Supporting a Fair Approach to COVID Triage

Photo by Luis Melendez

A limited supply of life-saving medical equipment in the NHS is raising important questions about how frontline clinicians prioritise coronavirus patients for use of scarce resources and Essex rights experts are providing critical support to help avoid discrimination.

A team of researchers linked to the Essex Autonomy and Ethics of Powerlessness projects have provided a vital overview of existing guidelines around the world, subjecting them to a bioethical and human rights analysis. Their work aims to help NHS ethics committees formulate fair policy and triage procedures for coping with the extraordinary pressures of the pandemic.

Published this week, their report addresses the limitation of the well-known triage principle of maximising the number of lives saved on the basis of a clinical assessment of prognosis.

In order to help clinicians potentially faced with the agonising choice of whose lives should be saved, the team have explored how guidelines address issues such as whether an age limit should be set in order to triage patients or whether randomisation is a fair approach. “Our aim has been to provide a survey of existing research and guidance in a form useful to policymakers who are struggling to formulate just and evidence-based principles of triage during the COVID-19 pandemic,” explained Professor Sabine Michalowski, from the School of Law, who is leading the project.

Because there are no easy answers or uncontroversial approaches to many of the pressing issues arising in triage, it is crucial to have clear criteria in place on which decisions are based, as well as procedures that will be followed as part of the decision-making process.

Professor Michalowski explained that human rights must not be forgotten in developing responses to the medical and economic crises.

It is important for policymakers to be aware that, although there may not be one ‘right answer’ to the question about triage management, there are clearly some ‘wrong answers’ and it’s important to design and apply criteria with acute awareness of the importance of avoiding discrimination, based on age or disability for example.

Described by one frontline professional as “extremely useful as an incredibly clear synthesis of the literature and issues”, the report will also form the basis for a lecture on the ethics of triage by Professor Wayne Martin of the School of Philosophy and Art History.

This post first appeared on the website of the University of Essex and is reproduced here with permission and thanks.

Police and Crime Commissioners’ power “corrosive,” research finds

Image by Fungai Tichawangana

The power of Police and Crime Commissioners (PCCs) to remove Chief Constables from office is having a “corrosive” effect on policing and police accountability, research undertaken at the University of Essex indicates.

The research, by Dr Simon Cooper of our School of Law, identifies two new and significant concerns regarding PCCs’ powers. He is calling for a select committee inquiry to re-examine the system for holding Chief Constables to account.

Dr Cooper gained unprecedented access to key figures from all sides, interviewing PCCs, Chief Constables and members of Police and Crime Panels (PCPs) in five police forces, as well as the person responsible for introducing the current system and one of the most senior figures in policing at a national level.

Dr Cooper said:

The interviews conducted for this research find the PCC’s power to remove their Chief Constable has already compromised the independence of these senior officers. As currently formulated, the PCC’s s. 38 power creates an environment in which it would be possible for a PCC – effectively a lay person – to command, overrule and potentially even control a Chief Constable. We urgently require a select committee inquiry to re-examine a PCC’s power to remove their Chief Constable.

The introduction, in 2012, of elected PCCs was a key element of Prime Minister David Cameron’s Big Society, billed as the replacement of an outdated bureaucracy with devolved, democratically-accountable oversight.

The PCC’s s. 38 power, which gives a PCC the exclusive power to remove their Chief Constable from power, and to exercise a broad discretion in reaching this decision, was seen as vital to delivering accountability.

Dr Cooper’s research, which was published in this year’s Volume 4 of the Criminal Law Review (pp. 291-305) and attracted the attention of The Times (£), identifies two new areas of concern. First, a PCC’s ability to remove their Chief Constable could cause an instability in police leadership and a potential culture of compliance, as Chief Constables – many close to retirement – avoid conflict with their PCC. The ease with which a PCC could remove a Chief Constable – contrasted with the complex process for removing a PCC – is seen as having resulted in a concentration of power at odds with the principles of good governance. Second, Chief Constables could be developing a practice of abstention and risk, becoming indebted to their PCC.

Senior figures interviewed by Dr Cooper also noted a ripple effect at the rank of Chief Constable, as progression to the most senior rank is no longer seen as attractive.

