Intersectionality and equality: a view from the Constitutional Court of South Africa

26 November 2020 by

Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

The house owner did not hear when Ms Mahlangu drowned in the family swimming pool. She was a domestic worker who had given 22 years of her life to tending to that family’s needs. Like most domestic workers in South Africa, she was a Black woman. Her daughter – Sylvia Mahlangu – sought to claim compensation from a statutory fund set up for employees who suffer injuries at work. Her claim failed because the legislation excluded domestic workers, like her mother, from the definition of ‘employee’ (see here, (xviii)(d)(v) excluding “a domestic employee employed as such in a private household” from compensation). 

The Constitutional Court of South Africa unanimously held that the exclusion of domestic workers from the statutory definition of employee breached the right to equality  (see here), and, by majority, the rights to dignity and to social security.  What I wish to focus on in this post is the diverging approaches to equality between the ‘dissenting’ judgment of Jafta J, on the one hand, and the ‘majority’ judgments of Victor AJ and Mhlantla J, on the other.  In particular, I wish to focus on the way Victor AJ and Mhlantla J relied on the concept of ‘intersectionality’ to understand what was truly constitutionally offensive about excluding domestic workers from the statutory definition of employee.  What follows is a necessarily high-level overview (at the risk, I accept, of being somewhat blunt). I hope the reader will understand that it is due to the constraints of space in a blog-post; I can only direct the interested reader to the judgments themselves. 


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Successful insurers’ A1P1 claim concerning benefits reimbursement in asbestos claims

25 November 2020 by

R (o.t.a of Aviva & Swiss Re) v. Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin)

At first sight, a rather abstruse dispute, but the 63 page judgment of Henshaw J gives rise to a host of important and difficult human rights points. But his central conclusion is that a statute which was not challengeable at the time of its enactment became so, because of the subsequent evolution of the law, principally common law, to the detriment of insurers.

Sounds mildly counter-intuitive? Not, I think, so, when the story has unfolded.


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Article 2 and the provision of healthcare — Part 3

24 November 2020 by

Inside the main hall of the Royal Courts of Justice. The Court of Appeal undertook a detailed consideration of article 2 this year.

This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa and part 2 considered how it has been interpreted and applied. In this final part, the latest decision of the Court of Appeal this year will be analysed and the overall trend in the law explained.

R (Maguire) v HM Senior Coroner for Blackpool [2020] EWCA Civ 738

The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in the decision in Maguire.  This case concerned the death of a patient with Down’s syndrome, learning difficulties and limited mobility who had lived in a residential care home and was subject to deprivation of liberty safeguards.  In the days prior to her death she had been ill but had not cooperated with attempts to take her to hospital and the decision was taken to care for her at the home overnight.  She deteriorated and was admitted to hospital where she later died.  The cause was a perforated gastric ulcer, peritonitis and pneumonia. 

The claimant argued that the circumstances of the death engaged the procedural obligation to hold an enhanced inquest under article 2.  Whilst agreeing initially, and holding a jury inquest, the Coroner subsequently revisited his decision in light of the Divisional Court’s judgment in Parkinson.  Having heard the evidence, he did not consider there was any arguable breach of the substantive operational duty under article 2 and hence the procedural duty was not triggered.  A conclusion of natural causes was recorded with a short narrative description of events. 


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Article 2 and the provision of healthcare — Part 2

23 November 2020 by

Article 2 ECHR

This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa. In this part, the way that this case has been addressed will be considered.

Criticism of the approach in Lopes de Sousa

It will be apparent that the requirements for a breach of the substantive obligation under article 2 set by the Grand Chamber overlap to some extent, and it is difficult to understand how all the factors identified in denial of treatment cases can be cumulatively required, as opposed to being alternative bases for a violation in some instances.  On any view, however, the overall effect is extremely restrictive and has been criticised as such, not least in a powerfully worded dissenting judgment from Judge Pinto de Albuquerque:

For a State to avoid international-law responsibility under the Convention, it is not sufficient for health-care activities to be circumscribed by a proper legislative, administrative and regulatory framework and for a supervisory mechanism to oversee the implementation of this framework, as the Court held in Powell […] By evading the question of the specific protection of the individual right of each patient and instead protecting health professionals in an untouchable legal bubble, Powell renders the Convention protection illusory for patients. Powell seeks a Convention that is for the few, the health professionals and their insurance companies, not for the many, the patients. This must be rejected outright. [64]

[…]

This case could have been a tipping point. The Grand Chamber did not want it to be that way. I regret that, by rejecting a purposive and principled reading of the Convention, the Court did not deliver full justice [94]

Judge Serghides, also dissenting, but in less trenchant terms, regretted the Grand Chamber had “missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.” [15]


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Article 2 and the provision of healthcare — Part 1

19 November 2020 by

The European Court of Human Rights at Strasbourg

This three-part extended analysis will discuss the important recent authorities on article 2 ECHR in the context of the provision of healthcare and identify important trends in the development of the law in this area.

Where article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authority suggest an increasingly restrictive approach.


