The New Corporate Insolvency and Governance Act 2020 – An Extraordinary Act for Extraordinary Times? A Quick Look at the Act’s Time-Restricted Measures

Image by Elliot Alderson

Dr. Eugenio Vaccari, Lecturer in Law, University of Essex

I. The Corporate Insolvency and Governance Act 2020

On 25 June 2020, the Corporate Insolvency and Governance Act 2020 (‘the Act’) completed its progress in the Parliament and received Royal Assent. The Act has unanimously been hailed by the insolvency community as the most significant regulatory reform in the United Kingdom in the past 20 years.

The Act represents the culmination of a debate on regulatory reforms commenced in 2016 and continued in 2018. This debate was made more urgent by the need not to fall behind the European Union and by the inadequacies of the system evidenced by recent corporate scandals (Carillion) and systemic failures (airline industry).

While some of the measures are the result of long-planned reforms the Government has previously consulted upon, some changes are temporary in nature and they are designed to provide companies with the breathing space and flexibility needed to deal with the economic impact of the Covid-19 pandemic.

This blog-post briefly discusses the relevance and impact of the time-limited measures introduced by the Act. The Act’s long-term regulatory reforms were discussed in a separate post here.

II. Time-Limited Measures

The most significant changes affecting insolvency rules are: (i) a suspension of statutory demands and restrictions on winding-up petitions;[1] (ii) a suspension of liability for wrongful trading;[2] and (iii) an extension to end of June 2021 to the power to legislate on sales to connected persons, which was granted by the Small Business, Enterprise and Employment Act 2015 (‘SBEEA 2015’) but expired in May 2020.[3]

The Act also allows for temporary flexibility regarding other administrative burdens, such as the holding of annual general meetings (AGMs) and filing requirements. These temporary measures, however, fall outside the remit of this blog-post as they do not deal with insolvency provisions.

With reference to statutory demands and winding-up petitions, the Coronavirus Act 2020 introduced a moratorium on commercial landlords to enforce the forfeiture of commercial leases for unpaid rent. This measure was designed to protect companies unable to trade during the lock-down period introduced by the Government to limit the spread of Covid-19.

However, landlords sidestepped this original ban by serving statutory demands on businesses followed by winding-up petitions. The Corporate Insolvency and Governance Act 2020 addresses this loophole by introducing temporary provisions to void statutory demands made between 1 March and 30 September 2020.

Statutory demands can still be served as this may trigger a termination clause under an existing contract. However:

  1. service of a statutory demand without the treat of a winding-up petition is of limited benefit;
  2. defaults in debtor’s facility documents or commercial contracts are usually equally triggered by ordinary as opposed to statutory demands;
  3. even if these clauses are triggered, the creditor might still not be able to enforce the termination as such option might be prevented by the newly enforced ban on ipso facto clauses discussed here.

The Act also restricts winding-up petitions based on statutory demands from 27 April to 30 September 2020. For the same period, it also prevents creditors from presenting a winding-up petition unless they have reasonable grounds to believe that: (a) the Covid-19 pandemic has not had a “financial effect” on the debtor company; or (b) the facts by reference to which the relevant ground applies would have arisen even if the Covid-19 pandemic had not had a financial effect on the company.

These temporary measures are intended to prevent aggressive creditor actions against otherwise viable companies that are struggling because of the consequences of the Covid-19 pandemic.

As mentioned before, creditors can still commence a winding-up petition if they prove that the Covid-19 pandemic had no “financial effect” on the debtor. This bar is very low, as in virtually all sectors of the economy the Covid-19 pandemic produced financial effects on the debtors. This is particularly true for the worst affected sectors, such as the airline industry, non-essential retail, hospitality and leisure sectors (where revenue has been nil or restricted as a result of the lockdown and social distancing measures). Still, creditors may be able to submit a winding-up petition based on aged and undisputed debts that pre-date the Covid-19 pandemic.

As for the suspension of liability for wrongful trading, the Act suspends the liability arising from wrongful trading (sections 214 and 246ZB of the Insolvency Act 1986) in the period 1 March to 30 September 2020.

Under wrongful trading provisions, directors face personal liability on debts incurred by their company. This is, if they decided to continue trading while they knew or ought to have known that the company was unlikely to avoid entering insolvent liquidation or administration. For directors who may have previously rushed to liquidate their businesses with these provisions in mind, this suspension should help delay that process.

III. Preliminary Assessment

There is no doubt that the Act complements the Coronavirus Act 2020 with a series of more measures designed to provide companies with the much-needed temporary relief to cope with the impact of the Covid-19 pandemic.

However, all that glitters is not gold.

With reference to the use of statutory demands and winding-up petitions, the Business Secretary originally advocated for the introduction of these measures to safeguard the UK high street against aggressive debt recovery actions during the Covid-19 pandemic (Alok Sharma, 23 April 2020). However, the temporary provisions as enacted are not sector specific. They apply to any registered or unregistered company that can be the subject of a winding-up petition. They also apply in relation to any debt owed by a debtor company, not just rent or other commercial lease liabilities. As a result, there is the risk that this temporary protection is used in a strategic manner by otherwise non-distressed firms as a leverage in negotiations with their creditors, in order to reduce outstanding and future liabilities arising from ongoing executory contracts.

Additionally, while the Act does not introduce a blanket ban on presenting winding-up petitions, the Government, some professionals and non-specialist publications are suggesting the contrary, thus causing potential confusion in the business community.

The Act also provides that if a winding-up order has been made in relation to a debtor in the period between 27 April 2020 and the day before the Act came into force, the order is void if it does not meet the new requirements for the making of an order. The retrospective nature of this provision can lead to significant challenges in practice. For instance, if the procedure has already commenced, it is not clear what happens to the debts incurred during the procedure, as they normally enjoy a super-priority status. However, it is expected that few orders were made on this basis in the past few weeks, as the judiciary was aware of the content of the Bill and enforced a ban on winding-up petitions before the Act was passed.[4]

Dr. Vaccari has already evidenced in a paper published by the University of Essex[5] and at the St Petersburg’s International Legal Forum the limits of the other, most significant temporary measures introduced by the Act, i.e. the suspension of liability for wrongful trading.

The comments made in the House of Lords debates indicate that the Government was aware of some of the limits evidenced in the above-mentioned papers. The Government stressed in these debates that its intention is that there should be no liability for wrongful trading until 30 September 2020. However, under the Act courts are only instructed “to assume that the [director] is not responsible for any worsening of the financial position of the company or its creditors that occurs during the relevant period”.[6] Therefore, applicants may still seem to have the power to demonstrate that the directors acted in breach of the wrongful trading provisions as outlined in sections 214 and 246ZB of the Insolvency Act 1986 for actions taken before the end of September of this year.

The Act does not affect the several other provisions. These include the rules on fraudulent trading[7] and transactions defrauding creditors,[8] on undervalue or preferential transactions,[9] as well as the director disqualification regime[10] and the general directors’ duties.[11] All these rules, therefore, continue to apply. Particularly, the common law duty of directors to give consideration to the interests of creditors when a company is in the zone of insolvency[12] is preserved and remains in full force.

Sections 12(3) and (4) of the Act clarify that the suspension of liability for wrongful trading does not apply to a variety of companies. These include (among others) insurance companies, banks (including investment banks and firms), building societies, friendly societies, credit unions, public-private partnership project companies and overseas companies with corresponding functions. In other words, a good deal of medium and large enterprises are excluded from the scope of this provision without any apparent justification.

Additionally, unlike the provisions on statutory demands and winding-up petitions, the rules on wrongful trading state that there is no requirement to show that the company’s worsening financial position was due to the Covid-19 pandemic. 

The Act adopts a blanket approach: liability for losses incurred in the relevant period is waived, irrespective of whether the losses are incurred because of the Covid-19 pandemic. This blanket approach raises issues of potential abuse of the law if the office holders cannot hold the directors accountable for losses that are not caused by the Covid-19 pandemic.

As a result of all these considerations (and the others mentioned in the publication cited above), a measure in theory designed to “remove the threat of personal liability” caused by the Covid-19 pandemic on businesses (Alok Sharma, 28 March 2020) is likely to lift significant restrictions on the arbitrary exercise of powers by rogue directors. This is likely to significantly and negatively affect creditors’ rights and the rule of law. It is highly unlikely that the suspension of liability for wrongful trading results in being a “jail-free card” (although it is salient to note that we are discussing civil, as opposed to criminal, liability issues).

A final contentious aspect is represented by the power granted to the Secretary of State to temporarily (for up to six months) amend corporate insolvency primary and secondary legislation and related measures to deal with the consequences of the Covid-19 pandemic on companies. This power is virtually unrestricted as no effective check-and-balance system is put into place.

IV. Concluding Remarks

The Act provides much-needed temporary relief for distressed companies.  However, given the speed with which the Act has been passed, the complexity of the legislation, and some questionable legislative choices, there are undoubtedly areas of ambiguity and potential challenge.

The extent to the Act will help companies navigate through the Covid-19 pandemic is far from clear. More importantly, the legislation, whilst very welcome for debtors, does not deal with the substantive problem of debt being built up and long-term balance sheet issues.

In fact, the Act provides no solution for debtors once the restrictions expire. At that point (end of September 2020), the debtors may have significant arrears of debt. These issues are particularly acute in those sectors of the economy that have been worst affected by the Covid-19 pandemic. As a result, these time-restricted measures may have the unintended effect of postponing the unavoidable, reducing returns to creditors and resulting in a spike of liquidation-oriented procedures in the last quarter of this year.

The publications mentioned in this article are available here, on Westlaw, Researchgate.net and Academia.edu. Dr. Vaccari regularly discusses insolvency matters on Twitter and LinkedIn.


[1] Sections 10-11 of the Act.

