The Future Lawyer Weekly Update – w/c 29th March

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Vaccine Passports

The Legalities of Vaccine Passports

Reported by Eleanor Aindow

The prospect of the introduction of vaccine passports has started to infiltrate the news in recent weeks as many eagerly anticipate the return to ‘normal’. A vaccine passport is a physical or digital document certifying that a person has been vaccinated against the coronavirus, recently received a negative test or has antibodies, and is therefore less likely either to experience severe symptoms or to spread the virus to others.

At the beginning of the month, the EU announced their plan to introduce a vaccination passport, or ‘Digital Green Pass’, for its citizens. While this has not been accepted by all of the EU’s member states, numerous countries outside the EU such as Israel, China and Bahrain have already issued certifications of vaccination from the coronavirus.

Vaccine passports have been introduced primarily to allow international travel to resume and to revive tourism. This suits countries whose economies rely heavily on tourism, such as Greece and Cyprus. However, discussions as to whether vaccine passports would also be required for work purposes and for entry into public spaces such as restaurants, sports events and concerts have caused controversy, raising fears that vaccine passports could be used to discriminate unfairly and therefore increase social stigmas against those who are not vaccinated, especially in the workplace.

There are numerous ethical and legal concerns relating to the introduction of vaccine passports; in February, Boris Johnson acknowledged these complex issues. However, despite previously ruling out a vaccine passport scheme led by the government, Johnson recently suggested that it may be possible for landlords of individual pubs and nightclubs to require customers to show such passports upon entry.

A key ethical concern is the question of who would be excluded if such passports were introduced. Those who are vaccinated would be able to travel and enjoy full freedom of movement, while those unvaccinated would remain under restrictions. Some people cannot take the vaccine for medical reasons, such as those with allergies or pregnant women, and some ethnic minorities are more hesitant to be vaccinated.

This is also the cause of the main legal argument against the introduction of vaccine passports, which is discrimination. Under the Equality Act 2010, any rule which impacts disproportionately on people with a protected characteristic such as age, pregnancy or race is prohibited. Vaccine passports would inevitably discriminate, albeit indirectly, against three main groups of people on the basis of these outlined characteristics: pregnant women who are encouraged not to take the vaccine on medical grounds, young people who are likely to be last to be vaccinated, and those within the BAME community who are statistically more reluctant to take the vaccine.

A strong argument in favour of vaccine passports is the fact that international law already regulates vaccination certificates. Countries are legally allowed to require proof of vaccination for diseases such as yellow fever or polio on entry. However, extending this regulation to the coronavirus is more complex.

As wealthier nations have bought most of the available stock of vaccines, it could take years for people in poorer countries to be vaccinated because of where they live and their access to healthcare. Reports have indicated that most adults in advanced economies are set to be vaccinated by the end of 2021, whereas the timeline extends as far as 2024 for some low-income countries. This will inevitably increase the divide between the rich and poor even further.

Legal data protection and privacy requirements must also be considered. Vaccine passports contain sensitive personal information and there are valid concerns that the use of digital vaccine passports could be used by authorities to track the movement of citizens, especially if they are used not only for international travel but also for entry into public spaces. Health data is deemed very sensitive, meaning storage of such data must have enough built-in security to ensure the highest level of data protection, regulated by the GDPR.

Despite ethical and legal issues, the main argument for vaccine passports is a compelling one. Vaccine passports are tools that could help to facilitate the return to ‘normal’ life by enabling international travel and allowing access to crowded events such as festivals and sporting events. A YouGov poll has suggested that most Brits think that vaccine passports should be introduced for entry into gyms, cinemas and pubs. However, most of the younger generation are against the introduction of such a regulation owing to the fact that they will be last to receive the vaccine. Ultimately, 80% of those surveyed were in favour of a vaccination scheme once everyone has been offered the vaccine.

While proponents for vaccine passports believe that public health should take precedence over legal and ethical challenges, there are undeniably important legal considerations that must be made regarding vaccine passports. This makes vaccine passports a highly contentious matter, with high stakes for the governments which choose to introduce them.

You can find more here or here.

