Wednesday 15 April 2020

Handling of coronavirus ~ "high hurdles" to legal actions

On 23 March, Scottish Legal News (SLN) published an item  with the headline - Legal action against UK government over handling of coronavirus pandemic faces 'high hurdles'

The same article was reported by Irish Legal News.

The article states - "The UK government’s reaction to the coronavirus pandemic should be investigated after the emergency has abated but any legal action brought against it will face “high hurdles”, lawyers have told Scottish Legal News.

Boris Johnson’s government is widely believed
to have made a U-turn on its initial plan to allow a majority of the British population to become infected with the coronavirus in order to develop ‘herd immunity’ after a report from Imperial College London said this would result in half a million deaths. It has also been widely criticised for its failure, at the time of publication, to initiate a lockdown across the UK.

Philippe Sands QC said it would be necessary, in the aftermath of the pandemic, to establish why the government took so long to act."

The views of Aidan O'Neill QC are also referred to - "Dual silk Aidan O’Neill QC said the relevant law was “complex and developing” and that any litigants would have to clear “very high hurdles” to successfully sue for damages against the prime minister or UK government in respect of their exercise of statutory powers.

He told SLN: “The individual will have to be shown to be consciously abusing this power, without caring whether loss might result to those affected by such abuse of power. The availability of any such claim will necessarily turn on the specific facts of any case.”

Mr O’Neill said he would expect the government to legislate to deprive individual businesses of rights to compensation, as in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1964, should actions be brought at common law or for breach of EU law or for incompatibility with the European Convention on Human Rights."

The article raised - but did not answer - some interesting questions which are considered briefly in the survey below.  The survey is not intended to be comprehensive and, is certainly not intended to encourage legal actions to be taken lightly. Meticulous care will be required before commencing any legal action and the best legal advice will be crucial.

Inquiries:

If asked whether there ought to be an inquiry into the handling of the coronavirus pandemic it is likely that many people would answer YES.  Whether one will actually take place is an entirely different matter although I would not deny that political pressure might bring about some form of inquiry.

Inquiries are set up by the government and that is perhaps the first problem. Governments are not usually too keen to set up inquiries to examine their own conduct!  If sufficient pressure is brought to bear then an inquiry could be held either under the Inquiries Act 2005 or it could be a non-statutory inquiry.  In May 2018, this Institute of Government article looked at inquires and highlighted the following:
  • Most inquiries are now convened using the Inquiries Act 2005, which provides a uniform set of powers and rules for how an inquiry operates.
  • Non-statutory inquiries lack the powers and ability to take evidence under oath that are afforded to statutory inquiries. They are regarded as less adversarial than their statutory counterparts and enjoy more freedom to define how they operate, particularly with regard to taking evidence in private.
  • Public inquiries have a reputation for being slow-moving beasts. They (usually) have no set time frame and most take around two years to report back. That's likely to be unacceptable to those seeking answers in relation to coronavirus.
  • Inquiries are also expensive. According to Institute of Government, between 1990 and 2017,  the UK and devolved nations spent at least £630m on public inquiries (2017 prices). A major factor in the cost of inquiries is their length: retaining legal counsel, office space and a secretariat for an extended period of time is expensive. On 1 November 2019, The Guardian noted that the Grenfell tower inquiry has cost the taxpayer at least £40m so far, more than 100 times the savings made by swapping fire-retardant cladding on the council block for cheaper combustible panels that fuelled the fatal fire. Most of the money went on the array of more than 150 lawyers and legal fee earners representing the inquiry and the bereaved and survivors from the 14 June 2017 disaster that claimed 72 lives.
A further point is that inquiries conclude by issuing a report with recommendations but those recommendations do not bind the government. Ministers may accept a recommendation either in whole or in part or may reject a recommendation.

I would not entirely rule out the possibility of an inquiry but those seeking for a comprehensive overrarching inquiry need to bear in mind the degree of Ministerial control over the process (e.g. right to set terms of reference), the likely timescale, the costs involved. It may be that more limited and focussed inquiries aimed at improving the response to any future similar events would prove to be effective - e.g. an inquiry regarding provision of personal protective equipment etc.

Parliamentary committees:

Various parliamentary committees are well placed to conduct their own investigations.An example is the Health and Social Care Committee which has already opened an inquiry into the handling of the coronavirus outbreak. The committee's website notes - "The inquiry will consider the preparedness of the UK to deal with a potential coronavirus epidemic. MPs will focus on measures to safeguard public health, options for containing the virus and how well prepared the NHS is to deal with a major outbreak." One problem here might be the fact that the committee is chaired by the Rt. Hon. Jeremy Hunt MP who was Health Minister from 4 September 2012 to 9 July 2018. It might be thought that a conflict of interest was a distinct possibility. The BBC considered his record in that role - HERE.

Interestingly, the Infected Blood Inquiry was set up in July 2017 during the time Mr Hunt was in post. The inquiry has yet to issue its final report. Mr Hunt was succeeded as Health Secretary by the Rt. Hon. Matt Hancock.

The courts:

Judicial review?

It is reported that a number of judicial reviews of government action are already under consideration. The Canary 9 April reported that the government could be facing action over its coronavirus (Covid-19) daily briefings because campaigners say that over 80,000 people are being unlawfully discriminated against during these public addresses.