[2] Sections 12-13 of the Act.

[3] Section 8 of the Act.

[4] Re A Company (Injunction to Restrain Presentation of Petition) [2020] EWHC 1406 (Ch), [2020] 6 WLUK 13 – restraining the presentation of a winding-up petition against a company which had been unable to pay its rent as a result of the Covid-19 pandemic by taking into account the likelihood of the change in the law represented by the relevant provisions of the Corporate Insolvency and Governance Bill 2020.

[5] The paper makes reference to the Bill, but the wording of the relevant provisions has not changed in the Act.

[6] Section 12(1) of the Act.

[7] Section 213 of the Insolvency Act 1986.

[8] Section 423 of the Insolvency Act 1986.

[9] Sections 238 and 239 of the Insolvency Act 1986.

[10] As outlined in the Company Directors Disqualification Act 1986.

[11] Chapter 2, Companies Act 2006. These include the duties to act within their powers, to exercise independent judgement, to avoid conflicts of interest and to exercise reasonable care, skill and diligence.

[12] Section 172(3) of the Companies Act 2006.

LONDON LIVE sanctioned by Ofcom for broadcasting ‘potentially harmful’ interview on COVID-19

Image by Pexels

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 20 April 2020, the UK communications regulator Ofcom ruled that ESTV Ltd had breached its Broadcasting Code by airing an interview on the Coronavirus pandemic which risked causing “significant harm to viewers.”

ESTV Ltd, the licensee, is the owner of the local TV channel London Live, which serves the London area. On 8 April 2020, London Live broadcast an 80-minute interview with the former footballer and sports broadcaster David Icke, who was introduced by the presenter Brian Rose at the start of the programme as “a writer and public speaker known since the 1990s as a professional conspiracy theorist.” At the time of the broadcast, it was estimated that approximately 1.4 million people had been infected globally and the UK Government had introduced its lockdown policy to curb the spread of the virus.

Given the global Coronavirus crisis, the regulator expressed particular concern over the broadcast of Icke’s opinions which “cast doubt on the motives behind the official health advice aimed at reducing the spread of the virus.” The interviewee repeatedly suggested in the programme that the measures taken by the UK Government, other national governments and international health bodies such as the WHO were being implemented to further the malevolent ambitions of a “clandestine cult,” rather than to protect public health. While not expressly mentioning 5G technology, Icke referred, among other things, to an “electromagnetic, technologically generated soup of radiation toxicity” which, he claimed, had compromised the immune system of elderly people. Icke also expressed doubts over the use of vaccines (which are widely accepted by scientific communities as important mechanisms in controlling infectious disease outbreaks and part of a long-term solution to COVID-19), describing them as a “tidal wave of toxic shite” and any decision to make them mandatory as a form of “fascism.”

ESTV Ltd acknowledged that the programme included “controversial” and “unorthodox” material that challenged mainstream thinking, but considered it to be an exploration of Icke’s “extraordinary” views about the origins of the virus and governments’ responses within the limits of Article 10 of the European Convention on Human Rights. The regulator stated that the licensee was not, in principle, prohibited from broadcasting opinions which diverged from, or challenged official authorities on public health information and that Icke had a right to hold and express these views. However, Ofcom queried whether in the current unprecedented circumstances the programme had ensured that members of the public were “adequately protected” from the inclusion of potentially harmful material in compliance with Rule 2.1 of the Broadcasting Code.

The regulator stated that some viewers might well have expected that Icke’s opinions would not necessarily be scientifically or otherwise empirically supported, but they had also been likely to be “particularly vulnerable” during a global public health emergency. The extended nature of the interview, its sensitive subject matter, the severity of the situation and the degree of challenge (or the inclusion of opposing views) were factors that weighed significantly in the decision-making. Ofcom found that for some 80 minutes, ESTV Ltd had provided David Icke with a platform to set out highly controversial and unsubstantiated claims (which the licensee itself considered “may be absurd”) with minimal challenge within the programme. Moreover, the impact of the limited challenge that was present was minimised by the presenter’s final comments to the interviewee: after shaking hands, Brian Rose said that David Icke had “amazing knowledge and amazing perspectives about what’s going on here.” The regulator concluded that the licensee had failed to adequately protect viewers from potential harm and considered the breach of Rule 2.1 to be serious.

Ofcom directed ESTV Ltd to broadcast a summary of its ruling. Its Sanctions Panel will consider the matter further. Ofcom’s decision was delivered within just two weeks, as the regulator prioritises cases linked to Coronavirus whereby programmes may have helped spread misinformation or included material of a misleading nature about the illness and public policy in relation to it.

This article was first published in IRIS Legal Observations of the European Audiovisual Observatory and is reproduced here with permission and thanks.

The Changing Landscape of Lockdown Law

Image by Tumisu from Pixabay

Dr Samantha Davey, Lecturer in Law, University of Essex

The original position can be summarised by the Government’s mantra ‘stay home, save lives’ which became ingrained in the minds of the general public. We were permitted to leave the house for one of the following reasons only: daily exercise, medical need, caring for vulnerable individuals, to shop for essential supplies, and to go to work if it was not possible to work from home. All shops, except for those selling essential supplies such as food and medicines, were closed. We were no longer permitted to socialise, face-to-face, with people outside of our households. Social distancing became the new norm with guidance emphasising that people should maintain distances of 2m from individuals outside of our households. The changes led to the need for adjustments with many people working from home and children being educated from home. No one could have anticipated how different our lives would have become in 2020. Nor could we have predicted the restrictions on our civil liberties deemed necessary to protect the individuals most vulnerable to the virus such as the elderly and those with pre-existing health conditions. At first, many people accepted the legitimacy of these measures. Over time, however, many people in support of the Coronavirus Law and the corresponding guidance have become concerned over constraints on their civil liberties. 

The restrictions on our daily lives were (and still are) overwhelming and perplexing for many people. While these measures felt short of the tough stance taken in countries such as Russia and Spain, where people were not even allowed to leave their home for daily exercise, we are not used to the state having such control over our day-to-day lives. In the space of just over two months, not only has the legal landscape shifted dramatically but so has the social landscape. Actions once seemed natural, such as hugging and visiting close relatives, were deemed as potentially dangerous and unlawful. In order to hope to continue to enforce lockdown law, the guidance accompanying the law needs to be seen as legitimate since legitimacy fosters public obedience. 

At the time of writing, in June 2020, over 36,000 people in England have died from the coronavirus. The daily death toll has decreased gradually which has led to changes in the restrictions which will apply from June 1st and June 15th. From June 1st, schools re-opened (albeit just to reception, year 1 and year 6 pupils) and some workers were able to return to work, including those working at shops selling non-essential goods. We can now go out more than once a day for daily exercise, we will have more choices in which shops to visit and we can meet in groups of up to 6, if these meetings take place outside and there is social distance. Further relaxations are to follow on June 15th. Social distancing seems likely to continue for the foreseeable future although there are talks of reducing this from 2m to 1.5m. 

Since my original reflections on the coronavirus law, the social and legal landscape has changed significantly. From both an academic and a personal perspective, it is challenging to remain up to date with the guidance accompanying the Coronavirus Law. This law and the corresponding guidance have been likened, by some, to George Orwell’s works of fiction such as 1984. It is argued that the legitimacy of the government guidance is under threat. At best, the guidance lacks clarity and, at worst, is contestable, ambiguous and even contradictory in nature. Indeed, the government guidance accompanying the Coronavirus Law has been voluminous, confusing and, at times, contradictory. The rules change so rapidly that the metaphorical ink on the paper barely has the chance to dry before pages are ripped out and replaced with fresh pages. This raises issues about the diminishing legitimacy of such government guidance and perhaps even of the Coronavirus Law itself. What is the democratic legitimacy of guidance provided via policy documents, press briefs and pages on government websites? In other words, what democratic legitimacy does guidance have which has been created to support law?

The Coronavirus Law contains provisions which permitted the police to intervene to arrest those who had committed breaches of the social distancing requirements. Police have been involved in cases where, for example, large parties have been organised and when offences have been committed against key-workers, such as coughing on them. The key difference with the Coronavirus Law compared to many other laws is that it is emergency legislation which has not been through the usual checks and balances. Worse still, the law has been interpreted and applied in the light of rapidly evolving government guidance rather than a single, thoughtfully drafted policy document. The government has provided guidance on the law via website summaries, reports and press briefings. Sometimes these sources have been contradictory and have changed rapidly with the passage of time. Although laws change over time and what might constitute lawful conduct one day and not the next (and vice versa), it is argued that actions by state officials based on guidance rather than on specific provisions from the Coronavirus Law (such as police actions) raises issues of legitimacy. The far-reaching nature of the guidance and emphasis on controlling day-to-day conduct makes it difficult to be certain that the guidance is being observed. These are challenging times for the government and members of the public alike but law and documents which seek to define, interpret and assist in developing law ought to have legitimacy also. 

There is little doubt that the furore over Dominic Cummings and other senior government officials, who left their homes for non-essential reasons, in contradiction of the guidance provided by the Government, has led to questions about whether the public can be expected to follow guidance and face sanctions if they do not. In particular, if those in authority are not seen to follow guidance they have helped to create, it undermines the legitimacy of the guidance. The perception of differential treatment and the confusing nature of the guidance documents also serves to distract the public from the government’s main objective behind the Coronavirus Law: the protection of the health and well-being of vulnerable groups in society. Will these relaxations be welcome measures to improve the country’s economic and psychological well-being or measures which will lead to further confusion about government guidance and a corresponding weakening of the legitimacy of the Coronavirus Law itself? Only time will tell. 