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The Weekly Round-up: Workers’ Rights and Personal Protective Equipment

16 November 2020 by

Photo: Jernej Furman

In the news

Dominic Cummings departed from Downing Street in dramatic fashion this week. The departure may herald a change of tone for this government – but in the meantime, criticisms of government measures continue on human rights grounds.

The Joint Committee on Human Rights this week published two reports.

The first report provided legislative scrutiny of the Covert Human Intelligence Sources (Criminal Conduct) Bill. This contains a proposal to grant government agencies (of every shape and size, including the Food Standards Agency and the Competition and Markets Authority) the power to authorise undercover operatives to commit acts in the course of their undercover activities that would be otherwise criminal.  The Committee’s conclusion was that the Bill does not contain adequate safeguards and oversight to prevent abuse of the proposed powers to authorise such conduct. Their report recommends a requirement for prior judicial approval before a public body can provide a criminal conduct authorisation, along with an upper limit on the type of criminal conduct that can be authorised, and a reduction in the range of public authorities with these powers, and The report is available here.

The Committee has also published a report on the human rights of black people in the UK. They have called on the government to set out a comprehensive Government race equality strategy, based on increased data collection. In particular, they have urged a focus on ending racial disparities associated with the security services (police and Home Office), democratic participation (unequal voter registration), and healthcare (the maternal mortality gap). They have also recommended that the Equality and Human Rights Commission be given stronger powers so that it can do more to tackle race inequality in the UK. The report is available here.


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Maughan: Suicide and Unlawful Killing Conclusions in Inquests

13 November 2020 by

R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46

The Supreme Court has now issued its judgment in this important case for Coroners and inquests dealing with the standard of proof to be applied where the death might have been caused by suicide or unlawful killing.

Everyone who has done an inquest where these conclusions were realistic on the evidence has traditionally gone along with the idea that in order to be satisfied that either conclusion should be returned the criminal standard of proof was required.

This is often seen in practice, particularly where suicide is concerned, as being a way for Coroners to return an open verdict where there is no positive and direct evidence that the deceased intended to take his or her life, even if the surrounding circumstances point clearly in that direction. Such an approach can be welcome to families grieving the loss of a family member.

However, that all changed with the judgment of the Divisional Court and then the Court of Appeal in this case (see my earlier blog post on this judgment here). This long held practice was held to be devoid of a sound legal basis and that given that the inquest was not itself a criminal proceeding then the civil standard ought to be applied. The Supreme Court has now confirmed that that is right, albeit by a majority of 3 to 2.

The result is that all forms of conclusion in the coroner’s court whether narrative or short form are to be rendered on the balance of probabilities. This includes suicide and unlawful killing.


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Law Pod UK new episode: AI in Healthcare

9 November 2020 by

Artificial intelligence (AI) aims to mimic human cognitive functions. It is bringing a paradigm shift to healthcare, powered by increasing availability of healthcare data and rapid progress of analytics techniques. Robert Kellar QC of 1 Crown Office Row joins Rosalind English in the latest episode of Law Pod UK to answer some pertinent questions about the application of AI in healthcare and what it means for clinical negligence and other forms of litigation and regulation in medicine.

Will we come to a point when healthcare providers will be under a duty of care to use Artificial Intelligence? At some point the argument is likely to be raised that the advantages of AI are so stark that it would be illogical or irresponsible not to use it. What would this mean for the Bolam test? And for the courts – a judge hearing a clinical negligence case where the issues turn on algorithms may need to be more familiar with computer programming than with medical practice.

Hear these and more fascinating and not too far fetched points in discussion in Episode 130.

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.

Compulsory vaccination – the next step for Covid-19?

5 November 2020 by

Would you be first in the queue for the Covid-19 vaccine if and when it is rolled out? Or would you prefer to wait and appraise its effects on more pioneering citizens? With nearly a year of widespread media coverage of the coronavirus, it would not be surprising if a large percentage of an already fearful population exercised its right not to be subjected to what would be an assault and battery under English law: medical treatment without consent.

This is a syndrome, and it has a name. It is called “vaccine hesitancy”. The WHO describes this as “the reluctance or refusal to vaccinate despite the availability of vaccines”. Our willingness to avail ourselves of a future COVID vaccine is very much in doubt, and it is in doubt in high places.

Should a Covid-19 vaccine become available at scale, we cannot expect sufficient voluntary uptake.

Update: on Tuesday 17 November the Danish government finished considering a new law giving the government extended powers to respond to epidemics. Parts of this law that propose that:

People infected with dangerous diseases can be forcibly given medical examination, hospitalised, treated and placed in isolation.
The Danish Health Authority would be able to define groups of people who must be vaccinated in order to contain and eliminate a dangerous disease.
People who refuse the above can – in some situations – be coerced through physical detainment, with police allowed to assist. See the Danish newsletter here. In this country, Health Secretary Matt Hancock has refused to rule out mandatory inoculation, telling talkRADIO the government would ‘have to watch what happens and… make judgments accordingly’.