Case Law

Bell v Tavistock: An Analysis and its Possible Future Implications

Reported by Kristel Haxhia

This case of a controversial nature concerns the claim for judicial review regarding the administration of puberty blocking drugs prescribed to under 18-year-olds who are experiencing gender dysphoria. Quincy Bell and Mrs A, the mother of a 15-year-old daughter with autism and gender dysphoria, claimed for a judicial review of the practice of Tavistock and Portman NHS Foundation Trust, through its Gender Identity Development Service.

Therefore, Keira was given puberty blocking drugs at age 16, which suppress and block puberty. After that, the next step is to receive cross-sex hormones i.e., testosterone for females and estrogen for males, the vast majority of people who undergo puberty blockers (PBs) proceed to taking cross-sex hormones. Keira was given testosterone at age 17 and had a double mastectomy at 20, which left her with a deep voice, beard and body hair, and her sexual function being affected. She is now transitioning back to becoming a woman, however this will present medical hurdles as well as legal ones, as she is legally a man. Keira states that she was not challenged enough by Tavistock about her decision to transition to a man and that she did not undergo a proper psychiatric assessment prior to being prescribed PB, which Tavistock Centre’s representatives deny. Her lawyers argued that 16-year-olds are too young to be able to consent to such treatment, as they are unlikely to understand the full extent of what this treatment might mean for them: “Long-term medical, psychological and emotional implications of taking puberty blockers and cross-sex hormones”.

The landmark ruling is that children under the age of 16, who want to change sex, can only agree to use puberty blocking drugs, if they can understand the nature of the treatment.
However, this ruling makes it harder for children to receive puberty blocking drugs. Keira Bell was delighted by the verdict and she stated that it would provide more protection for adolescents with gender dysphoria, adding that the verdict is no political but tens to protect vulnerable children.
Like Keira, there are many people who have regretted undergoing the path of gender reassignment, but on a wider scale it is estimated that they may make up 2% of those who undergo gender reassignment, while some believe it is even less than 2%.

The judges said in their ruling that 13-year-olds and children who were younger would be highly unlikely to be competent to give their consent to PBs, Dame Victoria Sharpe, who delivered the ruling, stated that it is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of PBs. She added, “In respect of young person 16 and over, the legal position is that here is a presumption that they have the ability to consent to medical treatment but given the long-term consequences of the clinical interventions at issue in this case and given that the treatment is as innovative and experimental, we recognise that clinicians may well regard these as cases where authorisation of the court should be sought prior to commencing the clinical treatment”.
Of course, this heavily criticised by the affected parties of the general public and others since PBs have been used for over 3 decades, since the late 1980s instigated by the Dutch, which has been since then routinely used to treat gender dysphoria and halt puberty for many years. Therefore, they are not exactly seen as “innovative and experimental”, furthermore mentioning the numerous studies that show how efficient and just how much it helps young people to live their lives, quite often deemed as “life-saving treatment” and rightly done so. The Dutch study argued that adolescents who show established Gender Dysphoria rarely identify as their biological sex.
It was stated that there are two reasons for this: first, that the diagnosis of Persistent Gender Dysphoria was correct, or another one was that the fact that somebody had a diagnosis and a course of treatment, this affirmed the diagnosis – that is, both Gender Affirmative Psychotherapy and the use of Puberty Blockers, and this solidified the feeling of Cross-Gender Identification and led young people to commit to Sex Reassignment Surgery more strongly that they would have done if there had been a different diagnosis and treatment. In the introduction and background to the Court case, Gender Dysphoria was explained as a condition where people experience distress because of mismatch between their perceived identity and the sex they were born with, and that people with this condition wish to live according to their perceived identity and not the sex that they were born with. People with Gender Dysphoria could be referred to the Gender Identity Development Service and may receive Gonadotrophin Releasing Hormone Agonists, which are hormone or Puberty Blocking Drugs. It was stated that puberty blocking drugs had been prescribed for children as young as 10, and the children who received these drugs had to give their informed consent.