Knowing all of the law, all of the time – responding to COVID-19

Photo by Phil Botha

Geoff Gilbert, Professor of International Human Rights and Humanitarian Law, University of Essex 

As Paul White has written on these pages, success in our COVID-19 response in humanitarian settings should not be measured in the ‘number of webinars, seminars, guidance and strategies’. Part of achieving success, though, is ensuring that humanitarian actors in the field are aware of key laws, so as to ensure that governments fulfil their obligations and displaced persons do not fail to obtain their rights. While this pandemic raises new challenges, there are well-established bodies of law to keep at the front and centre of responses, including international human rights law, international refugee law and international humanitarian law.

If governments and humanitarian actors are to safeguard displaced persons during this pandemic, they need to be aware of all of the law, all of the time. Only by constantly reasserting these legal commitments will governments be forced to leave no-one behind.

Protection is often thwarted by lack of access – access to safety, access by humanitarian actors, and access to services. According to UNHCR, as at 24 April 2020, there had been no serious outbreaks of COVID-19 in any refugee or IDP camp or settlement. However, governments had restricted access to protection, curtailed the rights of displaced people in their territories, and had limited humanitarian agencies’ access to them in some cases. Let’s look at each challenge in turn, and the pertinent law that can help our response.

Access to safety

Much has been published on the right of refugees to seek and enjoy asylum and protection from refoulement, despite states’ power to control their own borders in the light of the pandemic. Yet, article 14 of the Universal Declaration of Human Rights and article 33(1) of the Refugee Convention mean that states cannot use their power to control borders to override the rights of refugees and people seeking asylum. In addition, article 12 of the International Covenant on Civil and Political Rights provides the right to freedom of movement, including the right of individuals to leave their country of nationality. Article 12 also protects IDPs seeking safety within their own country.

Individuals caught up in conflict must be allowed to move within the country in order to obtain protection. According to Additional Protocol I to the Geneva Conventions, parties to an international conflict cannot constrain the movements of non-fighters ‘in order to attempt to shield military objectives from attacks or to shield military operations’ (art 51(7)). In an internal armed conflict, Additional Protocol II provides that ‘displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand’ (art 17(1), emphasis added). Principles 5–9 of the Guiding Principles on Internal Displacement are about trying to prevent displacement, but Principle 15 recognises that when people are displaced, they have the right to leave their country and seek asylum.

Access by humanitarian agencies

Under its 1950 Statute, UNHCR has a unique mandate to provide international protection to refugees; its extended mandate includes conflict-driven IDPs and other persons of concern. To fulfil that role, UNHCR needs access to these populations, and governments have a duty to cooperate with UNHCR in the exercise of its functions (Refugee Convention, art 35). 

During the pandemic, however, access by humanitarian actors has been restricted, particularly in conflict zones – even though they face the same COVID-19 threat. To resolve this, regard needs to be had not just to human rights law, but also to the international law of armed conflict and the international rule of law which strangely have been missing from much of the current analysis.

Under the 1949 Geneva Conventions, the International Committee of the Red Cross and ‘any other impartial humanitarian organization’ (Geneva Convention IV, art 9; Additional Protocol I, art 5; Additional Protocol II, art 18(1)) may undertake care for the sick, while parties to the conflict should permit ‘relief actions which are humanitarian and impartial in character and conducted without any adverse distinction’ (common art 3). The UN General Assembly has also affirmed that international and national rule of law applies to states and international organizations. Read with the 2018 Global Compact on Refugees, which ‘emanates from fundamental principles of humanity and international solidarity, and seeks to operationalize the principles of burden- and responsibility-sharing to better protect and assist refugees and support host countries and communities’ (para 5) and the humanitarian principles that include humanity, neutrality and impartiality, it is clear that states have obligations to ensure access so that people’s essential and medical needs can be met.

Access to services

Displaced people need to be able to obtain a variety of services, whether they are refugees or IDPs. During the pandemic, the most obvious is access to health care. However, when it comes to accessing health care, legal status matters. IDPs, by definition, are within their own country so should have access to all services as normal (unless, of course, their displacement resulted from an event that disrupted services for everyone). As for refugees, it will depend on the laws of each country, but if a country has recognised someone as a refugee then he or she will ordinarily be treated the same way as a national. However, asylum seekers may not have full access to health care. That said, they should always have access to emergency care – there should be no discrimination based on the fact that they are seeking asylum.

Refugees, asylum seekers and IDPs must be able to access the highest attainable standard of health (International Covenant on Economic, Social and Cultural Rights, art 12). If people are scared that seeking medical advice might lead to their detention and removal, then they will be more likely to conceal their presence. And if they are contagious, then this has huge risks for the virus spreading. It therefore makes sense – for everyone – to ensure that displaced people have as much access as possible to testing and health care. 

Equally, they need access to information, which includes access to the internet. Access to the internet for information has been recognised as a right by the Human Rights Council, and governments must ensure there is no digital divide. As UNHCR’s guidance has made clear, that information must be understandable by refugees, asylum seekers and IDPs, possibly requiring governments and UNHCR to combine their resources. 

Likewise, everyone has the right to an adequate standard of living (ICESCR, art 11). What is adequate in the time of a global pandemic that requires social distancing is clearly different from what would be acceptable at other times. It should also be noted that over 60 per cent of refugees live in urban settings, not camps, so the ability of international organisations to regulate accommodation in such circumstances is limited.

The flipside of in-state services is detention by the state. Quarantining those who may have the virus is undoubtedly permitted, but it must be provided for by law, be proportionate and last for no longer than is necessary. When it comes to those held in immigration detention, governments must ensure that people are not placed at greater risk of infection from COVID-19 – social distancing and proper sanitation must be part of any detention regime.

Conclusion

The lives of displaced people are already complicated and challenging: COVID-19 has added a further layer of complexity, if not outright threat. Within the already complex context of displacement, the pandemic presents new and pressing issues for all the various actors – but existing law can address these challenges provided that we have the knowledge and will to use it. Refugees and IDPs have to be resilient to survive displacement, but, as Jane McAdam has made clear on these pages, they are in situations of vulnerability, and when states are threatened, the ‘outsider’ is frequently left unprotected.

This post was first published on the Kaldor Centre for International Refugee Law website and is reproduced here with permission and thanks.

New RightsCast Episode

Photo by Jonathan Farber

Before the COVID-19 crisis there was the refugee crisis: protecting forcibly displaced persons in a global pandemic

UNHCR have released a set of documents relating to protection considerations in the context of the COVID-19 response. Roughly 75% of refugees live in overcrowded camps, settlements or shelters around the world, where they lack access to adequate sanitation and are therefore extremely vulnerable to the COVID-19 pandemic.

Listen to the new RightsCast episode, in which Dr. Madeline Garlick of UNHCR and Professor Geoff Gilbert of the University of Essex discuss the work to protect the 80 million people of concern to UNHCR globally and how that work is adapting to the challenges posed by Coronavirus.

Their enlightening conversation ranges from a reminder of states’ obligation to provide access to asylum in a context of closed borders, to how refugees are contributing to health responses in their communities, and ultimately ends with a call for strengthened international cooperation in light of the Global Compact on Refugees.

The COVID-19 Pandemic: Five Urgent Principles for Leaving No One Behind through Technology

Photo by James Yarema

Lorna McGregor, Professor of International Human Rights Law at the University of Essex and Director of the multi-disciplinary Human Rights, Big Data and Technology Project; and Dr. Ahmed Shaheed, Senior Lecturer in Law, University of Essex, UN Special Rapporteur on Freedom of Religion or Belief and Chairperson of the URG’s Board of Trustees

The UN Secretary General has characterised the pandemic as a ‘public health emergency … an economic crisis. A social crisis. And a human crisis that is fast becoming a human rights crisis’. Other UN agencies predict global mass unemployment and severe food insecurity. If urgent action is not taken, existing structural inequalities will expand and entrench and threaten the protection of human rights and the rule of law worldwide.

As the COVID-19 pandemic has pushed the world online, technology has been critical to coping with lockdowns and keeping our communities resilient and functioning. It has enabled many people to access essential public health information, and deal with isolation by maintaining contact with families and friends and sustaining existing and building new communities. It has also been critical for accessing public services, such as through e-health services; continuing education and work online; and allowing key institutions, such as parliaments and courts, to continue to function.

However, these possibilities have been denied to many people across the world due to the ongoing digital divide. The COVID-19 pandemic has laid bare the persistence of the digital divide in its most basic form: lack of physical access to the internet. Despite recent advances in mobile-cellular network coverage, only ‘half of the world’s population’ are current internet users, with only 20% in the least developed countries. Internet access is also shaped by ongoing structural inequalities. For example, worldwide, a stark gender digital divide exists, with the OECD reporting that, ‘327 million fewer women than men have a smartphone and can access the mobile Internet’. The UN Secretary-General has also pointed out that older persons and persons with disabilities are disproportionately affected by the digital divide.

During the COVID-19 lockdowns, the digital divide has meant a lack of access to work, critical services, health information and education for individuals and groups in positions of vulnerability, entrenching existing inequalities. Some parents have reported having to choose between whether to eat or top up data for their children’s education. The digital divide has also prevented people subject to domestic violence – which has risen significantly during lockdown – from reporting and accessing help.

The COVID-19 pandemic underscores the urgent need for immediate action to address the lack of physical access to the internet. However, that will not be enough. States also need to address the complex range of factors that sustain the digital divide, even once digital access is secured, including low digital literacy skills and security concerns.

The following five principles are immediate priorities for states in responding to harm caused by the digital divide during the COVID-19 pandemic. They are not exclusive but should be the first steps towards a multi-layered and multilateral strategy to closing the digital divide:

  • Guaranteeing Internet Access as a Human Right and Public Good

States must recognise that internet access is a human right and a global public good. They should pursue policies grounded on human rights principles to fulfil that obligation, including equality and non-discrimination, inclusion and empowerment, transparency and access to remedy, and respect for human dignity and privacy, paying particular attention to digital divides experienced by particular groups, such as older persons.

