The spotlight during the pandemic has been on frontline workers in the medical profession. But if you think of it, the real hazards are to be found in the dentist’s surgery, where most interactions with patients involve an operation in the mouth, whether it be drilling, cleaning or extraction. Most of what a dentist or a dental hygienist does is what has become widely known as an AGP – “aerosol generating procedure”.
In the latest episode of Law Pod UK Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.
Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
The pandemic has propelled an estimated 3 million new claimants onto universal credit, prompting fresh criticisms of the UK’s social security system. On 22 June, the Work and Pension Committee published a report on the response by the Department for Work & Pensions to the outbreak, available in full here. While praising the efforts of DWP frontline staff, Chair Rt Hon Stephen Timms MP said the pandemic “has highlighted weaknesses” in the system. The Committee found shortcomings in relation to:
Legacy benefits. While the government had raised the rates of Universal Credit and Working Tax Credits to reflect the fact that the virus has increased living costs for disabled people, people on benefits yet to be replaced by UC have not been similarly helped. It was “unacceptable” that such people were left facing hardship through no fault of their own.
No Recourse to Public Funds. The report calls for the suspension of this condition. During a pandemic, it argues, it cannot be in the public interest to deny people, including key workers and frontline staff, access to the welfare safety net on the basis of their immigration status.
Universal Credit. The minimum five-week wait for a first payment was singled out for particular criticism. It led to many people taking out a repayable Advance, but the system lacked any flexibility to suspend repayments of these Advances.
In related news, and on the same day, four single mothers secured a victory against the government. The Court of Appeal unanimously ruled that the Secretary of State for Work and Pensions (SSWP) has acted irrationally and unlawfully by making universal credit regulations which fail to take into account that the date monthly salaries are paid can vary because of weekends and bank holidays.
Considerable criticism has been levied against the government for its provision of essential support and services for survivors of domestic violence before and during the pandemic. Among others, Human Rights Watch argue that the crisis has “exposed longstanding flaws” in the system exacerbated by an “erosion of support for specialist domestic abuse services”.
On 25 June, following a review by legal, charitable and academic experts assessing the risk of harm to children and parents in private law children’s cases, the MoJ has published a report, available in full here. The Domestic Abuse Commissioner Nicole Jacobs noted with approval that the report’s publication comes “in time to implement its recommendations through the Domestic Abuse Bill”, which entered its its report stage in the Commons last Thursday. The report’s key recommendations included:
Physical barriers. Victims will be provided with separate court entrances and waiting rooms, as well as protective screens to shield them from their alleged abuser in court.
Preventing abusers from dragging victims back to court. Judges will make it easier for judges to issue barring orders to protect victims from harassment and re-traumatising.
Reviewing “parental involvement”. The report states that “[a] review of the presumption of parental involvement in s.1(2A) of the Children Act 1989 is needed urgently in order to address its detrimental effects.” In cases of domestic abuse, it could prioritise the abusive power’s right to family life, above the child’s welfare and the abused parent’s right to safety.
Trialling a “problem solving approach”. On the basis that an adversarial approach in the family courts often worsened conflict between parents and retraumatised victims and their children, a new investigative approach will be trialled. Judges will explore evidence and try to get to the root of issues, rather than parents presenting their cases against each other with limited intervention.
In Other News
Liberty and Ed Bridges, a Cardiff resident, have brought a legal challenge against the use of automated facial recognition technology by South Wales police in the Court of Appeal. It was argued that the technology’s use radically alters the way in which Britain is policed, is racially discriminatory, breaches privacy rights and is contrary to data protection laws.
A review into the use of pain-inducing techniques against children in custody has concluded that they should be an “absolute exception” to save life or prevent serious harm, but stopped short of calling for an outright ban.
Leilani Farha, the UN’s special rapporteur on adequate housing, has warned the UK government that its failure to replace dangerous cladding on buildings in the wake of the Grenfell Tower fire could be a breach of international law.
In the Courts
LC (A Child – Placement Order)  EWCA Civ 787: the Court of Appeal dismissed an appeal by a local authority against a decision to refuse the authority’s placement order in respect of a child. The two-year-old child, who had an Indian father and a Hungarian Roma mother, was of unusual heritage, which she shared with her two brothers, aged eight and seven. The authority had argued that the best option for the child was to be adopted, while her older siblings were placed in long-term foster care. The recorder had ruled that the stability this arrangement would offer did not outweigh the importance of the child maintaining a bond with her birth family, including her siblings, and her cultural heritage. The court was satisfied the recorder had “carried out a fair and balanced analysis.” The case comes shortly after the Supreme Court’s consideration of the role of siblings in the procedures by which children’s hearings in Scotland make compulsory supervision orders.