Interviewed by Dr Cooper, one PCC noted:

There has been a power shift, it’s a significant change and it’s no surprise that about half of the Chief Constables have gone.

Dr Cooper’s call is for a select committee inquiry to re-examine the s. 38 power, with the suggestion that the currently-limited powers of PCPs could be increased, a Code of Practice introduced and the Policing Protocol amended to encourage PCPs to proactively seek the professional advice of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Service when a PCC decides to remove a Chief Constable.

The s. 38 power has proven highly controversial. In May 2013, The House of Commons Home Office Committee argued it was “operationally disruptive, and costly, and damaging to the police and individuals concerned.” In the same year, the Stevens Review suggested that this power risked “exerting a damaging chilling effect over the leadership of the police service.”

This post originally appeared on the website of the University of Essex 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

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.

The Dobson-Rawlins Pact and the National Institute for Health and Care Excellence

Photo by Marcelo Leal

Maurice Sunkin QC (Hon), Professor of Public Law in the School of Law, University of Essex and Dr Susan McPherson, Senior Lecturer in the School of Health and Social Care, University of Essex have published an article entitled ‘The Dobson-Rawlings pact and the National Institute for Health and Care Excellence: Impact of Political Independence on Scientific and Legal Accountability’.

The article, an example of the rich possibilities for cross-disciplinary work on law and health matters, considers whether the independence of the National Institute for Health and Care Excellence (NICE), while safeguarding guidelines from commercial lobbying, may render NICE legally and scientifically unaccountable.

The analysis examines the role of judicial reviews and stakeholder consultations in place of peer review in light of current debates concerning the depression guideline.

The full article is published in Volume 216, Issue 4 (pp. 231-234) of The British Journal of Psychiatry and can be accessed here. The full text is available here.

Weimar-on-Danube: on the Hungarian Enabling Act, the European Response, and the Future of the Union

Image by Hans Hansen

Dr. Tom Flynn, Lecturer in Law, University of Essex

The current pandemic is testing political, legal, and social systems in significant ways. Europe has faced, among other things, strains regarding the notion of solidarity within the Union, questions as to the ability of economic and financial systems to co-ordinate responses, and now, in Hungary, challenges to the claimed democratic values of the Union itself.

The Hungarian Fundamental Law of 2011 regularly contemplates its own negation: Articles 48–54 establish a total of six ‘special legal orders’. These are the ‘state of national crisis’, the ‘state of emergency’, the ‘state of preventative defence’, the ‘terror-threat situation’, ‘unexpected attacks’, and the ‘state of danger’. It is through this last provision, defined as ‘a natural disaster or industrial accident endangering life and property’ that Viktor Orbán’s Fidesz party initially channelled its legal response to the Covid-19 pandemic. However, chafing under Article 53 (3)’s imposition of a 15-day limit on decrees under the ‘state of danger’, Orbán last week used his two-thirds parliamentary majority to pass what we can rightly call an Enabling Act, allowing him to rule by decree for an indefinite period. Others have written cogently of the Act as a ‘constitutional moment’of how it fits perfectly with Orbán’s long-established patterns of behaviour; and of the dim prospects of EU law being any use against it, at least in the short- to medium-term. The purpose of this short piece is to accept and adopt these critiques, and to contrast the brilliant opportunism of Orbán’s move with the lumpen foolishness of the European response. What emerges from such a study paints a grim picture: the chancelleries of Europe full of little Neros, fiddling while the Hungarian Rechtsstaat burns.

The response from the Commission and from the Member States has been pathetic. On 31 March, Commission President Ursula von der Leyen tweeted that:

‘[i]t’s of outmost importance that emergency measures are not at the expense of our fundamental principles and values. Democracy cannot work without free and independent media. Respect of freedom of expression and legal certainty are essential in these uncertain times.’

She added that the Commission:

‘will closely monitor, in a spirit of cooperation, the application of emergency measures in all Member States. We all need to work together to master this crisis. On this path, we’ll uphold our European values & human rights. This is who we are & what we stand for.’

Such dishwater platitudes are to be expected from a President who owes her position to the votes of MEPs from Fidesz and from Poland’s ideologically-related ruling PiS party, and who thought it a clever idea to try to appoint a Commissioner for ‘Protecting Our European Way of Life’, (a post later made no less nonsensical and insulting by being changed to one of ‘promoting’ this alleged ‘way of life’).