  • Increasing Availability and Acceptability of Digital Infrastructure

States should take urgent action to ensure that internet access is available to all. This includes increasing the availability of broadband access of acceptable quality and speed through targeted investments, public-private partnerships, regulation, and accelerated international cooperation. States should not resort to internet takedowns and other forms of internet disruption.

  • Increasing Accessibility and Affordability of Digital Services

States need to take urgent action to enable people to get online. This includes facilitating ‘access to and affordability and use of connected digital devices’, removing barriers to internet access, such as data caps, promoting net neutrality, and increasing access to free public Wi-Fi. They also need to roll-out digital literacy programmes to increase digital skills, ensure accessibility and adaptability for persons with disabilities, and increase locally relevant content.

As digital exclusion often results from wider structural inequalities, strategies to overcome the digital divide need to be embedded in wider strategies to address existing inequalities, such as gender divides and stereotypes in society.

Targeted strategies are needed to ensure access to physical devices and digital literacy to ensure that:

  • the offline right to education applies online, equally and in a non-discriminatory way;
  • states provide remote access to health care, including for mental health, in order to avoid unnecessary potential exposure to COVID-19 by limiting visits to healthcare centres but only in a way that complies with human rights-based approaches to health care, by being equally accessible, affordable and acceptable;
  • ensure access to essential services, including food, by ensuring that services are not digitally excluding;
  • offline services and support for domestic violence are moved online, as recommended by UN Women in relation to violence against women, and increase ‘online advocacy and awareness campaigns’.

Specific measures must be taken to ensure the most vulnerable can seek the help they need online such as providing toll-free 24-hours hotlines, free texting services and online chats, remote psychological and social services as well as new and creative solutions to support those most in need. Attention should be paid to intersectional vulnerabilities that reinforce and aggravate digital exclusion.

However, the introduction or strengthening of online public services must not lead to new inequalities after the pandemic. This could arise through the permanent replacement of face to face health care or education with online services. Rather, online public services should complement and improve existing services.

  • Empowering People by Addressing Disinformation and Hate Speech without Censorship

States must take effective measures to ensure safety online, including through cybersecurity measures. The COVID-19 pandemic has resulted in a surge in hate speech and hate crimes against groups scapegoated for the spread of the virus. States and internet companies must address disinformation in the first instance by themselves providing reliable information, through robust messaging in relevant languages and including sign language. Addressing hate speech requires robust implementation of community standards by service providers while protecting free speech in line with international standards.

  • Enabling Access Online Should Not Be A Cause for More Surveillance

States must not respond to the pandemic by widening and repurposing counterterrorism tools or introducing new surveillance tools, such as some forms of contact-tracing apps, as this could risk of a new era of surveillance, censorship, repression and discrimination even more severe than post 9-11. States must ensure that they continue to comply with their human rights obligations and that any limitations to human rights meet the specific purpose of preventing the spread of COVID-19 or injury to others and are lawful, necessary and proportionate, including time-limited and with effective safeguards in place. Failure to do so would reinforce the digital divide.

Lessons from COVID-19: Serious Commitment to Overcoming the Digital Divide

At the national and international level, very little action appears to be underway to address the urgent need to close the digital divide as one means to address inequalities in access to basic services during the COVID-19 pandemic. If states fail to take urgent action to address the divide, they will be failing in multiple human rights obligations and they will worsen the multiple crises identified by the UN Secretary-General.

If they take these steps, they will not only be addressing the serious harm being experienced by so many non-internet users but will also be taking concrete action to actually realising the longstanding international commitment to address the digital divide. Response to COVID-19 has brought home the urgency of realising SDG 9c on digital inclusion. The increasing reliance of technology also shows the importance of maximising the benefits of technology while mitigating risks, and the relevance of the human rights approach to technology. In addition to immediate responses identified above, investments in effective long-term solutions are vital. Harnessing digital technologies for good requires multi-stakeholder approaches at both the national and international levels, and, as the ITU Connect 2030 Agenda identifies, must pursue the five goals of growth, inclusion, sustainability, innovation and partnerships.

This post first appeared on the Universal Rights Group website and is reproduced here with permission and thanks.

Discriminatory Torture of an LGBTI Person: Landmark Precedent Set by the Inter-American Court

Photo by Harry Quan

Professor Clara Sandoval (University of Essex), Chris Esdaile (REDRESS) and Alejandra Vicente (REDRESS)

Trigger warning: this report contains a description of sexual violence.

In the midst of the coronavirus crisis, the Inter-American Court of Human Rights (IACtHR) has issued a landmark judgment in the case of Azul Rojas Marín and Another v. Peru, enhancing the rights of LGBTI persons, and setting new standards with the potential to reduce the levels of violence suffered by this group both within and beyond the Americas. Through this case the IACtHR has developed the concept of “violence motivated by prejudice”; it concluded that discrimination based on sexual orientation can lead to arbitrary detentions of LGBTI people; it has developed its understanding of discriminatory torture; and it has set specific due diligence standards to ensure the effective investigation of these cases. The Court has ordered Peru to provide reparations to Azul including the implementation of important guarantees of non-repetition.

The case of Azul is not an isolated decision to protect LGBTI rights in the Inter-American System. Both the Inter-American Commission (IACHR) and IACtHR have been at the forefront of the protection of LGBTI rights, as illustrated by the Court’s controversial but significant Advisory Opinion 24/17 on Gender identity, and equality and non-discrimination with regard to same-sex couples, and cases such as Atala Riffo and daughters v. Chile and Duque v. Colombia. However, the Azul case goes a step further and complements other key European Court of Human Rights (ECtHR) cases such as M.C and A.C v. Romania and Identoba and others v. Georgia where the ECtHR found violations of the prohibition of torture and inhuman or degrading treatment and discrimination in relation to applicants who participated in peaceful LGBTI demonstrations, considering the States’ failure to protect demonstrators from homophobic violence and the lack of effective investigations.

What happened to Azul?

Azul Rojas Marín is a transgender woman, who at the time of the events self-identified as a gay man. She was detained late at night on 25 February 2008 by members of the Peruvian police when she was walking home. Some of the officers knew who Azul was. They insulted her and made derogatory remarks about her sexual orientation. She was forcibly taken to a police station and kept there for almost six hours, although her detention was not officially registered. During her detention, Azul was stripped naked, beaten repeatedly, and anally raped with a police baton. The insults and derogatory remarks about her sexual orientation continued throughout. She was released early the next day.

Azul reported the crime to the authorities, but they did not believe her and did not investigate properly. Different members of the justice system revictimized Azul. During the reconstruction of the crime scene, Azul was forced to face her perpetrators while they made fun of her. The prosecutor was present during her medical examination, without Azul’s consent, and kept making comments to influence the findings of the doctor. Azul’s complaint was eventually dismissed. To date, no one has been held to account or punished for what happened.

The litigation of the case

In this context REDRESS, the Coordinadora Nacional de Derechos Humanos (CNDH) and Promsex, joined efforts and filed a complaint before the IACHR in April 2009. Peru challenged the admissibility of the case, and presented various arguments to the Court on the merits.

The case was decided on the merits through the IACHR’s report 24/18. Given that Peru did not comply with the recommendations made by the IACHR, the case was referred to the Court in August 2018. The Commission noted this would be the first case before the IACtHR dealing with violence against LGBTI persons. The Court held a hearing in August 2019, and decided the case in March 2020, making significant findings of facts and law.

The arbitrary detention of LGBTI persons can be inferred when there are signs of discrimination and no other apparent reason for the detention

Peru argued that the detention of Azul took place in order to carry out an identity check as she did not have her ID with her (124). Peru disputed the length of the detention. However, the Court found that the detention was not carried out in accordance with domestic law, that one of the officers who detained Azul knew who she was, and that derogatory comments about her sexual orientation were made. The Court, following the views of the UN Working Group on arbitrary detention and those of the expert Maria Mercedes Gómez, considered that the lack of a legal basis for Azul’s detention and the existence of discriminatory elements together inferred that she was detained based on her sexual orientation (128), which automatically rendered the arrest arbitrary. The development of this standard could be crucial to combat arbitrary arrests of LGBTI people around the world for reasons based on a person’s sexual orientation or gender identity, including in the context of COVID-19.

The purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity

Peru alleged that it was not proven that sexual violence took place, because the domestic courts were unable to establish it due to the lack of direct evidence of the crime (138 and pleadings before the IACHR). It also argued that torture did not take place because two elements of the crime were missing: the intent and the purpose.

The IACtHR concluded Azul was anally raped while in detention. In contrast to the domestic courts’ approach, the IACtHR reached this conclusion by assessing various pieces of evidence, including Azul’s statements, medical examinations and the forensic analysis of the clothes she wore at the time of the events (157). The IACtHR considered that what happened amounted to torture as the intentionality, severity and purposive elements were met. Further, the Court expanded the list of specific purposes by which sexual violence can constitute torture, to include the motive of discrimination based on the sexual orientation or gender identity of the victim. Following the expert opinions of Juan Méndez and Maria Mercedes Gómez, the Court found that sexual violence that involves anal rape, especially when carried out with a tool of authority such as a police baton, all while derogatory remarks were made, shows that the specific motive of the crime was to discriminate against Azul (163).

The Court went further to label it as a hate crime given that it was the result of prejudice (165), and stated that the crime not only breached Azul’s rights but also the freedom and dignity of the whole LGBTI community (165). This finding constitutes a major development under international law as this is the first case decided by an international tribunal to conclude that torture can take place with the specific purpose of discriminating against a person because of sexual orientation or gender identity.