The issue at the heart of the case was whether children and young people can give truly informed consent to Puberty Blocking Drugs. Keira Bell claimed that the information given to those under 18 by the Gender Identity Development Service (GIDS) was misleading and insufficient to ensure that children and young people are able to give informed consent. She went further to state the inadequacy of the information given and the absence of procedural safeguards led to an infringement of the rights to children and young people under Article 8 of the European Convention of Human Rights. What the Court was going to consider first was whether a young person between the age of 16 and 18, or a child, are able to give informed consent to receiving Puberty Blocking Drugs, and then if their decision was that they are able to give consent, achieving informed consent. The court state that their remit was not to discuss or make a judgement about whether puberty blocking drugs were good or bad, or their long-term positive, or adverse effects for a child or young person, but to make a judgement about whether a child or young person is competent to give consent to treatment in law, and the process by which the consent to treatment is obtained. There are 3 stages of the physical intervention that can be carried out for children and young people with gender dysphoria; first is the puberty blocking drugs, then the administration of cross-sex hormones, and finally the gender reassignment surgery, which is only available in adult services.

The Court went on to state that a 7 year-old with Precocious Puberty would not be able to consent to PBs, but that his or her parents must give consent because of the young age of the child and the intended nature of the treatment. Secondly, it was stated that efforts should be made to allow the child or young person to become Gillick Competent; where it was determined that children under 16 can consent if they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment, where possible, and that clinicians should work with the individual to help them understand the treatment proposed and its potential implications, in order to help them achieve competence. Thirdly, it was stated that not every individual under the age of 16 will be able to become Gillick Competent in relation to the treatment proposed. Fourthly, the Court stated that in order to achieve Gillick Competence, it is important not to set the bar too high, and they stated that the claimants’ approach for the bar being very high for competence and capacity was contrary both to Common Law and to a child’s Article 8 Rights, and the importance of supporting individual autonomy. The overall decision of the Court was that children are not able to give informed consent to receiving PBs.

In their evidence GIDS was very clear about parental consent, ‘GIDS has never administered, nor can it conceive of any situation where it would be appropriate to administer blockers on a patient without their consent.
What does this mean? In standard medical practice, if a treatment is needed and the doctor is concerned that the child is unable to show enough understanding to give their own consent, the parents can consent on behalf of the best interests of the child. GIDS, however, were unable to use this argument that if the child is young and there is too much to take in, we can rely on the parent, because there had never been a situation where they had done this.

The trust obtained permission to appeal the High Court’s decision. Meanwhile after the ruling, the NHS is immediately suspended the introduction of PB for children under the age of 16 and modified its policy regarding GIDS, so that the children under the age of 16 cannot currently be granted PB, unless a “best interests” order is brought by the court. The NHS also announced that they will be performing a full clinical evaluation of each child under the age of 16 who has participated in PBs due to referrals from GIDS. If after a clinical evaluation continued treatment is considered in the child child’s “best interests” the application for “best interests” will be filed with the court otherwise the treatment must be withdrawn again. For children 16 and 17 years old, the NHS announces that there is no need to file a court application to prescribe PBs as long as they have mental capacity, the primary clinician considers the treatment in their best interests and there is no parental dispute about the intervention. Clinical review will be done for 16 and 17-year-olds who are currently being prescribed PBs but only need to file “best of interests” with the court when there is any doubt about their interests.
The change in approach will have a noticeable impact on children under the age of 16 who receive PC and those who hope to receive such treatment. Those currently using PB will have to obtain a court order to continue treatment, and some may have their treatment withdrawn.
For those who want to access PBs the new process is more complex and longer and maybe less likely to be seen as competent. 16 and 17-year-olds are less likely to be affected but the risk remains that the Court’s involvement will be required if there is any doubt as to whether PB’s are in the individual’s best interest.

Find out more here or here.

Sex crimes in Scotland

Review recommends for specialist Scottish sex crime court

Reported by Katie Henderson 

This article is a follow-up to an article published a fortnight ago and linked here.

The review and its results could ‘transform the country’s response to sexual crime’ as per campaigners. The proposals include the right to lifelong anonymity to be enshrined in Scots’ law; this is already a protected right in England and Wales.
They recommend complainers have access to independent legal representation (publicly funded) to oppose applications asking questions about their previous sexual history. Calls for review come after reports that victims are ‘re-traumatised’ by the justice system. The group, chaired by Scotland’s judge Lady Dorrian, took evidence from judges, court services, police, lawyers and victims organisations. She commented that the issues with how cases are managed in the justice system has been going on for “many, many years’.”We feel that to simply carry-on doing things the way that we have always been doing them isn’t necessarily the best way forward”.