Only very slightly less disappointing was the following day’s joint statement from Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Spain and Sweden. These 17 Member States expressed ‘deep concern’ about ‘the risk of violations of the principles of rule of law, democracy and fundamental rights arising from the adoption of certain emergency measures’.

A striking aspect of both these responses was their unwillingness—their seeming inability—to name Hungary, and to specifically state that Orbán’s power grab would be resisted and challenged. The consequences of this diplomatic squeamishness soon became clear: just a day later, on 2 April, in an act of the purest, most distilled chutzpah, the Hungarian government had the gall to join in adopting the statement issued by the ‘deeply concerned’ 17 Member States. Whatever his other flaws, we can credit Viktor Orbán with being a master of comic timing. Of course he joined the statement! Why wouldn’t he? After all, the statement did not identify any particular Member State as being the reason for the ‘deep concerns’ expressed, and by claiming to echo the Member States’ concerns, Orbán can continue to assert that his is an entirely mainstream—just very conservative—political project. This is in keeping with Fidesz’s continuing membership of the European People’s Party, which affords political cover to Orbán’s project of remaking Hungary in his image.

Meanwhile, the decrees are coming in thick and fast. The plan to build a ‘museum quarter’ in Budapest’s City Park, held up by the unexpected victory of the opposition in last year’s mayoral elections, will go ahead. A person’s legal sex will now be fixed at birth, and cannot be legally altered. Municipal theatres—rare islands of intellectual independence and the possibility of artistic and political dissent—will be brought under central government control. Quite what these measures have to do with stopping the spread of the coronavirus and managing the current crisis is not clear. What is clear is the Enabling Act is mere opportunism, seizing on a deadly threat to permit the government to go about its agenda with the very minimum of political, legal, and press scrutiny.

The idea of ‘naming and shaming’ as an enforcement method only works if you actually name offenders, and if the offenders are actually capable of feeling shame. Hungary’s mocking adoption of the joint statement demonstrates the sheer shamelessness of the Orbán government. The refusal of the Commission and the Member States to name Hungary and to specifically condemn Orbán’s behaviour illustrates the extent to which senior figures in Europe are beholden to a kind of comity of idiots, where each is afraid of being undiplomatic to the other, just in case the other might one day be undiplomatic to them.

The apparent reluctance of European heads of state and government to ‘interfere’ in one another’s ‘domestic’ affairs is a relic of a bygone age, a time when we really could draw such bright lines between the ‘national’ and the ‘European’. Our political leaders know this, but they maintain the pretence because it is a useful insulator: it preserves ‘the national’ as a kind of petty fiefdom, which will brook no criticism from outside, despite the fact that domestic action is influenced by, and in turn influences, action at the Union level and in every other Member State. The Enabling Act does not just endanger Hungary and Hungarians, but Europe and Europeans: the rot can spread from the Member States to the Union, from the Union to the Member States, and from one Member State to another. Orbán’s pollution of the Hungarian body politic; PiS’s degradation of Poland; and the murders of Daphne Caruana Galizia and Ján Kuciak are not directly related, but taken together they are all indicative of a Union sliding ever further into the mire, where the appearance of unity is more important than any actual substantive commonality of democratic standards, or those beloved ‘values’ of which we hear so much.

There has recently been at least some movement in terms of legal sanction for Orbán and those like him. AG Kokott last month argued that the CJEU should find Orbán’s ‘lex CEU’, by which the Central European University was hounded out of Budapest, in breach of EU and WTO law. This month, the CJEU held that Poland, Hungary, and Czechia had failed in their obligations under Union law to join in the EU’s relocation programme for the distribution of asylum-seekers across the Union. But these victories are partial, reactive, and belated, and have met with scorn from Fidesz. Union law in general, and the Treaties in particular, are simply not geared towards the rectification of the kind of authoritarian opportunism of which Orbán is the standard-bearer.

In the present state of Union law, the solution must be, and can only be, political. But the Hungarian Enabling Act exposes the idea that European conservatives can curb the excesses of their most obviously authoritarian bedfellows as the delusion it has always been. Nor are the EPP alone in sheltering undesirables: the Social Democrats and the Liberals are both happy to rely on the votes of members with questionable records and intentions.

