Legal Challenges

Judge Sides with Scottish Government on Introduction of Vaccine Passports

A Scottish judge has ruled that the legal challenge launched by the Night Time Industries Association Scotland (NTIA) failed to demonstrate that the Sturgeon Government’s plans to impose vaccine passport checks on nightclubs and other ‘large’ venues are “disproportionate, irrational or unreasonable”. The scheme will now start on Friday as planned. BBC News has the story.

Lord Burns said [introducing vaccine passport checks] was an attempt to address “legitimate issues” of the pandemic in a “balanced way”.

Rejecting the legal challenge, he noted that the plans had been signed off in principle by MSPs, and would be subject to frequent review.

The regulations underpinning the scheme have not yet been published by the Government, but will come into force at 5pm on Friday morning.

However the Government has said the rules will not actually be enforced until October 18th, to give venues time to test their systems.

The vaccine certification scheme will require venues to put in place a “reasonable system” to check the status of customers over the age of 18, with certain exemptions on medical grounds.

Venues affected include nightclubs, unseated indoor events with more than 500 people, unseated outdoor events with more than 4,000 people, and any event with more than 10,000 people in attendance.

The plans were approved by MSPs despite all three opposition parties voting against them, but the NTIA lodged a legal challenge pushing for a delay.

At the Court of Session on Wednesday, QC Lord Keen – a former Advocate General for Scotland – argued that the system was “discriminatory” against certain venues, and “wholly disproportionate”.

He said the status quo should be maintained until ministers could provide a “coherent explanation” for why the scheme was needed, adding that the court should “protect the basic legitimate rights” of the petitioners.

He said ministers were bringing forward regulations “beyond the 11th hour, in the strangest fashion”, adding: “The very fact I have had to say within 24 hours of these regulations coming into force that we haven’t seen them, is itself redolent of the problem that exists here.” …

Announcing his decision on Thursday morning, Lord Burns said he did not accept that the petitioners had demonstrated the scheme was “disproportionate, irrational or unreasonable”, or that it infringed on their rights.

He said it was “an attempt to address the legitimate issues identified in a balanced way”, and was within the margin of what the Government could decide was a reasonable response to the pandemic.

While Lord Keen had argued the decision to set up the scheme had been taken without any supporting evidence having been published, Lord Burns said the decision was “made on the basis of principle and broad outline” with details to follow.

Worth reading in full.

President Biden Tells Republican Governors Threatening Legal Action Over Vaccine Mandates: “Have at It”

Covid vaccine mandates will not be imposed on millions of U.S. federal workers and contractors without a fight from a growing list of Republican Party Governors who are threatening lawsuits. But President Joe Biden doesn’t seem to mind the prospect of legal challenges, telling his critics: “Have at it.” The Independent has the story.

The administration is gearing up for another major clash between federal and state rule. But while many details about the rules remain unknown, Biden appears to be on firm legal ground to issue the directive in the name of protecting employee safety, according to several experts interviewed by the Associated Press

“My bet is that with respect to that statutory authority, they’re on pretty strong footing given the evidence strongly suggesting… the degree of risk that (unvaccinated individuals) pose, not only to themselves but also unto others,” said University of Connecticut Law Professor Sachin Pandya.

Republicans swiftly denounced the mandate that could impact 100 million Americans as government overreach and vowed to sue, and private employers who resist the requirements may do so as well. Texas Govenor Greg Abbott called it an “assault on private businesses” while Govenor Henry McMaster promised to “fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian”. The Republican National Committee has also said it will sue the administration “to protect Americans and their liberties”. …

The White House is gearing up for legal challenges and believes that even if some of the mandates are tossed out, millions of Americans will get a shot because of the new requirements…

Biden is putting enforcement in the hands of the Occupational Safety and Health Administration, which is drafting a rule “over the coming weeks”, Jeffrey Zients, the White House Covid Response Coordinator, said Friday. He warned that “if a workplace refuses to follow the standard, the OSHA fines could be quite significant“.

