COVID-19 and judicial review
On Tuesday, the Court of Appeal handed down judgment in R (Dolan & Ors) v Secretary of State for Health And Social Care & Anor  EWCA Civ 1605, in which the appellants challenged the Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350) which introduced the first lockdown in England: we noted the case here and Rosalind English posted a longer and more expert note on the UK Human Rights Blog: Dolan’s latest lockdown defeat.
David Allen Green, writing on his Law and Policy Blog. is singularly unimpressed. In Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulation he suggests that the Government should have used the Civil Contingencies Act 2004 – “a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision” – rather than the Public Health Act 1984, under which there is no real legislative control over the actions of ministers. The Court of Appeal, however, was prepared to give the Government the benefit of the doubt:
“Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.”
He reiterated his criticism on Saturday in The myths of ‘arrogant judicial power’ and ‘human rights gone mad’ and the Dolan judgment.
Treasure Act 1996
The Government has published its response to its consultation on revising the definition of treasure in the Treasure Act 1996 and revising the related Codes of Practice. DCMS plans:
- to create a new definition of treasure that incorporates “cultural significance”;
- to update the current Codes of Practice under the 1996 Act “to ensure that the whole treasure process is efficient, transparent and fair”;
- to undertake more regular and sustained engagement with the British Museum and other interested parties, to improve best practice and to work together to ensure that the 1996 Act continues to deliver its aims; and
- to work with the Ministry of Justice to commence, when practicable and in accordance with legal advice, specific sections of the Coroners and Justice Act 2009.
Specifically in relation to “religion” – in case you thought this item was totally irrelevant – DCMS intends to have further discussions with “interested parties” on legislating by statutory instrument to exempt from the legal process under the 1996 Act finds that fall under the Church of England’s faculty jurisdiction. The Response cites our post in which we considered the sale of church treasures in the case of Re St. Lawrence Oakley with Wootton St. Lawrence.
It should be noted that that Treasure Act 1996 does not extend to Scotland.
Tomorrow at Bristol County Court, four street preachers led by Michael Overd will bring a claim against Avon and Somerset Police relating to their arrests in July 2016. They are suing for assault, false imprisonment, malicious prosecution, misconduct in a public office, and breach of their Convention rights, in particular Articles 9, 10 and 11 ECHR. We shall report the result in due course, assuming that there is some kind of reliable published report. (County Court judgments only rarely appear on BAILII.)
Clergy Discipline Measure 2003 – Church of England
On 4 December, the Church of England’s CDM Working Group published a progress report acknowledging the hurt experienced by many under the CDM process and recommending that the Clergy Discipline Measure 2003 be replaced with new legislation. The report provides a formal update of the Group’s work and is a resource for use at the upcoming national consultations.
The Working Group document acknowledges the recent findings of the Sheldon Report which details the hurt that many people, specifically respondent clergy, have spoken about experiencing as a result of the functioning of the Measure. The Group also heard from individuals and groups who had faced issues when attempting to initiate complaints against clergy, particularly those relating to the safeguarding of children and vulnerable adults.
The progress report outlines a number of interim measures to address these issues which will be in place while the new legislation is developed. The proposed new legislation will include three main proposals for change which are outlined in the document – Triaging of Complaints; A Central Office; and Professional Standards – and are now being put out for consultation.
Clergy Discipline Measure 2003 – ELS Working Party
The Ecclesiastical Law Society’s Working Party on the Clergy Discipline Measure 2003 has so far published an Interim Report. A further consultation on proposals for reform is now available on the Society’s website: ELS Working Party (CDM 2003) Further Public Consultation
The consultation includes a number of specific questions, and responses would be very welcome even if you are only able to answer a few of them. Responses are welcome from clergy, from lawyers, and from laypeople such as churchwardens or PCC members who may have had some experience of the operation of the Clergy Discipline Measure – whether members of the Society or not.
Responses should be sent to firstname.lastname@example.org by 20 December 2020.
This week the All-Party Parliamentary Group on Coronavirus published its Interim Report based upon evidence gathered since its inception in July 2020. The report contains 71 key findings which inform 44 recommendations. “This is especially important now,” writes Layla Moran in the foreword, “as the UK government is gambling with the UK’s future by relaxing restrictions over the Christmas period and returning to a tier system which we know has not worked before.”
The recommendations range from the very specific (on Long Covid recognition and support) to the operational (highlighting the need for the Isolate part of Test, Trace, Isolate to be financially compensated more generously) and the strategic (the lack of a coherent exit strategy). The views expressed in the report are those of the group; this is not an official publication of the House of Commons or the House of Lords, and has not been approved by either House or their committees. All-Party Parliamentary groups are informal groups of Members of both Houses with a common in interest in particular issues,
- Dominic Ruck Keene, UK Human Rights Blog: Does the lockdown breach the right to freedom of religion?
- Andrew McKeown, Scottish Legal News: ECtHR: Judge appointed in tainted process violated defendant’s rights: a note on Gudmundur Andri Astradsson v Iceland 26374/18  ECHR 844, in which the GC found that the fact that the Minister for Justice had recommended a candidate for appointment to the newly-established Court of Appeals who had not been shortlisted by the independent evaluation panel had breached domestic law and that Mr Astradbsson’s right under Article 6(1) ECHR to a trial before a tribunal “established by law” had therefore been violated.
- Jed Meers, The Conversation: Is a Scotch egg a meal? I investigated more than 300 council rulings to find out: a serious and careful analysis of a number of local licensing rulings – to be filed under “you couldn’t make it up”.
- Marina Wheeler, UK Human Rights Blog: Puberty Blocking — can a child consent?: on the judgment of the Divisional Court in Bell & Anor v The Tavistock And Portman NHS Foundation Trust  EWHC 3274 (Admin).
- Neil Foster, Law and Religion Australia: NSW Covid-19 rules for churches from 7 Dec 2020.
Tweet of the week?
BOWLER'S NAME!!?? pic.twitter.com/nw9WVVGUIJ
— That’s so Village (@ThatsSoVillage) November 28, 2020
On 2 December, the Guardian‘s Pass Notes, Transformed by the holy spirit?, featured a bar seeking to be registered as a church under the Places of Worship Registration Act 1855 to beat COVID rules. A tequila bar in Nottingham has plans to get around tier 3 by registering itself as the Church of 400 Rabbits and claiming it is a place of worship. However, it is primarily being used as a gimmick to highlight the harsh conditions put upon the hospitality sector this year.
Inevitably, the Pass Notes also ask “Are there other loopholes?” to which we would point out that this requires a judgment of Solomon – or, failing that, the judgments in Soloman v Green (1955) 119 JP 289 and Timmis v Millman(1965) 109 SJ 31 – and statute law which defines what constitutes a “table meal”, that half-remembered concept that resulted in various ministers having (Scotch) egg on their faces.