The tension between ‘capital Europe’ and ‘social Europe’ is as longstanding as the disconnect between ‘economic Europe’ and ‘political Europe’, but the current crisis is bringing these tensions to boiling point. Most notable is the issue of ‘solidarity’, a word frequently on the lips of European leaders but only rarely evident in their actions. The crisis exposes the EU’s historical baggage about what it is, what it does, and what it’s meant to be. From bailouts to borders to non-interference in ‘domestic’ politics, we must stop pretending that the EU can exist as a kind of rarefied space of apolitical technocracy. In this sense, we can learn a valuable lesson from Orbán: opportunities ought not to be wasted. The homeless can be housed. Private healthcare systems can be nationalised. The Union can—and must—take action in defence of its claimed fundamental values.

A young democracy in an old nation at the very heart of Europe is being snuffed out before our eyes, and our leaders are doing nothing.

At least Nero could play the fiddle.

This post first appeared on the DCU Brexit Institute Blog and is reproduced here with permission and thanks.

New Edition of Company Law Published

Photo by Max Bender

Marios Koutsias, Senior Lecturer in EU Commercial Law and Company Law at the University of Essex and Janet Dine, Professor of International Economic Development Law at Queen Mary, University of London have published the 9th edition of their Company Law textbook.

Company law covers issues that relate to the creation of a company, its governance and administration, its relationship with important societal groups, such as employees, creditors, the environment or the local community where a company effectively operates, and issues such as the dissolution of the company after a potential insolvency and takeovers. Therefore, it is an area of law that regulates significant aspects of economic and societal activities. In this sense, an understanding of company law is indeed necessary for an understanding of the society within which it operates.

This is exactly what the book does. It explains the roots of company law in this country. It does not just look at the law but, it presents the theories and the wider socio-economic and political debates that underpin the dominant legal principles in this field. Therefore, it provides a full understanding not only of the current legislative framework, but also of the complex historical and cultural debates which came to shape it, but with a great degree of clarity.

J Dine and M Koutsias, Company Law (9th edn, Macmillan International 2020)

The textbook examines all matters which stand at the core of English company law, which is placed in an international context. It examines the nature of a company and its institutional architecture and governance which is viewed in a comparative manner with other international jurisdictions. It considers the articles of association, which are both of contractual and constitutional nature and the challenges which flow from their dual nature. It looks at corporate management issues and it focuses on balance of power between the management and the shareholders. It also examines takeovers and insolvency in detail and it places emphasis on the operation of transnational groups and the challenges stemming from their cross-border nature and operation.

Further information on the latest edition can be found here.

COVID-19 and its Impact on the Constitutional Relationship Between Government and Parliament

Photo by Heidi Fin

Theodore Konstadinides, Professor of Law, University of Essex and Lee Marsons, Graduate Teaching Assistant in Public Law and a PhD candidate, University of Essex

The Coronavirus Act 2020, the UK’s most substantial legislative response to the Covid-19 pandemic, received Royal Assent yesterday after a fast-tracked procedure through both Houses. Indisputably, the pandemic falls within the range of situations under which it is constitutionally acceptable for Bills to be fast-tracked. While there is no corollary between an expedited piece of legislation and a bad piece of legislation, fast-tracking the Coronavirus Bill carries important implications for the constitutional relationship between Government and Parliament. Not least, parliamentarians had limited time to scrutinise legislation containing measures that have been described by the Bingham Centre for the Rule of Law as ‘the most sweeping powers ever taken by the UK Government outside of wartime’. But, in this context, the implications for the balance between Government and Parliament extend beyond the immediate passage of the Act. Therefore, while Tierney and King stressed the dilemma between safeguarding public health and the protection of individual liberties vis-a-vis fast-tracked legislation, the purpose of this post is to outline a number of concerns provoked by this pandemic on the Government-Parliament relationship more broadly, while also making some comments on the Act itself.