Courts have upheld vaccination requirements as a condition of employment, both before the pandemic – in challenges brought by health care workers – and since the Covid outbreak, said Lindsay Wiley, Director of the Health Law and Policy Program at American University Washington College of Law.

Where Biden’s vaccine requirements could be more open to attack is over questions of whether the administration followed the proper process to implement them, she said.

“The argument that mandatory vaccination impermissibly infringes on bodily autonomy or medical decision making, those arguments have not been successful and I don’t expect that to change,” Wiley said. “I think the challenges that are harder to predict the outcome of are going to be the ones that are really sort of the boring challenges about whether they followed the right process.”

Worth reading in full.

Man Taking Legal Action Over Prison-Like Conditions at Government-Approved Quarantine Hotel

A man from Southampton is taking legal action over the prison-like conditions at a quarantine hotel which he says left him “traumatised” and suffering from depression. He was forced to stay at a Government-approved hotel for ten days (costing him £1,750) after visiting a sick relative in India, which was on the Red List at the time, and claims to have been treated like a “Covid prisoner”. BBC News has the story.

Pritheepal Singh… stayed at Park Plaza Waterloo, London, after visiting a sick relative in India.

He said the experience was like prison, with restricted exercise and food that was inappropriate for his religion.

The Department of Health and Social Care said its “robust border regime” protected the U.K. from Covid.

The hotel said it did its best to make guests feel welcome.

Mr Singh said his stay left him “traumatised” and suffering from depression.

He said: “It was pure fear. I had to go and speak to my doctors. I couldn’t sleep at night.

“I didn’t know that I was going to be treated like a Covid prisoner. It is despicable behaviour – just not acceptable.”

He said security guards stayed by his room to stop him leaving and allocated restricted fresh air breaks on the hotel roof.

Mr Singh added that he was served halal meat, which was not appropriate for his religion. …

On August 12th, the Government raised the price of hotel quarantine per adult from £1,750 to £2,285.

He isn’t the first to complain of poor conditions at a quarantine hotel. Earlier this month, one Brit staying in a Heathrow hotel said he had to move room twice due to a rodent infestation.

The BBC News report is worth reading in full.

Was Lockdown Illegal?

There has been much debate among lawyers as to whether the various “non-pharmaceutical interventions” (i.e., lockdown measures) that have been imposed over the past year and a half are actually legal.

In April of 2020, the barrister Francis Hoar wrote an article laying out the case for the illegality of Britain’s lockdown. While his piece is very much worth reading in full, I will do my best to summarise the main points here.

Hoar argues that lockdown measures were a “disproportionate interference with the rights protected by the European Convention on Human Rights”, and were therefore in breach of the Human Rights Act 1998.

To make his case, he appeals to the so-called Siracusa Principles, which were adopted by the UN Economic and Social Council in 1984. These principles stipulate that government responses to national emergencies that involve the restriction of human rights must fulfil certain criteria.

Specifically, they must be: carried out in accordance with law; directed toward an objective of general interest; strictly necessary to achieve that objective; the least intrusive way of achieving that objective; based on scientific evidence, and neither arbitrary nor discriminatory; of limited duration, respectful of human dignity and subject to review.

Hoar argues convincingly that lockdown measures failed to meet several of these criteria. For example, lockdowns were not strictly necessary, since the same outcomes could plausibly have been achieved with far less intrusive measures (i.e., a focused protection strategy).

And it’s highly doubtful that lockdowns were “respectful of human dignity and subject to review”, given that they initially proscribed all political gatherings and public demonstrations without exception – a measure unprecedented in British history.

Hoar suggests that, “were they challenged by judicial review”, the measures should be “disapplied if necessary”. (Recall that he was writing back in April of last year). Incidentally, a longer and more detailed version of his article is available here.