States have a duty to investigate violence motivated by discrimination against members of the LGBTI community

Peru argued that as soon as it learned about Azul’s allegations, it opened an investigation that was carried out with due diligence (172), although this was disputed by Azul’s legal representatives. Given the prevailing levels of impunity for such crimes in the Americas the IACtHR made a careful assessment of the facts in this regard.

The IACtHR reiterated its case law regarding due diligence in cases of sexual violence, but extended their application to violence against LGBTI persons, adding new dimensions to its existing standards. Notably, the Court found that when investigating violence States have a duty to take all necessary steps to clarify if it was motivated by prejudice and discrimination (196). The Court said that this implies that the State should collect all the required evidence, provide full reasons for its decisions and decide in an impartial and objective manner. The authorities should not ignore any facts that could establish that the violence was motivated by discrimination (196). In the case of Azul, the authorities never considered discrimination and did not pursue this line of investigation. This finding by the Court demonstrates its ongoing dialogue with the ECtHR, as it took note of Identoba (67) (which set a similar precedent but in relation to ill-treatment). However, in contrast to the ECtHR, the IACtHR does not make any reference to the difficulty of the task or the fact that it is, in the views of the ECtHR, “an obligation of best endeavours, and is not absolute”.

The Court also noted that investigations should avoid the use of stereotypes. In this case, local prosecutors undermined the declaration of Azul by stating, “but if you are gay, how am I going to believe you?” (200), and by inquiring about her past sex-life. The Court noted that such stereotypical lines of inquiry should not be used in cases of sexual violence, including when that violence is committed against members of the LGBTI community (202). This is another important contribution of the Court to the protection of LGBTI people under international law, which does not exist under ECHR jurisprudence.

The IACtHR tackles structural discrimination through reparations

The IACtHR ordered very holistic forms of reparation for both individual as well as societal harm. From an individual perspective, the Court recognised Azul and her mother as victims in the case and awarded them compensation for pecuniary and non-pecuniary damage. The Court also ordered that there should be a public ceremony, where senior government figures recognise the State’s international responsibility (232-234). It also required the State to provide rehabilitation to Azul for physical and psychological harm, including access to medicines and transport expenses necessary to undergo treatment (236).

But what is most remarkable about this judgment, and which Peru challenged during the litigation, are the measures requested by Azul and awarded by the Court to address structural discrimination as a cause of hate crimes. The Court ordered Peru to adopt a protocol for the effective criminal investigation of violence against members of the LGBTI community. The protocol shall be binding under domestic law, instruct State representatives to abstain from applying stereotypes (242), and include due diligence standards developed by the Court in the judgement (243). The Court instructed the State to provide training to members of the justice system and the police on LGBTI rights and due diligence investigations. Additionally, Peru must implement a data collection system to officially register all cases of violence against members of the LGBTI community, including disaggregated information (252).

Finally, the Court ordered Peru to eliminate from its local/regional security plans the reference to ‘eliminate homosexuals and transvestites’ since this exacerbates discrimination against members of the LGBTI community (255).

So far Peru has not commented publicly on the judgment, and it is expected that it will act in good faith and implement the judgment in full.  

Conclusion

The case of Azul Rojas Marin enhances the protection of LGBTI persons from violence and discrimination.

This decision is also a wake-up call for States, at a time when some governments in the region, including Peru and Panama, are responding to COVID-19 by adopting a gender-based alternating lock-down schedule restricting essential business such as grocery shopping. These new measures take into account only the sex that appears in identity documents, and such a simplistic method has generated a negative reaction from the LGBTI community. Hopefully, the Inter-American decision in Azul’s case will remind authorities that even emergency responses should not lead to discrimination, especially when the particular vulnerabilities of the LGBTI community require a more sensitive approach.

The authors of this blog have been representing Azul in the litigation before the Inter-American System on behalf of REDRESS.

This piece was first published on the Blog of the European Journal of International Law and is reproduced here with permission and thanks.

Beyond War Talk: Laying Bare the Structural Violence of the Pandemic

Image by Gordon Johnson

Dr. Eliana Cusato, Lecturer in Law, University of Essex

There has been much discussion about the importance of frames on our understanding of the COVID-19 pandemic and its impact on the existing legal, political and economic order. A number of interventions have already called attention to the possibilities and perils that come with mobilising different legal frameworks and institutions to respond to the pandemic, notably human rights, public health, migration, and investment protection regimes. In this piece I will focus on the temptation to frame COVID-19 as an international peace and security issue. While I share the concerns expressed by other commentators about the ‘securitisation’ of the pandemic (see herehere and here), my aim is to contribute to this discussion from a slightly different angle. Using the concept of structural violence, I intend to shed light on the socio-economic-ecologic violence that pre-exist and persist beyond the ‘crisis’ and that the ‘war’ narrative conceals.

In ‘Why it matters how we frame the environment’, cognitive linguist and philosopher George Lakoff explains what ‘framing’ is and its importance for how we think about global problems, in the specific case ecological concerns. All our knowledge involves unconscious structures called ‘frames’, while every word is defined through the frames it activates. Lakoff claims that ‘[i]n order to communicate a complex fact or truth, one must choose one’s word carefully to activate the right frames so that the truth can be understood’. In other words, one has to provide a narrative that builds up an appropriate system frame in the audience’s mind.

To give an example, Lakoff refers to a quote from a 2003 language advisory to the Bush administration:

It’s time for us to start talking about ‘‘climate change’’ instead of global warming […] ‘‘Climate change’’ is less frightening than ‘‘global warming’’ […] Stringent environmental regulations hit the most vulnerable among us – the elderly, the poor and those on fixed incomes the hardest […]. Job losses […] greater costs […] American corporations and industry can meet any challenge, we produce the majority of the world’s food, […] yet we produce a fraction of the world’s pollution.

As put by Lakoff, the idea behind the memo was that ‘climate’ had a nicer meaning, while ‘change’ left out any human cause of the change. Obviously, we know that this is scientifically untrue. The point is that the choice of words matters as it builds frames that inform our understanding of a problem and, consequently, the way we decide to deal with it. In sum, Lakoff tells us that, while we cannot avoid framing, the question of ‘whose frames are being activated – and hence strengthened – in the brains of the public’ is a crucial one.

The securitisation of COVID-19

As put by Arundhati Roy, ‘the mandarin who are managing this pandemic are fond of speaking of war. They don’t even use war as a metaphor, they use it literally’. Indeed, Donald Trump declared himself a ‘wartime president’ and proclaimed ‘We will win this war‘; Boris Johnson announced that ‘We must act like any wartime government‘; and Emmanuel Macron said ‘We are in a war’ in which ‘nothing should divert us’ from fighting an ‘invisible enemy’.

International organisations and policy makers have followed up and marked COVID-19 as a security issue. The UN Secretary General has called the coronavirus pandemic the ‘fight of a generation’ and a significant threat to the maintenance of international peace and security. Antonio Guterres warned the UN Security Council (UNSC) that the pandemic had the potential to increase social unrest and violence, which would greatly undermine the world’s ability to fight the disease. He said that UNSC involvement would be ‘critical to mitigate the peace and security implications’ and ‘a signal of unity and resolve from the council would count for a lot at this anxious time’.

For some commentators, framing COVID-19 as a ‘threat to the peace’, to use the language of Article 39 of the UN Charter, seems a natural development. The precedent invoked is UNSC response to the Ebola crisis in West Africa, which Resolution 2177 (2014) characterised as a ‘threat to international peace and security’. As such, they conclude that there is an arguable case for the Security Council to act also in response to COVID-19.

Other legal scholars have forcefully argued that the militarised language is neither accurate nor helpful for the situation we are facing. Christine Schwobel-Patel observes that ‘[a]lthough the enemy is invisible, war talk nevertheless creates the spectre of an enemy. And, because war is associated with the ‘other’, war talk has the tendency to create and build on ethno-nationalist sentiment’. For Ntina Tzouvala the ‘war’ narrative has the potential of expanding executive power, increasing tensions between states and enable measures that are counter-productive and socially destructive. She also reminds us that the securitisation of COVID-19 is not exceptional but in line with recent developments in international law.

Indeed, in the last couple of decades the UNSC has been expanding its ‘primary responsibility for the maintenance of international peace and security’ (ex Article 24 of UN Charter), by affirming its jurisdiction over a variety of issues, such as human rights violations, humanitarian disasters, organised crime, and infectious diseases. A recent example is climate change, which has been qualified in a 2009 UN Report as a ‘threat multiplier’ that may exacerbate threats caused by poverty, weak institutions, mismanagement of natural resources, and ethnic clashes. In 2007 and 2011 the UNSC hosted a thematic debates on the implications of climate change for international security, thereby asserting a link between anthropogenic climate change and increased rate of violence.

A more neglected question raised by the ‘securitisation’ of the pandemic concerns the nature of the threat posed and to whom. Like in the case of climate change and other global issues, much has to do with the concepts we use. To be clear, I agree that by securitising COVID-19 governments may use it as means to legitimise emergency powers, increased surveillance and monitoring, and even militarised responses. But can we say that the language of violence is entirely inaccurate to describe the present situation? Hardly so. Yet, rather than looking at the violence allegedly ‘caused’ by COVID-19, as in the securitisation narrative, I argue that we should focus on the structural violence of the pandemic.

Understanding the pandemic via structural violence

Writing in 1969, Johan Galtung called attention to pervasive forms of violence that are ‘built into the structure’ and that manifest themselves as inequality of power, resources and life chances. In a passage which seems to speak to the current situation, he claims that ‘if a person died from tuberculosis in the eighteen century, it would be hard to conceive this as violence since it might have been quite unavoidable, but if he dies from it today, despite all the medical resources in the world, then violence is present according to our definition’. Anthropologist and medical doctoral Paul Farmer built upon Galtung’s concept of structural violence to study the tuberculosis and HIV epidemics that killed millions of people in Haiti. He found that historical political economic domination and inequalities created a society that is ravaged by these diseases, which could be avoided or at least made less severe.