Since the increased power of the executive in relation to Parliament is an inevitable feature of fast-track legislation, the rule of law mandates effective parliamentary scrutiny in respect of both the way the Government will implement the new powers created under the Coronavirus Act as well as the detail in which Parliament will be updated about the reach of these powers across the UK. Two proposed amendments to the Bill tabled by David Anderson and Sarah Ludford in the House of Lords: one on the provision of meaningful information to Parliament would have gone beyond what is now Section 97 of the Act; and a second requiring that powers were exercised in accordance with the Human Rights Act 1998 and the Equality Act 2020, were both endorsed by positive ministerial statements (though not directly or publicly by a Cabinet Minister). With reference to meaningful information, the Minister, Lord Newby, committed the Government to providing an explanation in two-monthly reports laid before Parliament of the Secretary of State’s reasons for continuing to make use (or otherwise) of the provisions in Part 1 of the Act (as opposed to a mere report in accordance with Section 97 about whether the provision is in force and whether any power under subsection 3(b) has been exercised – the ‘switch on – switch off’ analogy made by David Anderson). With regard to compliance with the Human Rights Act 1998, the House of Lords’ proposed amendment included a new clause to be inserted in the Act entitled ‘Powers within the Act: necessity and proportionality’ While such a clause was not inserted in the final Coronavirus Act 2020, the Minister confirmed that the powers created will be exercised in accordance with the principles of necessity, proportionality and non-discrimination and in full compliance with human rights law. These statements provide some assurance as to the right balance being struck between the powers conferred on the Government and Ministers’ accountability to Parliament which are crucial in attaining the objective of constitutional propriety and legality despite the current emergency.

Despite ministerial promises that nothing in the Act contradicts constitutional principles, outside of the Act all the relevant coronavirus delegated legislation that we are aware of has been passed without recourse to Parliament, whether by using the positive or negative resolution procedure. This includes significant measures such as the Health Protection (Coronavirus) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No 2) Regulations 2020, and the Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020. In each case, the Minister stated that for reasons of urgency it was not possible to lay the Regulations before Parliament prior to signature. This is despite the fact that some of this delegated legislation – such as s.3 of the Health Protection (Coronavirus) Regulations 2020 – create summary offences and require whole swathes of otherwise lawful economic activity to cease.

In addition, the current situation is unique in that the practical reality of social distancing and self-isolation measures mean that many MPs and peers cannot attend Parliament to scrutinise government in either chamber. Already on 19 March, the Lord Speaker’s statement on the UK Parliament’s response to the spread of COVID-19 was unequivocal:

[…] no-one should consider it is their duty to be here in present circumstances. As Parliamentarians we have a duty to show leadership and heed the clear advice of the public health experts. I would ask that everyone continues to reflect on their own situation in the light of that advice, for their own good and for the broader public interest.

Furthermore, on the 23 March 20220 the Speaker’s Statement on attendance and distancing accepted that while video conferencing could mitigate any inconvenience posed by social distancing and self-isolation measures, the work of Committees will be affected by a combination of the limited facilities available and staff absences:

We recognise the need to improve our video conferencing facilities to enable those working remotely to engage in Committee proceedings. Regarding evidence sessions, these facilities are currently limited, not least because the management of these sessions requires expert operators to produce audio-visual output of a suitable quality for broadcast use and Hansard transcription purposes. The teams who make such arrangements work are currently under—I do stress—significant strain because of staff absences. Further work in this area will be taken forward as a matter of priority over the Easter recess. Once the current situation has settled, I will commission a review to ensure we can develop systems to ensure we are ready and able to be more agile in the future.

The above social distancing and self-isolation measures and the lack of Parliament’s ability to replace in-person interactions with a virtual environment of online proceedings will no doubt have an important effect on the capacity of Parliament to scrutinise major developments, seek expert advice and hold the Government into account in the coming weeks and months.

Admittedly, some welcome developments have occurred. On 25 March 2020, for instance, the Speaker of the Commons provided a statement explaining that he was to permit Prime Minister’s Questions to run for one hour instead of the ordinary half an hour. This was to:

[…] serve as an effective replacement for separate statements on the situation of coronavirus. I will allow the Leader of the Opposition two sets of questions—he will have a total of 12, which I expect to be taken in two sets of six. Similarly, I will allow the leader of the second largest party four questions, in two sets of two. I will also, exceptionally, call a further question from an Opposition Front-Bench spokesperson.

Similarly, a number of parliamentary committees have initiated inquiries into the Government’s response to Covid-19. The Education Committee launched an inquiry on 26 March into the implications of coronavirus policy on education and children’s services, for instance, and the Joint Committee on Human Rights launched an inquiry previously into the human rights implications of the then Coronavirus Bill.

