coronavirus


German judge investigated by police after ruling compulsory mask-wearing in schools unconstitutional

28 April 2021 by

On 8 April 2021, the Weimar District Family Court ruled in Amtsgericht Weimar, Beschluss vom 08.04.2021, Az.: 9 F 148/21) that two Weimar schools were prohibited with immediate effect from requiring pupils to wear mouth-nose coverings of any kind (especially qualified masks such as FFP2 masks), to comply with AHA minimum distances and/or to take part in SARS-CoV-2 rapid tests. At the same time, the court ruled that classroom instruction must be maintained.

This is the first time that expert evidence has now been presented before a German court regarding the scientific reasonableness and necessity of the prescribed anti-Corona measures.The expert witnesses were the hygienist Prof. Dr. med Ines Kappstein, the psychologist Prof. Dr. Christof Kuhbandner and the biologist Prof. Dr. Ulrike Kämmerer were heard. 2020NewsDe has published a summary of the judgment, the salient parts of which are set out in full below (translation by DeepL).

The reason for highlighting this judgment in such detail is because of the consequences reported by the news website to the judge of his decision. According to 2020NewsDe, “the judge at the Weimar District Court, Christiaan Dettmar, had his house searched today [26 April 2021]. His office, private premises and car were searched. The judge’s mobile phone was confiscated by the police. The judge had made a sensational decision on 8 April 2021, which was very inconvenient for the government’s policy on the measures.” In a side note on the fringes of proceedings with other parties, continues 2020NewsDe, “the decision in question has been described as unlawful by the Weimar Administrative Court without comprehensible justification.”

A cautionary note:  I have been informed by Holger Hestermeyer, Professor of International and EU Law at King’s Law School (@hhesterm), that cases quashing administrative acts (like the one at issue in the AG Weimar case) go to administrative courts in Germany. The case, says Professor Hestermeyer

had, indeed, been brought to the administrative court, but the court had not quashed the administrative act. The attorney then (according to Spiegel reports) was looking for plaintiffs to bring the case before this particular judge via telegram (competence is based on first letters of surnames, so the attorney was looking for plaintiffs with the right surname). The judge then assumed his competence (unprecedented), ruled not just for the plaintiffs but all kids at the school (peculiar), excluded an oral hearing (hmmm), rejected all mainstream scientific advise to base the judgment exclusively on the minority of experts rejecting all such measures (again hmmm) and excluded an appeal. 

So there are important procedural problems with this judgment which must be borne in mind when reading my summary with excepts both from the original judgment and the report by 2020De below.

The court case was a child protection case under to § 1666 paragraph 1 and 4 of the German Civil Code (BGB), which a mother had initiated for her two sons, aged 14 and 8 respectively, at the local Family Court. She had argued that her children were being physically, psychologically and pedagogically damaged without any benefit for the children or third parties. At the same time, she claimed this constituted a violation of a range of rights of the children and their parents under the law, the German constitution (Grundgesetz or Basic Law) and international conventions.


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Vaccine hesitancy and the Court of Protection: who decides?

27 April 2021 by

Informed consent to medical treatment is at the heart of the vaccine debate. Consent is also at the centre of most of the cases that come before the Court of Protection. So now we have a very specific problem: what happens, if someone lacks capacity under the Mental Capacity Act, and their family for whatever reason objects to the Covid vaccine?

In the latest episode of Law Pod UK, Rosalind English talks to Amelia Walker of 1 Crown Office Row about three recent cases that came before the COP where the “protected person” (incapacitous under the Mental Capacity Act) was due to be vaccinated, but family members objected. Here are the citations to the cases discussed and the relevant statutes:

E (by her Accredited Legal Representative, Keith Clarke), Applicant v London Borough of Hammersmith and Fulham (Respondent) and W (2nd Respondent) [2021] EWCOP 7

SD (Applicant) v Royal Borough of Kensington and Chelsea (Respondent) [2021] EWCOP 14

NHS Tameside & Glossop CCG v CR (by his litigation friend CW) [2021] EWCOP 19

Mental Health Act

Mental Capacity Act 2005

For more posts about the Covid vaccine, see here.

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Mandatory vaccinations for care home workers – a slippery slope?

16 April 2021 by

Or, as Andrew Neil put it on the Spectator TV News Channel this week, “A Dripping Roast For Lawyers”. To be fair, Neil was referring to the patchwork of mandatory vaccines across the United States. But with the publication yesterday of the Government’s consultation paper on vaccine requirements for all staff deployed in a care home supporting at least one older adult over the age of 65, the debate raging about “vaccine passports” has a real target in its sights. Not only because the government has found some primary legislation that gives it the power to introduce mandatory vaccinations, but also because the proposals are not limited to employees.

According to the consultation paper (which will take five weeks to circulate, enough for more age groups to move into vaccine eligibility bands), the vaccine requirement will extend to visiting professionals, in particular

all staff employed directly by the care home provider, those employed by an agency, and volunteers deployed in the care home. It also includes those providing direct care and those undertaking ancillary roles such as cleaners and kitchen staff.