While the war metaphor and the language of ‘crisis’ distracts us from the ‘politics of everyday life’, to use Hilary Charlesworth’s words, by attending to the structural violence of the pandemic we are able to see forms of violence that pre-exist and persist far beyond the emergency. As Lutz Oette put it, COVID-19 sheds light on ‘systemic institutional shortcomings and the realities of precarious lives’: weak public health systems, overcrowded prisons and immigration detention facilities are breeding grounds for infections. The securitisation of the pandemic disguises these structural issues that result in the pandemic being effectively out of control in many countries with the most vulnerable and disenfranchised being hit the worst.

As pointed out by international economic law scholars, COVID-19 is revealing how the globalised economy based on profit accumulation and consumerism, sustained by legal norms and institutions, is deepening existing inequalities between the Global North and Global South, as well as within countries in the North. In South East Asia, the virus is exposing the weak social protection for urban poor, especially migrant workers, while for many African people working in the informal sector social distancing is a privilege they cannot afford.

Do we have a legal vocabulary to account for this violence? One of the merits of Galtung’s concept of structural violence is that it opens up the category beyond visible, direct and immediate infliction of harm to include social evils. If we think about COVID-19 in these terms, one important insight for international lawyers is that this violence (contrary to ‘personal’ violence) does not presuppose an intentional agent as perpetrator. This raises a number of challenges for a legal system built around the notions of agency, attribution, control, and causation.

The interrelation of economy and ecology

COVID-19 is an animal-borne disease which, according to the most diffused (yet controversial) reconstruction, was transmitted to a human by an animal kept in a wet market of Wuhan. The narrative framing the virus as the ‘enemy’ or a threat to international peace and security is based upon an artificial separation between humans and nature. On the contrary, the rise in zoonotic diseases (like COVID-19) shows the profound interconnection between human wellbeing and the way we treat other living beings and entire ecosystems. Moreover, by defining the virus as something ‘external’ to our society, we turn a blind eye to the centrality of nature in the existing economic system. As observed by Ntina Tzouvala, the virus is not the product of Chinese under-development, but of the country’s rapid development and incorporation into a globalised economy. The disruption of forests caused by rapid urbanisation and intensive animal farming have brought people in closer contact with wildlife.

Rather than pointing the finger at wet markets, we should look at how unsustainable development practices, often facilitated by international legal norms conceptualising nature as property or resource to be exploited, resulted in increased habitat and biodiversity loss. This is particularly important from a prevention perspective, as ecologists tell us that shrinking natural habitats and changing behaviour may create the conditions for new disease like COVID-19 to arise in future.

In conclusion, I suggest going back to Lakoff’s article. His words are a sad reminder of the difficulty of changing dominant frames, but also of the importance of developing new ones:

The environment frame sees the environment as separate from and around us. Yet, we are not separate from Nature. We are an inseparable part of Nature. Yet, we separate self from other and conceptualise Nature as other. This separation is so deep in our conceptual system that we cannot simply wipe it from out brain. It is a terribly false frame that will not go away.

[…]

The economic and ecological meltdown have the same cause, namely, unregulated free market with the idea that greed is good and that the natural world is a resource for short-term private enrichment. The result has been deadly: toxic assets and toxic atmosphere. [….] Global causes are systemic, not local. Global risk is systemic, not local. The localisation of causation and risk is what has brought about our twin disasters. We have to think in global, systemic terms, and we don’t do so naturally. Here hypocognition is tragic. We lack the frames we need.

This piece was first published on the Blog of the European Journal of International Law and is reproduced here with permission and thanks.

Contact-tracing Apps and Human Rights

Photo by engin akyurt

Lorna McGregor, Professor of International Human Rights Law and PI & Director of the ESRC Human Rights, Big Data and Technology Project at the University of Essex

The Covid-19 pandemic engages the full spectrum of states’ human rights obligations. In addressing the virus itself, states are required to protect the rights to life and the highest attainable standard of health (right to health) and ensure that no-one suffers discrimination in access to and the nature of healthcare. States’ (in)action in meeting their obligations to fulfil the rights to health and life has direct consequences for the enjoyment of all human rights, including the rights to liberty and security, education, food, work, housing, privacy and freedom of movement, association and expression. States therefore have to take proactive measures to prevent the spread of Covid-19 in order to protect life and health. However, as human rights are indivisible and inalienable, they must only do so in ways that do not violate absolute rights, such as the prohibition of torture, and only limit other rights in ways that are lawful, necessary and proportionate.

In this blog, I examine the role of contact-tracing apps as central to many states’ strategies to track the spread of Covid-19 and end ‘lockdown’, which would alleviate the pressure on many other human rights. Some contact-tracing apps have already been rolled out, such as Singapore’s TraceTogether app and others are under development, including in the UK and France. Many concerns have been expressed about the use of contact-tracing apps due to the significant risks they pose to human rights and their potential contribution to a dramatic new era of surveillance. Given these risks, I argue that states need to be able to answer three questions, if they are to consider introducing – or continuing – with their use of contact-tracing apps. These questions are:

  1. Is there scientific justification for the use of contact tracing apps as a means to fulfil states’ obligations to protect the rights to health and life?
  2. If there is, does the design and deployment of contact tracing-apps meet the tests of legality, necessity and proportionality?
  3. Has the state put in place measures to prevent harm to human rights in the future, by preventing mission creep and the normalisation of contact-tracing apps?

1. Is there scientific justification for the use of contact tracing apps as a means to fulfil states’ obligations to protect the rights to health and life?

Contact-tracing apps may be seen as a means to fulfil states’ positive obligations to protect the rights to health and life. However, it is not enough for states to simply assert that the apps are aimed at protecting the rights to life and health; rather they must be ‘scientifically justified’. Contact-tracing is a common technique in public health surveillance. It is used to identify people who may have been in contact with someone diagnosed with a virus in order to provide them with information about prevention and treatment. At this stage in the Covid-19 pandemic, contact-tracing by humans is considered to have many limitations due to the labour required, limited available testing and the spread of the virus. While presented as an alternative to human contact-tracing, it is unclear whether contact-tracing apps are capable of fulfilling this role, particularly in the absence of widespread testing. This has led to some commentators asking whether contact-tracing apps are just another example of techno-solutionism or as Ross Anderson has suggested, ‘do-something-itis’.

A number of commentators, including Anderson, the Ada Lovelace Institute and Privacy International, point out that if voluntary, there is likely to be a low-level of buy-in (in Singapore, reports suggest only 17% of the population use the app although Oxford researchers predict a much higher rate in the UK and argue that while a 60% take-up would work best, a lower rate of engagement could still contribute to a reduction in cases). With both voluntary and mandatory contact-tracing apps, the risk of denial of service attacks and abuse are high as is the likelihood of failing to report symptoms or diagnosis or reporting false information. This risk increases if adverse consequences attach to self-reporting, such as extended lockdown, inability to work or access public spaces. These observations suggest that contact-tracing apps are unlikely to have general scientific justification and thus require states to make a clear scientific case for how, and, in what way, the specific contact-tracing app being proposed could contribute to protecting the rights to health and life.

In protecting the rights to health and life, it is also critical that states do not overly focus on one particular solution, such as contact-tracing apps, as the fulfilment of these obligations requires complex and multi-layered strategies and resource. Lisa Forman argues that the failure of many states to act quickly to address Covid-19 through ‘wide-spread testing, contact tracing, and more adequately preparing health care settings for COVID-19 patients’ has meant that ‘[h]ealth care systems throughout Europe and North America are already struggling to mount adequate public health and clinic responses, with facilities overwhelmed, basic testing and protective gear in short support, and care triaged to those with the best chance of survival’. Javier Ruiz also argues that ‘access to testing, treatment and vaccines once they appear’ should be the ‘real priority’. Even if contact-tracing apps present part of the solution, as Anderson notes ‘[w]e must not give policymakers the false hope that techno-magic might let them avoid the hard choices’ of resource allocation to public health.

2. If there is scientific justification, does the design and deployment of contact tracing-apps meet the tests of legality, necessity and proportionality?

If states are able to make the scientific case that contact-tracing apps, on their own or in combination with other measures, can contribute to protecting the rights to life and health, the question then becomes whether the use of such technology impacts other rights and if so, whether the limitations are lawful, necessary and proportionality.

        a. The Impact of Contact-Tracing Apps on Human Rights

Contact tracing apps take different forms; as does the nature of their implementation. All forms impact human rights in some way, although varied in scale and extent.

Yuval Noah Harari has warned that resort to surveillance technologies, such as contact tracing apps, in response to the Covid-19 pandemic constitutes ‘an important watershed in the history of surveillance … signif[ying] a dramatic transition from “over the skin” to “under the skin” surveillance’. The concern is not only that contact-tracing apps could introduce an unprecedented level of surveillance during the pandemic, but that through mission creep and normalisation, we may not be able to ‘go back to normal’ and could see such technologies being deployed in other areas of life, during and after the pandemic.

These risks are particularly acute where contact-tracing apps are mandatory. This not only facilitates wide-scale surveillance but also puts people who do not own smart phones at risk of punishment, the drawing of adverse and discriminatory inferences, and unequal access to health information. Even if ostensibly voluntary, the use of contact-tracing apps could become de facto mandatory for some people, if access to work or public spaces and services is conditioned upon use of the app.