Nevertheless, these successes are made bittersweet now that Parliament has risen for an early Easter recess until 21 April 2020. While parliamentarians can submit written parliamentary questions during a recess (p. 11) and committee inquiries can continue (or, at least, in the limited way that they can be continued), optimal scrutiny of Government is less likely to be achieved if parliamentarians cannot utilise all of the parliamentary tools at their disposal. Parliamentarians can no longer ask oral ministerial questions during a recess, for instance. This will carry significant implications for parliamentary scrutiny of executive action with regard to the ability to question Ministers about decision-making and policy development, which is naturally changing daily – perhaps more frequently. To provide an important topical example of this, on 25 March 2020, Jesse Norman MP, the Financial Secretary to the Treasury, was asked by Lloyd Russell-Moyle, Labour MP for Brighton Kemptown, how the Government would be scrutinised by Parliament as to its financial support for the self-employed, to be announced after the recess started. The Minister’s response was:

When such a package is brought forward, there will be ample opportunity to debate and discuss it in the House when it returns. Before that, the Government will be held to account in the public square in the usual way, and Ministers are available for direct interrogation by any Member of Parliament who wishes to contact them.

Nevertheless, Russell-Moyle was not satisfied with this response:

It is a shame that the parliamentary authorities have not managed to get their act together to organise an electronic, online continuation of proceedings. During a recess in normal times, in a crisis, we would be recalled, and this is a crisis, so we should be able to continue our work. For Ministers to ask for our work to continue through correspondence is not satisfactory.

Russell-Moyle was perhaps correct in his pessimistic assessment. On one day – 24 March 2020 – there were 181 references to ‘coronavirus’ in written parliamentary questions asked by MPs to Ministers. Given the limited time and resources available to Ministers and their officials, it does not seem likely that written questions will provide a panacea to other lost parliamentary opportunities – whether committees which cannot continue as usual or oral questions which cannot proceed at all.

As regards the duration of the Act’s provisions, Section 88 of the Coronavirus Act 2020 allows a Minister to suspend (repeal) or revive (save to provisions set out in subsection 6), more than once, any provision of the legislation by passing a Regulation. This appears to be a wide power encroaching upon Parliament’s legislative authority and sovereignty and it is further amplified by subsection (5) which provides that the Minister can pass Regulations for different purposes, on different days in different areas; and can make technical transitional, transitory and savings provisions. Last but not least, despite the two-year sunset clause in Section 89 of the Act, Section 90(2) provides that a Minister can extend (for up to six months at a time) or terminate any of the respective Regulations beyond two-years. This seems to be necessary in the face of the pandemic but since emergency powers are meant to give the Government a temporary boost, there is no valid reason why Parliament cannot get back in the game and manage the effects of the Covid-19 pandemic when authorities start easing the current lockdown.

All in all, the nature and scale of the Coronavirus Act 2020 is extraordinary. While the current measures may have some effect in enabling the Government to respond to a public health emergency and manage the effects of the pandemic, they are encroaching upon Parliament’s territory and endanger the principle of the separation of powers. While the delegated powers in the Act are broad and the extent and effectiveness of the new powers under the Coronavirus Act 2020 is unclear, the Government is under a duty to provide clarity about their use across the UK as well as the necessity of the relevant compliance measures that it will adopt in the near future.

This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.

Coronavirus: Beyond Human Rights

Photo by Markus Spiske

Dr. Koldo Casla, Lecturer in Law, University of Essex

I live and breathe human rights, but what’s at stake is even more important.

I write this in haste, like everything that is being written about Covid19. Most of us outside China only started to take this threat seriously in the last two weeks. Scientists and politicians don’t know enough about the scale of the problem, let alone the solutions. Spain’s Prime Minister confessed that “whoever claims to know what needs to be done in this emergency will learn nothing from it.” In normal circumstances this would be profoundly concerning, yet I find his candour strangely reassuring.

As we brace ourselves against the crisis, valuable contributions have been made to examine its human rights implications. For example, Amnesty International has produced these preliminary observations on States’ international obligations. Independent UN experts have warned that emergency measures should not be used to suppress human rights. And academics have written about how States should respond from the perspective of the right to health and other social rights, and of freedom of movement and other civil rights.