Another figure from the legal community to argue for the illegality of the UK’s lockdowns is Lord Sumption, the former Supreme Court Justice. In a lecture delivered to the Cambridge Law Faculty in October 2020, he claimed that lockdown measures were without legal basis, and described the U.K.’s response as “a monument of collective hysteria and government folly”.

As readers may be aware, there was in fact a major legal challenge to the U.K.’s lockdowns, brought by the entrepreneur Simon Dolan (and funded to the tune of £427,000). The challenge sought a judicial review of the lockdown measures. Unfortunately, it proved unsuccessful.

I’ve been told by people with legal expertise that mounting another challenge would be difficult, given the adverse judgement in the case brought by Dolan. It’s therefore unlikely the Government will be liable for claims from individuals and businesses who’ve suffered due to lockdown.

Nonetheless, it’s worth noting that legal bodies in each of the following countries have found at least some aspect of the lockdown policy illegal: France, Belgium, the Netherlands, Germany, Austria, Spain, Finland, Czechia, Scotland, Slovakia, Australia, New Zealand, South Africa and the United States.

So while the High Court in London did reject Dolan’s case against the Government, lockdown opponents have won important victories in a number of countries.

And given that the evidence against lockdown has only increased since the judgement in Dolan’s case, lockdown opponents will have plenty of ammunition if any future Government decides to lock down in response to a similar virus.

Nightclub Bosses Willing to Take Government to Court Over Vaccine Passports

Hospitality industry leaders have indicated that they are prepared to pursue legal action against the Government over the introduction of vaccine passports at nightclubs and other large venues, telling the Health Secretary in a letter that the plans are “highly likely to be unlawful”. The Sunday Telegraph has the story.

The new rules, announced by Boris Johnson on Monday, are due to come into effect from September when all over-18s have been offered two Covid vaccines.

From this point, the Prime Minister said, “proof of a negative test” will “no longer be enough” to secure entry.

A group of industry tycoons has written to Health Secretary Sajid Javid, warning him that introducing vaccine passports without “a proper and adequate consultation process” is “highly likely to be unlawful”.

They argue the plans could have “a discriminatory effect on grounds of race”, and risk encouraging illegal raves that lack safety arrangements.

The letter was written by Hugh Osmond, Founder of Punch Taverns and Director of Various Eateries, and signed by Michael Kill, Peter Marks and Stephen Thomas, who head the Night Time Industries Association, REKOM U.K. and The Jam House, respectively. 

REKOM UK runs 42 bars and nightclubs across Britain, while The Jam House is a popular music venue in Birmingham. …

The letter argues that the Government must initiate “a proper and adequate consultation process” with those “involved in the running of the night-time economy”.

It warns that otherwise “any decision to introduce new rules would be highly likely to be unlawful”.

It says: “Mandatory vaccine certification as a condition of entry to any venue will impact disproportionately on younger people, who are less likely to be vaccinated than those in older age groups.

“That impact is further exacerbated when the only venues currently suggested to be affected are nightclubs, whose customers are already likely to be primarily younger adults.

“It is also well known that levels of vaccination are lower in some ethnic groups than others, and there is therefore likely to be a discriminatory effect on grounds of race as well.” …

Mr Osmond accused the Government of “arbitrary” decision making and called for decisions to be based on “evidence not prejudice”.

He said: “Mandatory Covid Status Certification would strike at the heart of our liberal democracy, create a two tier society, discriminate against society’s already most marginalised groups and disproportionately affect young people who enjoy and work in this industry – who have already suffered intolerable burdens on behalf of society over the last eighteen months.”

Worth reading in full.

Stop Press: Plans to introduce vaccine passport checks aren’t just potentially unlawful but illogical, says Hugh Osmond. He points out that, under these plans: “If you are fully vaccinated but still have Covid, you can go to a nightclub. But if you test negative but are not vaccinated, you can’t.”

Travel Firm TUI Joins Airlines Suing the Government Over “Traffic Light” Travel System

Pressure is mounting on the Government to ease restrictions on overseas travel, with the travel firm TUI joining the list of airlines raising legal concerns about “inexplicable” and “shambolic” decision-making. Sky News has the story.

