by the Health Secretary on 26 March 2020. Understandably, given the speed with which the crisis was and still is developing, the Regulations were made using a statutory emergency procedure, meaning that they were not subject to Parliamentary scrutiny. They have yet to be challenged in the courts. In the meantime, a lively and important debate has developed about whether those regulations are lawful.
This post aims to provide an overview of the key contributions thus far, and to provide a starting point for newcomers to the debate. The summaries below are necessarily incomplete, and each of the pieces referred to is well worth reading in full.
On UKHRB we’ve considered a number of the potential human rights implications of the Covid-19 pandemic and the measures put in place to combat it (Alethea Redfern’s round up is the best place to start, there have been a number of posts since, and there will be a podcast coming up on the subject next week on Law Pod UK). It was only a matter of time before some of these issues started to come before the European Court of Human Rights and, on Wednesday, a case involving the UK Government concerning the impact of Covid-19 on conditions of detention in prison was communicated: Hafeez v the United Kingdom (application no. 14198/20).
Communication of a case takes place where an issue is considered to require further examination and the respondent state is invited to submit written observations on the admissibility and merits of the case. It is also an indication that the Court does not consider the case, on its face, inadmissible.
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:
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.
Derogation under the Convention is governed by Article 15 which states:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
A “public emergency threatening the life of the nation” is defined as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (Lawless v Ireland (No 3) App no 332/57 (A/3),  ECHR 2).
To what extent can the government be held liable for facilitating the imposition of the death penalty in a foreign state?
Since signing the Sixth Protocol to the European Convention in 1999, the UK has refused to extradite or deport persons to countries where they are facing criminal charges that carry the death penalty.
There is no judicial precedent, however, which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country. Therefore, in Elgizouli v Secretary of State for the Home Department  UKSC 10, there were two questions before the Supreme Court:
1. Whether it is unlawful at common law for the Secretary of State to provide mutual legal assistance (in the form of evidence) that will facilitate the death penalty in a foreign state against the individual in respect of whom the evidence is sought; and
2. Whether and in what circumstances it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of European Union data protection law, for law enforcement authorities in the UK to transfer “personal data” to law enforcement authorities abroad for use in capital criminal proceedings.
In a judgment which showed tremendous sensitivity to the primacy of the legislature, a majority of the Supreme Court (with Lord Kerr dissenting) held the provision of mutual legal assistance (MLA) was not unlawful under the common law.
Nonetheless, the Court unanimously allowed the appeal on the second ground under Part 3 of the DPA 2018, overturning the ruling of the Divisional Court.
The Divisional Court has recently handed down a novel decision in R (FNM) v DPP, considering the right of complainants to a fair opportunity to make representations to the Director for Public Prosecutions (“DPP”), and for those representations to be considered, when conducting a review under the Victims’ Right to Review Scheme (“the VRR Scheme”).
The Court held that in circumstances where the DPP had not waited to give the complaint an opportunity to make representations as to whether there should be a criminal prosecution, the decision not to prosecute was materially flawed.
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:
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.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.