The UN High Commissioner for Human Rights, Michelle Bachelet, issued a press release on March 6 to stress that “human rights need to be front and centre in the response” to Coronavirus. I tick all the boxes of the typical supporter of a statement like this. I joined Amnesty International when I was 15; have been involved in human rights activism for two decades; and teach human rights law at the University of Essex. I should agree with Dr Bachelet. However, I’m not sure I do.

Don’t get me wrong. I know that Coronavirus raises human rights issues. Restrictions on individual freedoms need to be set clearly in the law and must be both necessary and proportionate. It’s essential to ensure that measures don’t discriminate against or stigmatise any national group or and minority. While mobile apps may be helpful in containing the spread of the virus, we must remain vigilant about the potential use of artificial intelligence to gather private data.

Children’s right to food is at risk when free school meals are the only healthy things some might eat. Confinement may be necessary, but home is the unsafest place for survivors of domestic violence. Rough sleepers, refugees and asylum seekers, prisoners and people in care can find themselves in particularly vulnerable situations. The list could go on. States’ actions and omissions can turn global health emergencies into human rights crises.

Human rights are important. They always are. But I still don’t see them at the core of this unique moment in history.

Other things take centre stage in my thoughts these days. My family in Madrid and the Basque Country has been confined for more than a week now, and my partner and I have decided to join them from London. This is one of those rare occasions when the word “resilience” doesn’t sound trite. Every day I receive news and messages via social media with countless expressions of wit and solidarity from Italy and Spain, expressions that are both emotional and encouraging about what we could achieve together.

Supportive neighbours, humour, music, bingo and Zumba lessons from the roof of a block of flats – all of it shows the best of people. Family life is recognised as a right in international law, but it is more than that: it is one of society’s central pillars. What do we truly value when we are confined at home? We all know that over-dependence on technology is dangerous for a number of reasons, but what a difference video-chats and social media are making this month.

Even politics looks different. When 60% to 80% of the population could be infected by a virus for which we have no cure, political priorities gain a new perspective. And what about the irony of seeing Morocco close its border with the Spanish enclaves of Ceuta and Melilla, and Guatemala doing the same with visitors travelling from the USA?

At the time of writing both my partner and I enjoy the comfortable position of being able to work from home. We are reasonably confident that our jobs are not at risk. We are also young and healthy and can provide for ourselves. We are privileged. The prospects are very different for the vast majority of people. Ten years of austerity have made dealing with the Coronavirus exceptionally difficult for low-and middle-income families in the UK.

Covid19 is testing the strength of our social foundations. For several consecutive evenings, Spaniards are leaning out of their windows and balconies to applaud public healthcare workers. I can only hope that some politicians will remember their words whenever we go back to “normal” – for example French President Emmanuel Macron, who said on 12 March that: “There are goods and services that must be out of the laws of the market… This pandemic is showing that free healthcare for all, irrespective of income, background or profession, and our welfare state are not an expense or a cost, but precious goods, indispensable when fate kicks.”

Even the most libertarian of neoliberals are being reminded why the State is so badly needed. This is the first crisis in my living memory where all of us are truly in it together. Privileged people are feeling very vulnerable for the first time. Dealing with the virus effectively needs people staying at home, washing their hands, keeping their physical distance from each other, and covering their cough with their elbow.

But dealing with it effectively and fairly requires, among other things, guaranteeing an income for those who lose their jobs, appropriating privately own facilities like hotels, private transport and private hospitals, suspending evictions, introducing rent and mortgage payment deferment options, and ensuring gas and electricity supplies irrespective of people’s ability to pay.

This crisis begs for a bailout for the most vulnerable, a sort of people’s quantitative easing. This is a human rights principle as well: attention to the most vulnerable individuals must be prioritised in times of financial crises and emergencies. But the issue goes beyond human rights. We are talking about what a country wants to be known for, even what it is. Societies that prioritise fairness will do best out of this crisis.

Putting the economy on hold is unheard of in peacetime, and needs to be accompanied by extraordinary public investment on a scale we’ve never seen. New Zealand has announced a relief package that amounts to 4% of its GDP; the Spanish Government has promised up to 20%. A massive bill will be waiting for us afterwards. The virus is going to test the patriotism of the wealthy, measured not by the size of their flags but by how much they are willing to chip in.

