scholarly journals From special powers to legislating the lockdown: the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020

2021 ◽  
Vol 72 (S1) ◽  
pp. 37-61
Author(s):  
Daniel Holder

The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 were made through temporarily inserted provisions by Westminster’s vast and rushed Coronavirus Act 2020. This itself limits duties to notify deaths to the coroner, despite Article 2 European Convention on Human Rights duties being particularly relevant to deaths in care homes and of frontline workers. The regularly amended March 2020 Northern Ireland regulations have themselves raised ‘legal certainty’ issues. Until June, official websites carried no accessible information as to their scope. Initial concerns on lack of clarity over matters such as driving for exercise gave way to greater controversy regarding the application of the regulations to the Black Lives Matter protests on 6 June 2020 through Police Service of Northern Ireland powers that had only been extended through an eleventh hour amendment the night before. The enforcement powers themselves are so widely drafted that they are reminiscent of the Special Powers Acts of the past. These issues are explored in this article.

2021 ◽  
Vol 71 (4) ◽  
pp. 537-555
Author(s):  
Daniel Holder

The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 were made through temporarily inserted provisions by Westminster’s vast and rushed Coronavirus Act 2020. This itself limits duties to notify deaths to the coroner, despite Article 2 European Convention on Human Rights duties being particularly relevant to deaths in care homes and of frontline workers. The regularly amended March 2020 Northern Ireland regulations have themselves raised ‘legal certainty’ issues. Until June, official websites carried no accessible information as to their scope. Initial concerns on lack of clarity over matters such as driving for exercise gave way to greater controversy regarding the application of the regulations to the Black Lives Matter protests on 6 June 2020 through Police Service of Northern Ireland powers that had only been extended through an eleventh hour amendment the night before. The enforcement powers themselves are so widely drafted that they are reminiscent of the Special Powers Acts of the past. These issues are explored in this article.


2020 ◽  
Vol 71 (4) ◽  
pp. OA1-OA19
Author(s):  
Daniel Holder

The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 were made through temporarily inserted provisions by Westminster’s vast and rushed Coronavirus Act 2020. This itself limits duties to notify deaths to the coroner, despite Article 2 European Convention on Human Rights duties being particularly relevant to deaths in care homes and of frontline workers. The regularly amended March 2020 Northern Ireland regulations have themselves raised ‘legal certainty’ issues. Until June, official websites carried no accessible information as to their scope. Initial concerns on lack of clarity over matters such as driving for exercise gave way to greater controversy regarding the application of the regulations to the Black Lives Matter protests on 6 June 2020 through Police Service of Northern Ireland powers that had only been extended through an eleventh hour amendment the night before. The enforcement powers themselves are so widely drafted that they are reminiscent of the Special Powers Acts of the past. These issues are explored in this article.


2020 ◽  
Author(s):  
Léon E Dijkman

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.