In July 2020 a group of philosophy and law academics presented written evidence to Parliament proposing that individuals should undergo vaccination as a

condition of release from pandemic-related restrictions on liberty, including on movement and association

The authors of the report base this proposal on two “parity arguments”:

a. If Covid-19 ‘lockdown’ measures are compatible with human rights law, then it is
arguable that compulsory vaccination is too (lockdown parity argument);
b. If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (mental health parity argument).

They contend that there is “an arguable case” for the compatibility of compulsory vaccination with human rights law.


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Divisional Court gives guidance on article 2 inquests

5 November 2020 by

R (Peter Skelton and anr) v Senior Coroner for West Sussex [2020] EWHC 2813 (Admin) — Judgment here.

Susan Nicholson and Caroline Devlin were killed by the same man during the course of abusive relationships. They died in 2011 and 2006, but the man was not convicted – of murder and manslaughter respectively – until 2017.  The inquest into Susan’s death in 2011 resulted in a verdict of accidental death. Following the murder conviction, the Coroner applied to the High Court for this to be quashed, with the intention of holding a short inquest at which a fresh conclusion of “unlawful killing” would be recorded. However, the Claimants in this case – Susan’s parents – sought to expand the scope of the inquest to consider what they thought, understandably, were police failings. They were successful; this blog explains why, and examines the wider implications of the ruling.


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New Podcast! Brexit and the Flaws of the Delegated Legislation System

4 November 2020 by

1COR podcast law pod uk logo

In Episode 129, Emma-Louise Fenelon speaks to Joe Tomlinson and Alexandra Sinclair, authors of the new Public Law Project report: Plus ca change? Brexit and the flaws of the delegated legislation system. They are joined by Lord Anderson of Ipswich QC for a fascinating discussion about parliamentary goings-on in a time of Brexit.

The Public Law Project is an independent national charity carrying out research, policy work, training and legal case work to promote the rule of law, improve decision making and facilitate access to justice. The PLP takes no position on the UK’s decision to leave the EU.

Joe is Research Director at the PLP. He is also Senior Lecturer in Public Law at the University of York. He researches widely on public law, and particularly the administrative justice system and his work has been published in leading journals and cited by a variety of bodies, including the Ministry of Justice, the All Party Parliamentary Group on the Rule of Law, and the House of Commons Library. His work, with Professor Robert Thomas, on administrative review will also form the basis of a Law Commission project.

Alexandra is a Research Fellow at the Public Law Project and a PhD student at the London School of Economics Faculty of Law.  She has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession.

David Anderson will be well known to listeners. He is a barrister at Brick Court Chambers and a Cross Bench Peer. Following him on twitter @bricksilk is highly recommended to anyone with an interest in public law.

For those interested in public law more generally, signing up to the Public Law Project mailing list is also worthwhile.

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.

Mental health, clinical negligence and the illegality defence

3 November 2020 by

        

In Ecila Henderson v. Dorset Healthcare University NHS Trust Foundation [2020] UKSC 43 the Supreme Court has revisited the defence of illegality (“ex turpi causa”) in the context of a claim for clinical negligence.

The claimant — a mental health patient — had committed a criminal offence as a result of the defendant health authority’s admitted negligence. Can a claimant, who would not have committed an offence but for the Defendant’s negligence, recover losses arising from their own criminality? Can they seek compensation for the pain, suffering and loss of earnings caused by a custodial sentence? Can they recover general damages for feelings of guilt and remorse? The Supreme Court answered these questions with a resounding “no”.

The Facts

Ms Henderson suffered from paranoid schizophrenia or schizoaffective disorder. Whilst under the care of the Defendant’s community mental health team she stabbed her mother to death. She did so whilst experiencing a serious psychotic episode. She was convicted of manslaughter by reason of diminished responsibility.

In sentencing her, the judge said that: “… there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did”. The judge sentenced Ms Henderson to a hospital order under the Mental Health Act 1983.

Ms Henderson subsequently brought a civil claim against the Defendant Trust. The Trust admitted liability for its negligent failure to return her to hospital when her psychiatric condition deteriorated and accepted that, if it had done this, the tragic killing of Ms Henderson’s mother would not have taken place.

However, the Trust argued that Ms Henderson’s claim was barred for illegality (“ex turpi causa”), because the damages she claimed resulted from: (i) the sentence imposed on her by the criminal court; and/or (ii) her own criminal act of manslaughter.


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Prosecution of trafficking victim not an abuse of process

2 November 2020 by

Image: Wikipedia

R v A [2020] EWCA Crim 1408

On 29/10/2020, the Court of Appeal dismissed an appeal against an aggravated burglary conviction brought by a teenage victim of human trafficking.

The applicant’s personal circumstances, including as a victim of trafficking, were properly reflected by way of mitigation of sentence. But his culpability and criminality were not extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted.


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Use of force by police: what is the standard for determining misconduct?

28 October 2020 by

Jermaine Baker was shot dead in December 2015. Image: The Guardian

The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct [2020] EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.

The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.

In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.


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