This takes me to a final thought. I have made two choices. The first is to admit that I don’t know what needs to be done regarding public health. The second is to start from the premise that scientists and political leaders, regardless of their colour and ideology, are doing their best to reduce the number of deaths to the minimum.

People who are making these decisions – the most difficult in their lives – may get things wrong. They don’t have all the necessary information. They are unsure about what is likely to work. And in advance I say that I am ready to forgive them if they make mistakes. In terms of the timing of the confinement measures, I’ve decided to trust the leaders of a country that doesn’t even allow me to vote – politicians whose human rights record I have criticised many times before and no doubt many more to come.

I don’t even know if the decisions they are taking are technically the right ones. Scientists who know much more than me are clear that “there are very large uncertainties around the transmission of this virus, the likely effectiveness of different policies and the extent to which the population spontaneously adopts risk reducing behaviours.”

In this context, transparency is “the only real counter to our psychological biases.” As long as leaders are transparent about the evidence, I will meet my civic duty and sacrifice my individual preferences for the general interest of flattening the infection curve. Beyond human rights, this is the time for solidarity, kindness and collective responsibility.

I never thought I would quote three contemporary political leaders in the same piece, but this must be another sign of the exceptional nature of the circumstances: as Italian Prime Minister Giuseppe Conte said on March 11, “Let’s keep the distance now so we can embrace each other warmly and run faster tomorrow.”

This piece was originally published in Open Democracy on 19 March 2020 and is reproduced here with permission and thanks.

Achieving Justice for Victims of Gross Human Rights Violations in Sudan

Dr. Thoko Kaime, Senior Lecturer in Law, University of Essex and Lena Scheibinger

Omar al-Bashir

Significant step in the al-Bashir indictment

In February 2020, the Sudanese government indicated its intention to hand over Omar al-Bashir, the country’s former strongman to the International Criminal Court in The Hague to face charges of war crimes and crimes against humanity. Arrest warrants against al-Bashir had been issued by the ICC in 2009 and 2010 making him the first sitting head of state to be indicted by the ICC. However, al-Bashir refused to recognize the authority of the court and Sudan declined to hand him over. For ten years since the first warrant, al-Bashir continued to represent Sudan as head of state and a significant number of African Union members, who are also members of the ICC, flatly refused to execute the warrant. However, al-Bashir’s removal from power in April 2019 following mass protests and a military coup against his government changed the political pendulum in Sudan. The willingness of the transitional authorities to surrender the former strongman to the ICC should be rightly regarded as a major development in finally holding al-Bashir accountable for his crimes. It is further evidence that crimes against humanity and massive violations of human rights will not stay without any consequences.

Achieving justice for victims

Even though the details on how and when the handing over will take place are still unclear, the news of the possible transfer to the ICC is a big step forward to towards ending impunity in Sudan. However, this is only the beginning and more needs to be done. The trial of those who are responsible for the atrocities committed in Darfur constitutes an indispensable prerequisite for achieving justice and peace for the victims of that conflict. In this regard, it is not sufficient to bring only the former president to court but also to ensure that everyone involved in the massacres in Darfur is prosecuted either by the country‘s own judiciary or, in case that the national institutions are unable to fulfil this mandate, to make ready plans for trial by an international court or a special tribunal following the model of the reconciliation process in Rwanda after the 1994 genocide or the Special Court for Sierra Leone after the civil war.

The ICC and transitional politics in Africa

If al-Bashir is indeed eventually handed over to ICC by the Sudanese government, it will not be the first time that the ICC process has been used to get rid of difficult political problems by a governing regime. In Ivory Coast, the government quickly transported Laurent Gbagbo to the ICC to face a longstanding warrant that had been on ice whilst in power. The same modus befell Charles Taylor of Liberia and Jean Pierre Bemba of the Democratic Republic of Congo. Whilst this type of approach lends itself to uneven results as far as ending impunity is concerned, human rights defenders must ensure that they take full advantage of political changes in countries where perpetrators of mass human violations have hitherto been protected by the state apparatus. Meticulous documentation of crimes and the safe recording of victims and potential witnesses and other evidence will be key in any eventual prosecution as the al-Bashir case will likely demonstrate.