Inkster v R  EWCA Crim 796: the Court of Appeal quashed the appellant father’s conviction for breach of a non-molestation order preventing him from directly contacting the complainant mother. The mother’s repeated failure to respond to contact from designated third party intermediaries in relation to child arrangements amount to a “reasonable excuse” for making contact. The judge’s interventions had placed pressure on the unrepresented appellant to plead guilty by leading him to wrongly believe that he had no defence on the basis of a reasonable excuse.
Bater-James & Anor v R.  EWCA Crim 790: the Court of Appeal dismissed two otherwise unrelated appeals against conviction which were listed together to provide the court an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. The cases focussed on claimants alleging sexual assault, but the four principles laid out would be “equally relevant – depending always on the facts – to other prosecution witnesses.”
First, a “reasonable line of inquiry” was necessary for investigators to seek to review a witness’s digital material, which would depend on the facts.
Second, investigators should adopt an incremental approach to reviewing a witness’s electronic communications.
Third, a complainant should be reassured that (i) the prosecution will keep them informed as to any decision made as to disclosure, (ii) that any device would only be inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations, and (iii) that material will be provided to the defence only if it meets the strict test for disclosure, in a redacted form.
Fourth, if a complainant refuses to permit access to a device or deletes relevant material, the court will need to consider the reasons for this action carefully.
Gerulskis & Anor v The Prosecutor General’s Office of the Republic of Lithuania  EWHC 1645: the High Court heard granted two appeals and dismissed the rolled up hearings against orders for extradition to Lithuania. The court found that there did not exist a real risk of impermissible treatment contrary to article 3 of the ECHR. The “danger caused by the spread of COVID-19” was raised, but dismissed since there was no evidence of the virus in prisons in Lithuania. There had been no breach of article 8, since the interference with the appellants’ rights and the rights of their children had been correctly balanced against the public interest in complying with extradition obligations. The extraditions had therefore been proportionate.
On the UKHRB
Anna Dannreuther considersRe X  EWFC 39, which concerned the statutory criteria for granting parental orders over children born as the result of surrogacy arrangement in circumstances involving the death of an intending parent.
Henry Tufnell clarifies the confusion surrounding cross-border travel between England and Wales under the Coronavirus Regulations.
Ben Christman discusses the functions and powers of Scotland’s new environmental watchdog, Environmental Standard Scotland, in the UK Withdrawal from the EU (Continuity) (Scotland) Bill.
Clodagh Bradley QC outlinesGMC v Awan EWHC 1553, which concerned GP’s sexually motivated online chat with someone posing as a 13-year-old child.
Rosalind English surveys a report considering the GDPR requirements for machine learning in healthcare and medical research.
We don’t dispense legal advice from the UKHRB, but I thought this was a very interesting question and the editorial board felt it best to try to answer it in a separate post, so here it is, and many thanks to Henry Tufnell, one of our pupil barristers, soon to become one of our new tenants, for taking up the challenge.
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. *
“One need only to think about the irrationality in being allowed to buy a jersey but not undergarments or open- toed shoes “
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”.
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.
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.
The Human Rights Committee, reviewing NHSX’s current digital contact tracing app architecture, has recommended that the government’s current privacy assurances are not sufficient to protect data privacy and that legislation must be passed to ensure that. This echoes Professor Lilian Edwards’ call for primary legislation to ensure privacy rights are protected. These recommendations are given special significance NHSX’s choice to adopt the controversial and arguably less secure “centralised” model (an explanation of the different contact tracing models and Prof Edwards’ suggested legislation can be found here).
Latest news: GCHQ has published a detailed blog article which seeks to explain (and defend) the new NHS contact tracing app, which the Government regards as the key to a controlled exit from lockdown.
Coronavirus presents a serious threat to society, legitimising the collection of public health data under Article 9:2 (g) of GDPR regulations, which allows the processing of such data if “necessary for reasons of substantial public interest”. Some of this collection will take the form of contact tracing apps, which have been used in containing the spread of coronavirus in countries such as Singapore.
They work by broadcasting a bluetooth signal from a smartphone which is picked up by other smartphones (and vice versa), meaning that if one user contracts coronavirus, those who have been in contact with that user can be effectively warned and given further advice to stop the spread.
NHSX, the body responsible for setting NHS data usage policy and best practice, has been developing a contact tracing app which is currently undergoing effectiveness trials at RAF Leeming. As it stands, the app either tells you “You’re okay now” or “You need to isolate yourself and stay at home”. It seems likely that this or a similar app will be rolled out over the UK in the coming months.
As this could otherwise get confusing, I’m going to call the Regulations that are currently in force, i.e. the Original Regulations as amended by the Amending Regulations, the Current Regulations.
The Amending Regulations enact a number of changes to the lockdown law, some more consequential than others. This post does not go through the more insignificant changes in any great detail; for example, Amending Reg (4)(b)(iv) correcting the name of DWP in Original Reg 6(i)(iii) from “Department of Work and Pensions” to “Department for Work and Pensions”.
What this post does instead is outline four of the changes provided for by the Amending Regulations in ascending order of importance.
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.
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.
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.
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