Dr Stevie Martin (LML Member) has written a blog post for EJIL:Talk (the blog of the European Journal of International Law) about derogation from the ECHR in light of COVID-19.
A Domestic Court’s Attempt to Derogate from the ECHR on behalf of the United Kingdom: the implications of Covid-19 on judicial decision-making in the United Kingdom discusses the recent case of BP v Surrey County Council & Anor [2020] EWCOP 17 (25 March 2020)
In this case, the daughter of an 83-year-old care home resident (referred to as BP) sought several declarations as part of an application to have her father released home to stay with her, for the duration of the COVID-19 pandemic. The application arose because of the Prime Minister’s statement on 23 March 2020 that people should remain at home where possible. The care home subsequently ceased all visitations in accordance with that statement and, it was argued that keeping BP at the care home without any visitations was contrary to his best interests.
A particular point of focus was the declaration sought on BP’s behalf that the total ban on visits would be a disproportionate interference with his rights under Articles 5 and 8 ECHR. In resolving this question of proportionate interference, it appears that the trial judge (sitting in the England and Wales Court of Protection) determined that Article 5 of the ECHR should be derogated from per Article 15, and the Council of Europe notified accordingly.
Dr Martin’s blog post criticises this outcome, and questions whether the ‘notification’ of the Council of Europe would constitute an “official and public notice of derogation”.
The full post is available here.