…[and could extend to] those who provide close personal care, such as health and care workers. It could also include hairdressers or visiting faith leaders. We are also carefully considering the situation of ‘essential care givers’ – those friends or family who have agreed with the care home that they will visit regularly and provide personal care

The policy proposals provide clear exemptions, but only on medical grounds. Vaccine refusal based on cultural or religious objections is not exempt. Pregnancy is at the moment included in the medical exemption but is under review.


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Covid, Consent and the Court of Protection

19 March 2021 by

 Many of the newly vaccinated booked their appointments with gusto and left with a sense of elation. For others the process wasn’t so simple. We see a snapshot of this in a handful of reported cases from the Court of Protection: 

Re E [2021] EWCOP 7; SD v RBKC [2021] EWCOP 14; and Re CR [2021] EWCOP 19

In these cases, examined below, the relatives of three care home residents lacking medical capacity, objected to their receiving the vaccine against Covid-19. The CoP applied the requirements of the Mental Capacity Act 2005 and ruled, in each case, that the resident patient’s best interests favoured vaccination. 

Mrs E was 80, suffered from dementia and schizophrenia. Her GP approached the subject of the vaccine, but found her unable to understand the nature of the virus, the risks it posed, or the factors weighing for and against vaccination. He considered she lacked capacity but that vaccination was in her best interests. Her accredited legal representative agreed, but her son did not, so the Court was called on to rule. 


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Vaccination and public/private coercion

10 February 2021 by

In an earlier post I discussed the problem of “vaccine hesitancy” and  written evidence to Parliament to Parliament outlining ways in which a vaccination against Covid-19 without consent could be put on a par with capacity under the Mental Capacity Act 2005 and with Section 3 of the Mental Health Act 1983.

Since the announcement of successful clinical trials for the vaccination was made in mid-December, the prospect of population-wide vaccinations has become a reality, and, whilst there are still supply problems, there is no doubt that the issue of medical intervention without consent being made mandatory either through private channels has begun to exercise legal minds across the country. Saga cruise line and the airline Qantas for example have indicated their intention to refuse non vaccinated passengers. Such private prohibitions may have almost as broad an effect as the restrictions on civil liberties passed under the Coronavirus Act since lockdown was declared on March 23 2020 (more specifically, the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020).

I write this solely to draw attention to the cogent summary of these questions published by Boyes Turner LLP on the 5th February via Lexology: A Shot in the Arm – Can Leisure and Hospitality require a vaccine to access their Services? They ask, whatever the government does, are there legal risks in private vaccination enforcement measures? Their points are, in short:


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When can we go away?

9 February 2021 by

Snowed in while locked down? What would be more cheering reading than news from one of the no-frills airlines that there will soon be a fast track for vaccinated passengers to leave these shores for balmy Mediterranean beaches, or as the ad puts it “sunshine destinations”. Ryanair recently put out the slogan

Jab and Go

This advertising campaign, encouraging consumers to book flights following the roll out of the UK vaccination programme, might have been a perfectly understandable response to the year-long shock of having very few passengers to transport and the equally deranging inability of citizens to travel abroad.

But it turns out that Ryanair were somewhat ahead of themselves, as the Advertising Standards Authority has found that it was misleading for the airline to give the impression that most people who are hoping to take to the air over the Easter or summer holidays this year will have had the Covid-19 vaccination in time to do so.


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Enforced wearing of masks declared unconstitutional

25 January 2021 by

Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.

The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.


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German District Court declares Corona Ordinance Unconstitutional

25 January 2021 by

In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)

Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)

In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.

This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentary quoted below).


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The Weekly Round-Up: Lockdown Again (Again)

5 January 2021 by

In the News:

So: here we are again.

Rampant spread, fuelled by a combination of a new variant that is around 50-70% more transmissible, plus a lifting of restrictions at the beginning of December, brings us into another national lockdown.

In many ways, Prime Minister Boris Johnson’s first address of 2021 felt unpleasantly like a return to early 2020.

The original “Stay Home” messaging made a comeback. The Prime Minister was deliberately vague about how long lockdown would last. Big Brother Watch criticised the  government for “yet again … evading the democratic process” by denying MPs a meaningful vote on the new national restrictions prior to their televised announcement to the nation, or their coming into force. The new guidance differs from the Tier 4 guidance in emphasis, if not substance.

Ever the optimist, the Prime Minister was keen to emphasise “one huge difference” between this lockdown and the first one: the UK is “rolling out the biggest vaccination programme in its history”. He also managed to get in a jab at the UK having delivered more vaccines than the rest of Europe combined.

There were other, more subtle differences, as No. 10 tweaked its messaging in light of past mistakes.


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Challenge upheld to Covid-19 changes to care regime for children

7 December 2020 by

R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577

The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.

On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.


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Dolan’s latest lockdown defeat

3 December 2020 by

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.


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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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The Weekly Round-Up: Three Tiers

19 October 2020 by

Andy Burnham, Mayor of Greater Manchester

In the News:

On 12 October 2020, the Prime Minister made a statement in Parliament and addressed the nation to announce a new three tier lockdown system would be introduced across the country. The Secretary of State for Health introduced three statutory instruments before Parliament which came into force two days later.

In oversimplified terms, the restrictions in place in each tier are as follows:


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The Weekly Round-Up: Happy (Legal) New Year!

5 October 2020 by

Temple Church

In the News:

On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year.  He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.

The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.


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