The travel giant said it was “inexplicable” that ministers decided to put Portugal on its “Amber List” last month – and not move the Greek and Balearic Islands, which have low Covid rates, on to the “Green List”.

Speaking at the Travel Matters conference on Tuesday, travel association ABTA also said it was considering joining TUI, Virgin Atlantic, Ryanair, British Airways’s parent group IAG, and the Manchester Airport Group in taking legal action against the Government.

Last week Ryanair Chief Executive Michael O’ Leary described the Government’s international travel policy as a “shambles” and announced legal action along with a number of partners.

Andrew Flintham, TUI Managing Director, accused the Government of not listening to the industry’s needs after Aviation Minister Robert Courts failed to turn up to the conference due to a “diary clash”.

“It is incredibly disappointing that the aviation minister didn’t come to speak with us all today,” he said.

“There is no doubt the Government needs to hear what we have to say as an industry and this once again feels like a sign they’re not.”

Worth reading in full.

12 Year-Old Schoolgirl Suing School for “Requiring” Pupils to Wear Face Masks

MailOnline has picked up on the story we’ve been highlighting in our daily newsletter for over a week: a 12 year-old schoolgirl is suing a Sheffield multi-academy trust for “requiring and encouraging” pupils to wear face masks. The case is being supported by lawyers at the Law or Fiction group.

A schoolgirl is suing a school for “requiring” pupils to wear face masks which she says “risks causing children serious harm” to their physical and mental health. 

The pupil is suing the Tapton Academy School Trust, which runs a number of primary and secondary schools in the Sheffield area, to stop it from “requiring or encouraging” children to wear masks at school to prevent the spread of Covid.

The 12 year-old, known only as AB, who is exempt from wearing a mask at school, says mask-wearing could lead to “long-term” harm.

But the Trust argues that it only encourages the wearing of masks, in line with Government guidance, in order to protect children, staff and visitors.

The Trust also says that 120 members of staff across its various schools, representing more than 10% of its total staff, have contracted coronavirus since the end of August last year.

At a remote hearing today, AB’s lawyers asked the High Court to grant an interim injunction preventing her school and the Trust from making children wear masks.

Francis Hoar, representing AB, told the court: “The school’s policy risks causing children serious harm to their physical health and their mental health.” …

“If the Trust had done its job properly… it would have gathered evidence and reached a view as to the effectiveness of this particular measure, but it has done no such thing.

“There is no evidence, effectively, of the efficacy of these instruments that are supposedly necessary to avoid the risk of transmission of the virus.”

He argued in written submissions: “The available evidence shows that not only is there no additional risk of transmission of the virus in school settings but also that, by comparison to any ordinary social or work setting, the risk is likely to be lower given the extremely low prevalence of the virus in schools.”

Mr Hoar accepted that AB did not have to wear a mask at school, but added: “The child is still faced with a school environment where a child, save those who are disabled should, must rather, wear masks, and that is enforced, the child says, aggressively.”

Worth reading in full.

If you want to contribute to AB’s CrowdJustice fundraiser, you can find it here.

Weimar Court Prohibits Mask-Wearing, Distancing Measures and Rapid Testing At Schools

A court in Weimar, Germany, has ruled that two schools should be prevented – with immediate effect – from forcing their pupils to wear masks, along with imposing social distancing measures and insisting on SARS-CoV-2 rapid tests, saying that “the state legislature regulating this area has gotten far removed from the facts, which has taken on seemingly historic proportions”. On mask-wearing, the court ruled that “the risk of infection is not only not reduced by wearing the mask, but is increased by [the widespread] incorrect handling of the mask”. The court also said “there is no evidence that compliance with distance regulations can reduce the risk of infection” and that “the regular compulsion to take a test puts the children under psychological pressure, because their ability to go to school is constantly put to the test”. The case was brought to court by a mother on child protection grounds.