Another report is that the Independent Workers Union of Great Britain (IWGB) is launching legal action against the UK government, arguing that it is failing to protect the wages and job security of millions during the Covid-19 (Coronavirus) outbreak.  IWGB will argue that statutory sick pay, currently £94.25 per week, is discriminative against women and black, Asian and ethnic minority (Bame) employees, because these groups are statistically less likely to earn above the threshold of £118 weekly earnings needed to qualify, and are more likely to be on low pay and have less of a financial cushion.

A third area of possible concern is that the Department for Health & Social Care and/or NHS England have not published guidance on how NHS treatment for COVID-19 will be prioritised if demand outstrips supply.


Other legal actions:

The SLN article notes that Aidan O'Neill QC stated - " ... any litigants would have to clear “very high hurdles” to successfully sue for damages against the prime minister or UK government in respect of their exercise of statutory powers."

There can be no doubt that, in general, Mr O'Neill's comment is correct. Nonetheless, there are some cases in which the Supreme Court has held that, in principle, the government can be liable in tort for failure to provide adequate equipment. Some of those cases arose from the Iraq War - see Smith and others v Ministry of Defence [2013] UKSC 41 and the discussions of the cases at UK Supreme Court blog and Law and Lawyers.

The rarely used tort of misfeasance in public office might be thought to be another way in which liability could attach to Ministers. The tort has been considered as recently as 30 March 2020 by Mrs Justice Keegan in the Northern Ireland High Court - see O'Halloran v Chief Constable of the Police Service of Northern Ireland [2020] NIQB 30 at paras. 38-39.  Keegan J based her judgment on English Court of Appeal authority - Ashley v The Chief Constable of Sussex Police [2006] EWCA Civ 1085 where it is made clear that misfeasance does not depend upon a duty of care or a duty under the Convention.  The emphasis is upon the state of mind of the public officer, rather than the duty of care. In other words, the tort of misfeasance in public office is available to help to rein in the abuse of administrative or executive power - see LexisNexis Claims against public authorities overview.  It is submitted that the difficulties of establishing such abuse of power would be overwhelming regarding Ministerial handling of coronavirus. 

Coronavirus Act:

The Coronavirus Act 2020 Section 11 (Health Service Indemnity) provides that the Secretary of State may indemnify a person in respect of a "qualifying liability".

Removing rights to compensation?

Mr O’Neill said he would expect the government to legislate to deprive individual businesses of rights to compensation, as in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1964, should actions be brought at common law or for breach of EU law or for incompatibility with the European Convention on Human Rights. Any such attempt by the government, however, to retrospectively deprive people of property or compensation rights may simply spawn “a whole new raft of litigation” as the European Court of Human Rights has “repeatedly found against retrospective legislation which prevents cases from being raised that might otherwise have been anticipated in the state of the law immediately prior to the enactment.".

The Burmah Oil case [1965] AC 75 was decided by the House of Lords (Lord Reid, Viscount Radcliffe, Lords Hodson, Pearce and Upjohn). When war broke out with Japan, four associated companies owned extensive properties in Burma, including oil wells, pipe lines, refineries and other buildings and stocks of petroleum and other goods. When the Japanese invaded Burma, these were destroyed by order of the British Government. The appellants claimed that they were entitled to payment of such sum as would make good the damage sustained by them as a result of that destruction. The House of Lords upheld their claim. The decision was reversed by the War Damage Act 1965. The Act removed any right at common law to receive from the Crown compensation in respect of damage to, or destruction of, property caused (whether before or after the passing of this Act, within or outside the United Kingdom) by acts lawfully done by, or on the authority of, the Crown during, or in contemplation of the outbreak of, a war in which the Sovereign was, or is, engaged.

The tragic events in Burma 1941-42 are well discussed by Historic UK - The Fall of Singapore.



It remains to be seen, whether the government will bring forward legislation to deprive individuals or  businesses of rights to compensation in respect of losses due to official action related to coronavirus.

Human Rights Act 1998:

The UK has NOT entered any derogation with respect to the European Convention on Human Rights.

It is possible that claims could be brought under section 7 of the Human Rights Act 1998 in respect of alleged breaches of Convention Rights.


By s.6(1) of the HRA it is unlawful for a public authority to act in a way that is incompatible with a Convention right. Under s.7(1) of the Act a person may bring a claim against a public authority alleging that it has acted unlawfully under s.6 but only if he is a victim of the unlawful act. 

By s.7(7) a person is a victim under the HRA if they would be a victim for the purposes of article 34 of the Convention on making an application to the ECtHR.

By section 8 - if the court finds that any act (or proposed) act of a public authority is (or would be) unlawful, the court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. There is a power to award damages but this is a difficult area of the law - see, for example, cases such as Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406 and Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2.

Criminal liability?

There have been some suggestions that corporate manslaughter charges ought to be brought against some official bodies. The relevant Act is the Corporate Manslaughter and Corporate Homicide Act 2007This Act provides an exception to the general rule that a crown body cannot be prosecuted for a criminal offence (see section 40 of the Crown Proceedings Act 1947). Section 11 applies the 2007 Act to those government departments listed in Schedule 1 including the Department of Health and Social Care.  The Crown Prosecution Service has published guidance on the Act.

According to this Freedom of Information request and reply there were 25 prosecutions for corporate manslaughter in the years 2008-17.  In one of those cases the defendant was a NHS Trust  - the judge directed acquittal. The case is discussed here.

The management of prisons is a particular concern and the government issued guidance on 13 March and see this goverment press release of 4 April 2020 concerning release on licence of some prisoners.

15 April 2020 


 

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