The way the app functions also has significant implications for human rights. If the app means that a person is placed under constant surveillance, this could potentially be interpreted as a restriction on freedom of movement and even, a de facto form of deprivation of liberty. They also pose significant implications for other human rights, including privacy, particularly if they reveal location data and other identifiable information; data are held centrally rather than localised on a person’s phone; data are retained rather than deleted beyond the isolation period; and are deployed by or are accessible to private companies and law enforcement or intelligence agencies (whether by design or by governments compelling health authorities to share data) with the risk that the data and technologies are repurposed, now or in the future. As discussed below, many of these issues can be overcome in the design of the apps and the legal framework put in place to oversee their use. However, it is never possible to fully remove the risks to privacy, even where data are anonymised, and the risk of mission creep and normalisation of such technology will remain high.

        b. Legality, Necessity and Proportionality

As noted at the outset, international human rights law recognises that certain rights can be limited, like the right to privacy. The 1984 Siracusa Principles foresee response ‘to a pressing public or social need’ such as public health as a possible ground for the limitation of rights. However, they also require that the essence of the right must not be undermined and the limitation must be prescribed by a ‘clear and accessible’ law, pursue a legitimate aim, be necessary and proportionate and ‘adequate safeguards and remedies’ put in place. The measures must also be timebound and purpose-limited to the specific aim of ‘preventing disease or injury or providing care for the sick and injured’.

The jurisprudence of the European Court of Human Rights establishes that states must provide ‘relevant and sufficient’ justifications for limiting a right, which ties back in with a requirement for a scientific justification for contact-tracing apps. Moreover, even if scientifically justifiable, to constitute a proportionate measure, the Siracusa Principles (and international and regional jurisprudence) set out that states must ‘use no more restrictive means than are required for the achievement of the purpose of the limitation’. Thus, the burden lies with states to show that they cannot achieve the goal of preventing the spread of Covid-19 by ‘less-restrictive-means’, including non-technological. 

The least restrictive means test also provides strict parameters for the form and nature of contact-tracing apps in order to minimise their impact on human rights. As discussed above, design options to minimise the impact on rights include avoiding centralised databases, not using location or identifying proximity or interaction data, and data deletion. Tech companiesnon-profits, civil society, and academics are actively investigating how apps could be designed to minimise the impact on privacy.

The purpose-limitation requirement as well as the least restrictive means test also prevent the repurposing of data by other state agencies (such as law enforcement or immigration authorities) as well as private companies for commercial purposes. Where other agencies are involved, it is critical that this limitation is enshrined within transparent data sharing agreements. These agreements should be made public, and as argued in a Joint Civil Society Statement by over 100 organisations in relation to businesses, they should contain ‘sunset clauses, public oversight and other safeguards by default’, including ensuring that ‘any intervention is firewalled from other business and commercial interests’.

To fully minimise the impact on human rights, further safeguards are needed to assess whether the involvement of other state agencies beyond public health and private companies is necessary and proportionate. This should include a presumption against involvement; independent oversight and assessment of the rationale for their involvement; temporary use of the apps; minimisation of the categories of data collected and processed through the apps;  and due diligence, vetting and scrutiny of the risks of involving other bodies, particularly private companies, based on their human rights records, including in digital surveillance. Vetting should include the possibility of external organisations, such as civil society, submitting evidence on such records.

 3. Has the state put in place measures to prevent harm to human rights in the future, through mission creep and the normalisation of these apps?

Finally, even if states can develop a framework to ensure the least intrusion into the enjoyment of other human rights, concerns about the risks of mission creep and the normalisation of the use of contact-tracing apps by states cannot be lost. As Harari observes,

You could, of course, make the case for biometric surveillance as a temporary measure taken during a state of emergency. It would go away once the emergency is over. But temporary measures have a nasty habit of outlasting emergencies, especially as there is always a new emergency lurking on the horizon.

In the future, therefore, it is foreseeable that states could make the case for the use of contact-tracing apps in other contexts, in order to surveil particular individuals or groups in society. Once such apps have been used in one context, their introduction in other areas, even if previously inconceivable can seem less radical. As part of their obligations to prevent harm to human rights, states therefore need to be proactive in fully recognising the impact these technologies have on human rights and make clear commitments to never use such technologies where alternatives exist. They also need to ensure a strong multilateral and multistakeholder accountability and review framework in order to hold each other to account where the use of contact-tracing apps fails to meet the requirements of international human rights law.  

Conclusion

It is critical that states meet their obligations to fulfil the right to health and life in the Covid-19 pandemic. However, they do not have free rein in how they do this. They must also avoid overly relying on one solution. Protecting the right to health and life requires complex and multi-layered strategies and investment in public health and cannot be fulfilled. Contact-tracing apps pose serious risks to human rights, now and in the future. While there may be ways to minimise the impact on human rights in the implementation of specific apps, no app will be able to fully remove the risks to human rights. Given these risks, states must demonstrate why contact-tracing apps are relevant and justified in meeting the goal of preventing the spread of Covid-19, particularly once lockdown is lifted, using scientific evidence and show that no less rights-invasive solutions are available. Unless they can make this case, contact-tracing apps should not be introduced and where they have already been rolled out, they should be withdrawn.

This piece was first published on the Blog of the European Journal of International Law and is reproduced here with permission and thanks.

Grandparents: Anchors in Uncertain Times

Photo by Paolo Bendandi

Dr. Samantha Davey, Lecturer in Law at the University of Essex, explores family dynamics in the context of grandparents as primary caregivers.

Grandparents may live miles or even continents away from their grandchildren. Pre-existing relationships may have been affected adversely because of Coronavirus-related self-isolation. Regardless of current events, many grandparents have played, and will continue to play, a pivotal role in the lives of their grandchildren.

Grandparents’ involvement may range from helping parents via part-time childcare to providing full-time care for children, in circumstances where children cannot be raised by their parents. The circumstances in which grandparents may become full-time carers will vary. Some parents voluntarily relinquish children into the care of grandparents. In other sad cases, Social Services may become involved in children’s lives due to issues faced by parents including alcohol addiction, drug abuse or mental illness which have led to child neglect or abuse.

In such cases, provision of care by grandparents will not necessarily have been at the parents’ behest. In circumstances such as these, grandparents are of particular importance since these children would otherwise be placed in foster care. Furthermore, some children would be placed for adoption, with a permanent loss of legal ties and relationships with birth parents and other family members, including grandparents.

Where grandparents provide an alternative care option to adoption, this route is not without challenges. Potentially, grandparents face conflicts due to a moral obligation to balance the interests of their offspring with, a moral and potentially legal obligation to protect the best interests of their grandchildren.

There are cases, for instance, where it may be appropriate for children to have only supervised contact with their parents or none at all. Furthermore, grandparents may face difficulties in receiving financial support or practical support for children who may have special educational or emotional needs.

Despite the challenges faced by grandparents, the care they provide is preferable to adoption. Indeed, when grandparents look after their grandchildren, they may well protect them from further uncertainty via foster care. This option also makes it possible to avoid the long-term severance of the legal tie between children and their birth family. In effect then, grandparents can be seen not solely as care providers but as a vital link to children’s birth family.

Unfortunately, grandparents lack automatic rights which are enjoyed by parents such as party status in legal proceedings. The involvement and importance of grandparents in children’s lives is not reflected in legislation. The government has many priorities. Reforming the law in relation to grandparents is simply not one of them. But is it time to open up a discussion on this issue? Should grandparents’ involvement in children’s lives warrant acknowledgement in legislation?

For further discussion of grandparents in the context of adoption cases read: Samantha Davey, A Failure of Proportion: Non-Consensual Adoption in England and Wales (Hart Publishing 2020). This book provides a general overview of the issues faced where adoption takes place without parental consent and considers the vital role of grandparents’ provision of care as a viable alternative to adoption.

In due course a workshop on grandparents’ rights, law and social policy will be taking place at the University of Essex. The date of this is to be announced in the future due to the lockdown which is in place currently. If you are interested in producing a paper for this event, you are a grandparent affected by these issues or you have an interest in cases of adoption without parental consent please contact Dr Samantha Davey at smdave@essex.ac.uk.

A version of this article was first published on the MIHE Blog.

Covid-19 and the UK Administrative State

Photo by Markus Spiske

Lee Marsons, GTA in Public Law and PhD candidate at the University of Essex

Though lawyers normally loathe sweeping statements, it is fair to say that Covid-19 has affected virtually everything and everyone in the British state. As part of my work for the UK Administrative Justice Institute (UKAJI), I have been recording the response to the virus particularly from an administrative and public law perspective. In a little under a week, I have recorded over 150 incidents of administrative action connected to Covid-19, including the publication of guidance, policy, practice directions, advice, amendments, instructions, orders, postponements, and regulations. These entries can be found here. This is in addition to the behemoth parliamentary action in the form of the Coronavirus Act 2020, which will significantly expand and modify a variety of executive powers and duties. Rather than analyse the ‘correctness’ of any of these measures, which I would find impossible in the anxious immediacy and constancy of the pandemic, this post will instead highlight important features of the British response to Covid-19 connected to administrative law.

The expansion of administrative powers and suspension of administrative duties

The administrative response to Covid-19 has been vast, touching, among others, court and tribunal procedure, economic regulation, education provision, immigration enforcement, local government duties, ombud complaints-handling, and social security provision. In my UKAJI collation, there have been at least 28 statutory instruments issued by Ministers, as well as advice, policy alterations, and guidance published by virtually every public body in existence. By itself, the Coronavirus Act 2020 reaches 102 sections and 29 Schedules, and it contains some of the most significant expansions of administrative power in several generations, if not ever. The Bingham Centre for the Rule of Law has described the Act as creating the most sweeping administrative powers ever taken in peacetime. However, to my mind, it is not simply the creation of new administrative powers and penalties that is of interest, but also the mass disapplication of administrative duties found in other legislation, presumably so that authorities can focus their resources on combating the pandemic.