There follows the text of an article published by 2020 News on this ruling – translated from German to English by Google. We think it’s so good we are reproducing it in full.

On April 8th, 2021, the Weimar Family Court decided in an urgent procedure (Az .: 9 F 148/21 – available in English here) that two schools in Weimar are prohibited with immediate effect from prescribing pupils to have mouth and nose coverings of all kinds (in particular wearing qualified masks such as FFP2 masks), complying with AHA minimum distances and/or taking part in SARS-CoV-2 rapid tests. At the same time, the court ruled that face-to-face teaching must be maintained.

For the first time, evidence has now been taken before a German court regarding the scientific meaningfulness and necessity of the prescribed anti-Covid measures. Hygiene doctor Professor Dr med Ines Kappstein, the psychologist Professor Dr Christof Kuhbandner and the biologist Professor Dr of Human Biology Ulrike Kämmerer have been heard.

The court proceedings are so-called child protection proceedings in accordance with Section 1666 Paragraphs 1 and 4 of the German Civil Code (BGB), which a mother had initiated for her two sons at the age of 14 and eight at the local court – the family court. She had argued that her children would be harmed physically, psychologically and educationally without any benefit to the children or third parties. This would also violate numerous rights of children and their parents under the law, the constitution and international conventions.

The proceedings according to § 1666 BGB can be initiated ex officio, either at the suggestion of any person or without such a person, if the court considers intervention to be necessary for reasons of the child’s best interests, § 1697a BGB.

After examining the factual and legal situation and evaluating the reports, the Weimar Family Court came to the conclusion that the now prohibited measures represent a current risk to the mental, physical or emotional well-being of the child to such an extent that further development without intervention is reasonably likely to foresee significant harm.

The judge stated:

…children are not only endangered in their mental, physical and spiritual well-being but are also currently damaged by the obligation to wear face masks during school time and to keep their distance from one another and from other people. This violates numerous rights of children and their parents under the law, the constitution and international conventions. This applies in particular to the right to free development of personality and to physical integrity from Article 2 of the Basic Law as well as to the right from Article 6 of the Basic Law to education and care by parents (also with regard to health care measures and ‘objects’ to be carried by children)…

With his judgment, the judge confirms the mother’s assessment:

The children are damaged physically, psychologically and educationally and their rights are violated, without any benefit for the children themselves or for third parties.

According to the conviction of the court, school administrators, teachers and others could not invoke the state legal provisions on which the measures are based, because they are unconstitutional and therefore null and void. Reason: You violate the principle of proportionality rooted in the rule of law (Articles 20, 28 of the Basic Law).

[The judge stated]:

According to this principle, which is also known as the prohibition of excess, the measures envisaged to achieve a legitimate purpose must be suitable, necessary and proportionate in the narrower sense – that is, when weighing the advantages and disadvantages achieved with them. The measures that are not evidence-based, contrary to Section 1 (2) IfSG, are already unsuitable for achieving the fundamentally legitimate purpose they pursue, namely to avoid overloading the health system or to reduce the rate of infection with the SARS-CoV-2 virus. In any case, however, they are disproportionate in the narrower sense, because the considerable disadvantages/collateral damage they cause are not offset by any discernible benefit for the children themselves or for third parties.

He clarifies:

Nevertheless, it should be pointed out that it is not the participants who have to justify the unconstitutionality of the interference with their rights, but rather the Free State of Thuringia, which encroaches on the rights of those involved with its state regulations, has to prove with the necessary scientific evidence that the measures prescribed… are suitable to achieve the intended purposes, and that they, if necessary, are proportionate. So far, that has not yet happened.

Legal Action Launched Against Ban on Trips for Older Care Home Residents

A legal letter sent to the Department of Health and Social Care (DHSC) says that the blanket ban on older care home residents going on trips to see family or friends violates human rights legislation. Campaigners say that residents are being treated like “a different species”. The Telegraph has the story.

A ban on care home residents taking trips is facing a legal challenge amid claims they are being treated like “a different species” and denied “simple freedoms”.

