COVID-19 has changed many things about society, and one of the most significant is the erosion of the taboo surrounding death. After all, we have daily bulletins on death figures. As Dignity in Dying Sarah Wootton says, in her forthcoming book “Last Rights”,
The coronavirus pandemic has thrust death and dying into the mainstream.
This sensitive and compassionate judgment by Hayden J following a remote hearing of the Court of Protection is therefore worth our attention, as we all become more aware of how acutely things slip out of our control, not least of all our health.
The application from the Trust concerned a 34-year-old man (MSP) who has had significant gastrointestinal problems for approximately 10 years, requiring repeated invasive surgery. At the time of the hearing he was unconscious and on life support in ICU. The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.
Between 2013 and 2020 MST underwent significant abdominal surgery and had a stoma inserted in 2018. The court noted that he “utterly loathed” life with a stoma. He did express his consent to the stoma being inserted at the time, but this consent seemed entirely contrary to his unambiguous rejection of this procedure, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point.
Significantly, on 4th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told. In this Advance Directive he stipulated, among other things, that he would refuse the “formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% or under”.
As many others in the legal community have said, we at the UK Human Rights Blog are deeply saddened and appalled by the killing of George Floyd and the events in Minneapolis and elsewhere that exemplify systemic racism and violence against black people.
We endorse the statements made by the Bar Council and by 1 Crown Office Row which may be found here.
We will explore these issues in more depth in upcoming podcasts and articles.
When a provision of legislation is held to be incompatible with a Convention right, a Minister of the Crown ‘may by order make such amendments to the primary legislation as he considers necessary’. This power to take remedial action, contained within section 10 of the Human Rights Act (HRA), applies when a domestic court finds an incompatibility with the European Convention on Human Rights (ECHR), and also when the Minister considers a provision of legislation incompatible with the Convention ‘having regard to a finding of the European Court of Human Rights’ (ECtHR). A recent draft remedial order laid before Parliament aims to remedy an incompatibility of the latter kind, following the ECtHR’s judgment in Hammerton v United Kingdomno. 6287/10 ECHR 2016. The draft remedial order is of particular interest because it purports to amend the Human Rights Act itself.
Professor Richard Ekins, writing for Policy Exchange, has criticised the draft remedial order as ultra vires and ‘of doubtful constitutional propriety’ and argues that the power in section 10 does not authorise ministers to amend the HRA itself. Further, he contends that the Hammerton judgment of the Strasbourg Court – which gives rise to the draft remedial order – is open to question. This blog post seeks to demonstrate that, whatever the merits of the wider argument about the constitutional propriety of amending the HRA through the power in section 10, the Hammerton judgment itself is based on well established ECHR case law. It is suggested that, in so far as it rests on a characterisation of the Hammerton judgment as unreasoned or lacking a reasonable basis, any view that the draft remedial order is of questionable validity is mistaken
The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.
This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office  EWCA Civ 723 could be profound for our electoral law.
On 26 May, judicial review proceedings were launched in the High Court which not only challenged the lawfulness of the Lockdown Regulations as having been made “ultra vires” under the 1984 Public Health Act, but also claimed that they are disproportionate to the threat posed by Covid-19. Philip Havers QC of 1 Crown Office Row is acting for the claimant: see my post on the launch proceedings here.
This latest communication from the claimant has challenged the legality of the latest lockdown regulations, the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, enforceable from Monday 8 June. (NB whilst there might be changes afoot in respect of people travelling from and within the EU, the current position remains as set out in the regulations which took force this week). The claimant observes that from many weeks of data collected since it first affected the UK, that Covid-19 overwhelmingly affects primarily the elderly and those with pre-existing health conditions, not the “vast majority of the working population.”
Young people and children are scarcely affected at all. Indeed, as of the latest available figures published by NHS England, we note that out of a population of 56 million people in England alone, since the outbreak started, Covid-19 has been cited on the death certificates of just 279 people who died in hospital in England under the age of 60 with no pre-existing health condition. *
Since lockdown the courts (and legal representatives) have been striving to hold remote hearings where possible. This had led to a flurry of new guidance (see for example CPR section AA Guidance for Queen’s Bench Division Court Users) — and the ability to view bookshelves in the studies of judges and legal representatives.