As far as administrative powers and duties, the 2020 Act permits the following:

  • Sections 2 to 4 and Schedules 1 to 3 permit nursing and medical registrars to temporarily register new medical practitioners outside of normal training rules, so long as those registered are ‘suitably experienced’;
  • Section 10 and Schedules 8 to 11 alter existing legislation on detention for mental health reasons, with the result that a detention may be ordered by a single medical practitioner if requiring the normal two would result in undesirable delay;
  • Section 15 and Schedule 12 disapply ordinary statutory duties on local authorities that require them to provide care to children, the disabled, and the elderly;
  • Section 25 permits Ministers to require information from persons involved in the food supply chain. Section 28 gives Ministers the power to impose a financial penalty on the balance of probabilities if they believe that the person has without reasonable excuse provided that information;
  • Sections 37-38 and Schedules 16, 17, and 18 give Ministers the power to issue directions on the closure of educational and childcare facilities;
  • Section 50 and Schedule 20 give Ministers the power to issue directions on the closure of any port, which also creates an offence for failure to comply with the direction;
  • Sections 51 and Schedule 21 give public health officers, constables, and immigration officials the power to direct a person to report to a coronavirus assessment and screening centre, while creating an offence for failure to comply with the direction;
  • Section 52 and Schedule 22 give Ministers the power to issue directions as to public movement, gatherings, premises, and events, while creating an offence for failure to comply with those directions; and
  • Section 76 grants the Treasury the power to direct HM Revenue and Customs (HMRC) to have any function related to coronavirus. 

Ministers have started to exercise these powers, with the Act receiving Royal Assent on 25 March. Nevertheless, the Act is broadly inoperable thus far. The Coronavirus Act 2020 (Commencement No. 1) Regulations 2020 brought into force Schedule 13 of the Act which amends how deaths may be officially registered in England and Wales, and sections 19 and 21 of the Act which alter the requirement for confirmatory medical certificates for cremations in England, Wales, and Northern Ireland. In addition, the Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 brought into force s.10 on the modification of mental health and mental capacity legislation in Wales, along with Schedule 8 on proceedings of the mental health review tribunal in Wales. The Regulations also bring into force on 1 April s.15 which deals with the powers and duties of local authorities in Wales. The most substantial use thus far, however, has been by Scottish and Northern Irish Ministers, who issued the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and the Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020, which, inter alia, order the closure of most businesses alongside imposing conditions on public movement and gatherings, with offences created to enforce the restrictions.

Home detention and business closure through ministerial directive

One of the remarkable features of the current response is that the most significant interferences with normal liberty – such as carrying on a business, leaving the house, and gathering in public – are being achieved by delegated legislation issued by the executive. As I noted here along with Theodore Konstadinides, thus far the vast majority of this delegated legislation has been issued without having been laid before Parliament for approval, due to reasons of urgency (though will have to be laid within 28 days). The most significant orders include the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and the Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020. As I will make clearer, there are important differences between these Regulations – including the enabling power used and the imposed restrictions – but for now I will concentrate on broad similarities. Each regulation gives Ministers the power to declare an ‘emergency period’, starting when the regulations come into force. A Minister must review the need for restrictions every 21 days and the regulations expire after six months. In addition, there is a duty on the Minister to terminate a restriction if they no longer believe it to be necessary.

In terms of restrictions, the regulations impose closures on, inter alia, restaurants, cafes, bars, pubs, cinemas, betting shops, casinos, spas, salons, gyms, playgrounds, and outdoor markets (except food stalls). The regulations also impose conditions on freedom of movement and assembly. Each regulation declares, in language that feels peculiar to read in peacetime: ‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’

A reasonable excuse includes, among others, obtaining household necessities, taking exercise, seeking medical assistance, attending a funeral, donating blood, avoiding injury or harm, caring for the vulnerable (defined as a person over 70, a person with a listed underlying health condition, or a pregnant woman), and to attend work where it is not reasonably possible to work from home. In addition, public gatherings of more than two people are prohibited, except for a finite number of reasons, including that the people are members of the same household, participating in lawful work, or fulfilling a legal obligation.

These restrictions are enforced by constables, police community support officers, designated local authority officers, or any other person designated by Ministers. These officials may issue a ‘prohibition notice’ to any person they reasonably believe is violating a restriction, if it is necessary and proportionate to prevent a person from violating that restriction. It is an offence, without reasonable excuse, to contravene a prohibition notice. Officials may also direct a person to return home, direct the dispersal of a gathering, or use reasonable force to require these things. Officials may further direct an adult responsible for a child to secure a child’s compliance with the restrictions if a child is repeatedly failing to comply. Contraventions may be punished by officials through ‘fixed penalty notices’, that is, financial penalties of £60 for a first contravention (or £30 if it is paid within fourteen days), £120 for a second contravention, up to a maximum of £960 for subsequent contraventions. No prosecution may be brought before twenty-eight days have passed since the imposition of the penalty and no prosecution at all may be commenced if a person has paid their liabilities under the notice.

One curious feature to emerge among the UK’s constituent nations is the slightly different restrictions imposed by the individual regulations. In Wales, Regulation 8 of expressly limits exercise to no more than once a day. In the English equivalent, there is no such limitation, nor in the Scottish or Northern Irish equivalents. Moreover, Regulation 4 of the Scottish Regulations and Regulation 6 of the Welsh Regulations require any business which is permitted to be open to take reasonable measures to ensure that persons maintain a distance of two metres while in the premises. There is no such requirement in the English or Northern Irish equivalents.

The vires of the Regulations

Another notable feature is that both the English and Welsh Regulations were issued under s.45C of the Public Health (Control of Disease) Act 1984, which enables Ministers to impose, inter alia, ‘restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health’ (s.45C(3)(c). These may be provisions that are general, contingent, or specific in nature (s.45C(2)(b)) and s.45F makes clear that Ministers may create offences, confer functions on any person, and provide for the enforcement of restrictions. Despite this apparent breadth, in a fascinating blog, Lord Anderson – the former Independent Reviewer of Counter-Terrorism Legislation – has highlighted a plausible vires concern. This is that s.45C(4) declares that restrictions may include in particular:

(a) a requirement that a child is to be kept away from school;

(b) a prohibition or restriction relating to the holding of an event or gathering;

(c) a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains; and

(d) a special restriction or requirement.

A special restriction or requirement in (d) is one that can only be applied by a magistrate under s. 45G(2). Anderson’s argument is that while the words in particular mean that the list is not exhaustive, any restriction imposed must nevertheless be eiusdem generis (of the same nature) as those in the list. The difficulty is that the listed examples more naturally refer to individual persons, not the entire country at large. Therefore, as Anderson notes: ‘An ultra vires challenge would attract strong arguments in both directions.’

By contrast, the Northern Irish and Scottish regulations were made under Schedules 18 and 19 of the Coronavirus Act 2020 respectively, which empower Northern Irish and Scottish Ministers to achieve the same in virtually identical language. This difference in enabling power is because the 1984 Act, by virtue of s.79, does not extend to Scotland or Northern Ireland. But I do not foresee any different vires issue arising from the use of different statutory frameworks. Not only is the language identical in the empowering provisions, but the subsequent provisions imposing conditions on those powers are also near identical, albeit modified to fit context. Section 45D(1) of the 1984 Act reads:

Regulations under section 45C may not include provision imposing a restriction or requirement…unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.

And paragraph 2(1) in, for example, Schedule 19 of the 2020 Act reads:

Regulations under paragraph 1(1) may not include provision imposing a restriction or requirement…unless the Scottish Ministers consider, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.

Given the particular impact of Covid-19 on the elderly and medically vulnerable; the consistent global action comparable to the UK’s; the lethality and infectivity being higher than standard influenza; the novel nature of the disease; the lack of judicial medical expertise; the importance of early and rapid containment; the lack of a vaccine; the possibility of a second winter peak in 2020; the fact that government policy appears simply to be following its medical officers; and evidence that the initial distancing advice was not being followed to a maximal degree, in my view suggests that, on a judicial review, these measures would be regarded as well within proportionate use of the powers.

Discouraging misbehaviour and zealous enforcement

One interesting, potentially problematic feature of the administrative response has been the eliding of the subtle – but crucial – distinction between government advice and the actual rules imposed by the Regulations. Naturally, ministerial advice as to social distancing and isolation is not replicated verbatim in the delegated legislation. This has led to debates about the legitimate role of the police in discouraging irresponsible behaviour, even when no specific rule prohibits that behaviour. One example that has rapidly become infamous is that of Derbyshire Police, who used a drone to record and publish footage of several people taking exercise in the Peak District. Derbyshire considered that it was ‘not appropriate to be getting in your car and travelling to take this exercise, particularly to a location, such as the Peak District that in normal times can become busy.’

Another concern that may proliferate is the seemingly zealous, legalistic, and literalistic enforcement of the Regulations by some officials. Section 6(2)(a) of the English Regulations, for instance, limit shopping trips to ones that ‘obtain basic necessities… and supplies for the essential upkeep, maintenance and functioning of the household…’. Because of this, one officer fined a customer in a supermarket £30 due to the customer having a birthday card alongside necessities in their shopping basket.

An inconclusive conclusion

The coronavirus pandemic is expected to peak in the UK between late April and early June of 2020. Therefore, the country is either at an early- or mid- stage in its response to the virus. Even if, on an irrationally optimistic assessment, a vaccine is produced, approved, and funded globally and imminently, the administrative situation is nevertheless changing daily – perhaps more frequently than that. Consequently, while this piece provides a brief overview of the situation at the time of writing, I am left with the inevitable unease that, even within a few hours, this information may be out of date. Such are the precarious, extraordinary times we are in.  

My thanks to Prof Theodore Konstadinides and Prof Maurice Sunkin for their comments on an earlier draft of this post.

This post first appeared on the Admin Law Blog and is reproduced here with permission and thanks.