Government guidance, updated on March 9th, says trips to see family or friends “should only be considered” for under-65s while national Covid restrictions apply.

Visits out for residents, whatever their age, “should be supported in exceptional circumstances such as a visit to a friend or relative at the end of their life”, it adds – but on returning to the home, the resident must self-isolate for two weeks.

The Government said its current guidance provides a “range of opportunities” for visitors to spend time with loved ones, however, John’s Campaign, which represents those lobbying for extended visiting rights of family carers in hospitals and care homes, argue that the ban is unlawful.

Julia Jones, co-founder of the John’s Campaign, has said that care home residents have been “comprehensively ignored” over the past year of lockdowns.

The 440,000 people living in care homes include some who moved in through their own volition, with full mental capacity, never guessing that this simple freedom, enjoyed by everyone else in the population, apart from prisoners, could so easily be denied them.

Those who cannot make their own choices have relatives and friends who would normally be glad to take responsibility but have been excluded choices.

Scottish Church Closure Deemed Unlawful

The Scottish Government acted unlawfully in closing churches under coronavirus regulations, the Court of Sessions has ruled – just two days before communal worship is due to resume. The BBC has the story.

Coronavirus regulations that forced the closure of churches in Scotland have been deemed unlawful.

A group of 27 church leaders launched a judicial review at the Court of Session arguing the Scottish Government acted beyond their powers under emergency legislation.

Lord Braid agreed the regulations went further than was lawfully allowed. 

The Scottish Government said it would carefully consider the findings and its implications.

The ruling comes two days before communal worship is due to resume.

But Lord Braid said those who brought the judicial review were entitled to have the regulations declared unlawful.

He said the Scottish Government regulations disproportionately interfered with the freedom of religion secured in the European Convention on Human Rights.

He added: “It is impossible to measure the effect of those restrictions on those who hold religious beliefs.

“It goes beyond mere loss of companionship and an inability to attend a lunch club.”

Earlier this month, the QC who raised this judicial review made the point that communal worship is needed now more than ever.

The petitioners would say that faith is a matter of hope in life and in death and it’s more than mere obedience and that it is essential particularly at a time of national crisis.

Lord Braid has emphasised that his ruling has no bearing on whether or not communal worship is safe, but rather is a comment on the legality of the decision made by the Scottish Government.

I have not decided that all churches must immediately open or that it is safe for them to do so, or even that no restrictions at all are justified.

All I have decided is that the regulations which are challenged in this petition went further than they were lawfully able to do, in the circumstances which existed when they were made.

Worth reading in full.

Stop Press: Christian Concern has hailed this victory for Scottish church leaders, noting that the criminalisation of corporate worship must never happen again.

In an historic judgment, today a judge has ruled that the Scottish Ministers’ decision to ban and criminalise gathered church worship during the current lockdown was unconstitutional and a disproportionate interference of Article 9 ECHR rights.

The ruling is believed to be the first successful legal case against Covid regulations in the UK. 

Handing down judgment, Lord Braid also ruled that online worship is not real Christian worship, stating that it is not for the Scottish Ministers to: “Dictate to the petitioners or to the additional party, that, henceforth, or even for the duration of the pandemic, worship is to be conducted online. That might be an alternative to worship but it is not worship. At very best for the respondents, in modern parlance, it is worship-lite.”

Responding to the ruling, Rev. Dr William Philip, Senior Minister at the Tron Church in Glasgow, said: “We are very pleased that Lord Braid has recognised how essential gathered church worship is to our communities and to Scotland as a whole.

“From the outset we have recognised the serious decisions the Scottish Ministers had to take in response to the pandemic. However, its approach to banning and criminalising gathered church worship was clearly an over-reach and disproportionate and if this had gone unchallenged it would have set a very dangerous precedent.

“However well intentioned, criminalising corporate worship has been both damaging and dangerous for Scotland, and must never happen again.

Worth reading in full.