This interesting case considers the fairness of proceeding with a clinical negligence claim remotely. In SC, an application was made to adjourn a clinical negligence trial on the basis that it would be impossible for a hearing to take place in court and a remote hearing would be unfair. Mr Justice Johnson dismissed the application, concluding that the hearing could proceed in court and, if a remote hearing was required, then it could proceed in a manner that would be fair.
In the latest episode of Law Pod UK, Rosalind English discusses the Agriculture Bill with Peter Stevenson, senior policy advisor to the campaign organisation Compassion in World Farming. We have chosen the rearing of food animals as our focus for this interview because of the circumstances in which the current pandemic is said to have arisen; the zoonotic event of an animal virus passing to humans in the pathogen-rich wet markets of China. Intensively farmed “wildlife” may sound an alien concept, if not something of an oxymoron, but the dangers of industrial farming of animals are becoming increasingly apparent in the West.
The main concern is that there are no provisions in the framework bill to protect UK food producers from being undercut by imported food from countries where standards of animal welfare and hygiene do not apply.
See Rafe Jenning’s post on the salient features of the Agriculture Bill 2020 for more details about its provisions for “public money for public goods”, Environmental Land Management Schemes that promote these goods such as improvements to soil health, pollinator density and biodiversity, all activities that the market does not sufficiently incentivise.
Protesters in Los Angeles on Saturday. Credit: The Guardian.
The usual purpose of these round ups is to try and avoid repeating the headline news of the previous week whilst instead summarising the key legal developments. There are some weeks, however, in which events tend to put the judgments of the Court of Appeal into the shade.
The death of George Floyd on May 25th not only placed concerns about policing attitudes and deaths in custody onto the front pages, but also shone a light on to wider systemic racism. Protests in response were ongoing as of Sunday, both in the USA and around the world. The use of force by police in the aftermath of demonstrations has been widely reported upon, particularly in the United States, where the extent of force deployed against the British media led to a formal raising of the matter by the British embassy in Washington. Continue reading →
A High Court judge in South Africa has just taken a stand on the ANC government’s reaction to the pandemic. He has ruled that some of the lockdown regulations do not satisfy the rationality test under public law, and that their encroachment and limitation on the freedoms set out in the South African Bill of Rights are not justified in a society based on “human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”
He drew “clear inference” from the evidence, that once the government had declared a national state of disaster, the goal was to flatten the curve by way of retarding or limiting the spread of the virus (“all very commendable and necessary objectives”). However, “little or in fact no regard” was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.
His criticism was not that the government should have done nothing in the face of the epidemic, but that they took a cartwheel to crush a butterfly.
The starting point was not “how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of south Africa, may exercise”.
This is, to say the least, a rather unfortunate saga. The Claimant, Mr Serafin, brought a defamation claim against a Polish newspaper run by the Defendants. An article had alleged various things including that he was financially untrustworthy and was dishonest in his dealings with women. At trial before Jay J, he represented himself. He was comprehensively disbelieved by the judge. His claim was dismissed, in most cases because the judge found that the article was accurate, but in some instances because the defendants had a public interest defence under s. 4 Defamation Act 2013.
The Supreme Court, via a single judgment from Lord Wilson, thought that the judge’s judgment was “remarkable”, “intricately constructed and beautifully written”. So what, if anything, had gone wrong, and why did the SC order a retrial?
R (W, a child) v Secretary of State for the Home Department, Project 17 intervening  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:
There have been significant protests in the USA following the death of George Floyd. Mr Floyd, a black man, died after his neck was knelt on whilst he was being detained. Mr Floyd repeatedly said he couldn’t breathe, but despite this the position was maintained for several minutes.
Derek Chauvin, the white officer who detained him, has been arrested and charged with murder. Three other officers have been sacked. The County Prosecutor has suggested it is likely they will also be charged in due course.
The case has triggered widespread protests about the treatment of black people by the police. Previous incidents, such as the fatal shooting of Michael Brown, exacerbate concerns. Thousands also protested in London, where the march moved from Trafalgar Square to the US embassy (located in South London).
In the US the largely peaceful protests have been marred by looting and arson attacks. The police station in Minneapolis was set on fire. A number of US cities have imposed curfews which have been defied. Police have used tear gas and rubber bullets to try and control crowds.
A black CNN journalist and his camera crew were arrested by police whilst reporting in a protest in Minnesota. The group was later released and the governor apologised for the arrest.
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.
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.