2021 ◽  
Vol 194 ◽  
pp. 531-680

531Human rights — Rights of women in Northern Ireland — Pregnant women and girls — Autonomy and bodily integrity — Right to respect for private and family life — Rights of persons with disabilities — Right not to be subjected to torture or inhuman or degrading treatment or punishment — Abortion law in Northern Ireland — Prohibition on abortion in cases of serious malformation of foetus, rape and incest — Balancing of rights — Whether moral and political issues relevant — Role of courts and Parliament — Whether abortion law incompatible with Articles 3 and 8 of European Convention on Human Rights, 1950 — Whether declaration of incompatibility should be madeHuman rights — Right to respect for private and family life — Qualified right — Abortion law in Northern Ireland — Prohibition on abortion in cases of serious malformation of foetus, rape and incest — Interference with right to respect for private and family life under Article 8 of European Convention on Human Rights, 1950 — Whether interference justified — Whether interference prescribed by law — Whether having legitimate aim — Whether necessary in democratic society — Whether proportionate — In case of fatal foetal abnormality — In case of rape — In case of incest — In case of serious foetal abnormality — Balancing of rights — European Court of Human Rights — Margin of appreciation accorded to United Kingdom represented by Northern Ireland Assembly — Whether legislative situation in Northern Ireland tenable — Role of legislature and courts — Whether Northern Ireland abortion law incompatible with Article 8 of European Convention on Human Rights, 1950 — Whether declaration of incompatibility should be madeHuman rights — Rights of persons with disabilities — Treaties — United Nations Convention on the Rights of Persons with Disabilities, 2006 — Northern Ireland abortion law prohibiting abortion in cases of serious malformation of the foetus — Foetus having potential to develop into child with disability in cases of serious foetal abnormality — Value of life with and without disability — Whether life having equal worth — United Nations Committee on the Rights of Persons with Disabilities recommending States amend abortion laws so as to value equally the life of a person with disabilities — Whether Northern Ireland abortion law disproportionate in cases of serious foetal abnormality — Whether abortion law in Northern Ireland incompatible with Article 8 of European Convention on Human Rights, 1950 — Whether declaration of incompatibility should be made532Human rights — Right not to be subjected to torture or inhuman or degrading treatment or punishment — Article 3 of European Convention on Human Rights, 1950 — Rights of girls and women in Northern Ireland pregnant with foetuses with fatal abnormality or due to rape or incest — Article 3 absolute right — Effect on victim — Whether mothers continuing against their will with fatal foetal abnormality pregnancies or pregnancies due to rape or incest, or having to travel to England for an abortion, likely to suffer inhuman and degrading treatment — Whether any ill-treatment under Article 3 reaching minimum level of severity — Obligations owed by the State under Article 3 of European Convention — Vulnerability of women — Personal autonomy — Whether abortion law in Northern Ireland incompatible with Article 3 of European Convention — Whether declaration of incompatibility should be madeRelationship of international law and municipal law — Treaties — Implementation — Interpretation — Effect in domestic law — International treaties to which United Kingdom a party — European Convention on Human Rights, 1950 — Human Rights Act 1998 — United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979 — United Nations Convention on the Rights of Persons with Disabilities, 2006 — Whether moral and political issues relevant — Balancing of rights — Northern Ireland abortion law interfering with right under Article 8 of European Convention on Human Rights, 1950 — Whether interference justified — Whether prescribed by law — Whether having legitimate aim — Whether necessary in democratic society — Whether proportionate — Relevance of moral and political views — Role of courts and Parliament in abortion debate — Whether pregnant women and girls subjected to inhuman or degrading treatment — Whether reaching minimum level of severity for breach of Article 3 of European Convention — Whether Northern Ireland abortion law incompatible with Articles 3 and 8 of European Convention on Human Rights, 1950 Convention — Whether declaration of incompatibility should be madeRelationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Effect in domestic law — Abortion law in Northern Ireland — Sections 58 and 59 of the Offences against the Person Act 1861 — Section 25(1) of the Criminal Justice Act (NI) 1945 — Right to respect for private and family life — Right not to be subjected to torture or inhuman or degrading treatment or punishment — Whether abortion law in 533Northern Ireland incompatible with Article 8 of European Convention — Balancing of rights — Whether abortion law justified — Whether moral and political values relevant — Margin of appreciation accorded to States by European Court of Human Rights — Whether abortion law in Northern Ireland incompatible with Articles 3 and 8 of European Convention — Whether declaration of incompatibility should be madeTreaties — Interpretation — Implementation — Application — Effect in domestic law — European Convention on Human Rights, 1950 — Interpreting European Convention in light of other international treaties to which United Kingdom a party — United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979 — United Nations Convention on the Rights of Persons with Disabilities, 2006 — Relevance of unincorporated international treaties when applying European Convention via Human Rights Act 1998 — The law of the United Kingdom


Author(s):  
Kevin Hearty

Viewing Irish republican policing memory primarily through a transitional justice lens, this chapter critically examines how Irish republicans, as a principal party to the conflict, approach the difficult issue of ‘dealing with the past’ as both collective victims and perpetrators of human rights violations during the conflict. It will interrogate the range of divergent views within modern Irish republicanism on issues such as victimhood, truth recovery, ‘moving on’ and ‘dealing with the past’. In particular, it looks at how the memory of human rights violations framed the wider policing debate and led to a master narrative of ‘never again’ whereby the value of ‘remembering’ past abuses lay in helping to prevent future repetition. This is placed against a more general backdrop of the stop-start ‘dealing with the past’ process in the North of Ireland that has included the establishment, operation and subsequent replacement of the Historical Enquiries Team (HET), the passage of the Civil Service (Special Advisers) Act (Northern Ireland), and proposals like the Haass/O’Sullivan document and the Stormont House Agreement.


Author(s):  
Chuah Siew Mooi ◽  
Ann Nicole Nunis

This chapter focuses on the experience of volunteers and frontline workers who serve in marginalized communities across Southeast Asia. More frontline workers and volunteers are taking the initiative to support marginalized communities in the region. With the rise of human rights violations towards marginalized communities in the past decade, frontline workers and volunteers face unique experiences in working with these communities, ranging from stigma and discrimination to unaddressed levels of burnout. Based on the authors' experiences working with these communities and the summary of the interviews with fellow frontline workers, the experience of working with marginalized communities, particularly those affected by HIV/AIDS and refugees, are elaborated in this chapter. Current challenges as well as recommendations are highlighted to ensure that the frontline workers and volunteers are supported throughout their vital work towards society.


2019 ◽  
Vol 68 (2) ◽  
pp. 477-494
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon

AbstractOn 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.


Author(s):  
Claire Fenton-Glynn

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.


2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.


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