Among the most important of the recommendations, is for a specialist court hearing serious sexual offences. The cases would not require a jury and could be heard by a single judge. This would have the benefit of more trauma-informed procedures and lawyers accredited in dealing with vulnerable witnesses. There would also be a presumption that the complainer’s evidence would be pre-recorded to limit the amount of trauma they are exposed to. It is suggested this recording could be taken at initial meetings with police. The results of the review aim to encourage more rape victims to come forward and report, in the knowledge that the court procedure will be as comfortable for them as possible.

An estimated 16% of females aged 16 to 59 surveyed in the year to March 2020, who had been victims of sexual assault by rape or penetration since the age of 16, had reported it to the police, the Office for National Statistics said. The problem is one which is widespread; fewer than one in six female victims of sexual assault in England and Wales reported it to the police. These figures show a real gap in protection for those who have suffered the most serious of crimes; and are telling of the reluctance to pursue criminal proceedings. If the proposals are taken forward, they have the potential to fundamentally change the way sexual offences are prosecuted in Scotland.

You can find more here or here.

Asda loses equal pay appeal

Asda Stores Ltd (Appellant) v Brierley and others (Respondents) [2021] UKSC 10

Reported by Jasmine Cracknell

Last week, the Supreme Court handed down its decision in the long-running and highly anticipated Asda equal pay case.
Agreeing with the earlier Court of Appeal ruling from 2019, the Supreme Court found in favour of the 44,000 Asda workers who have joined the claim, holding that the roles of a shop floor worker and a distribution centre worker are comparable.
The issue before the Court was whether lower-paid shop floor workers (who are mostly female) could compare their role with that of higher-paid distribution centre workers (who are mostly male). Our briefing from 20 July 2020 reports on the background to the case. You can view the briefing here.

While the Supreme Court’s decision is a victory for the many female workers who have joined the fight for equal pay, the Court’s ruling does not mean that the women are entitled to equal pay yet. Whether the roles are comparable is only the first stage of the equal pay claim, with the second stage currently being considered by Manchester Employment Tribunal.
The second stage involves proving that the role of shop floor workers is of equal value to the role of distribution centre workers. The Equality Act 2010 says that even if work is not alike or equivalent, it can be equal if the level of skill, training, responsibility or demands of the working conditions are of equal value.

If the roles are considered to be of equal value, the claim will progress to a third stage in which the workers will have to prove that gender discrimination was the reason for any difference in pay. Asda would need to argue that there is a reason, other than sex discrimination, as to why shop floor workers and distribution centre workers should not be paid equally.

As stages two and three are still yet to be decided, it is thought that the case could drag on for some time, especially if Asda appeals the Tribunal’s second stage decision, should it find in favour of the workers.
The Asda workers are being represented by law firm Leigh Day, which is also representing employees from the other big supermarkets, namely Tesco, Morrisons and Sainsbury’s, in bringing equal pay claims against their employers.
GMB Union’s Legal Director Susan Harris is now calling on Asda to “sit down with us to reach agreement on the back pay owed to our members – which could run to hundreds of millions of pounds.”
However an Asda spokesperson has said: “This ruling relates to one stage of a complex case that is likely to take several years to reach a conclusion”.

“We are defending these claims because the pay in our stores and distribution centres is the same for colleagues doing the same jobs regardless of their gender. Retail and distribution are very different sectors with their own distinct skill sets and pay rates.”
Leigh Day says that if the claims are ultimately successful, the average Asda worker could be entitled to more than £10,000 in backpay.

Find out more here or here.

Insurance implications

Suez Canal Blockage

Reported by Jutha Cheewat

Following the recent blockage incident, the Evergreen container ship that lost the ability to steer against a dust storm in the middle of the Suez Canal has been freed.
Due to its large size, the ship had covered the entire width of the crucial trade route, with the estimate of 40 billion dollars of trade disruption – as roughly 12% of global trade being carried through the canal.

According to Reuter, the Suez Canal Authority (SCA) had released a statement containing information of how the incident has had a far-reaching effect, threatening to disrupt global shipments.

The ship’s owner, Shoei Kisen KK and its insurers are to face millions of dollars in payouts. It is clear that claims are going to flood in as many have been impacted, not only the ship and the goods on it but also the shipping industry, retail and commodities business.
Russell MD Suki Basi expanded that impact on the retail sector was apparent as the Evergreen contained clothing goods with an estimate value of 4 million dollars.

In addiiton, roughly 50 vessels pass through the canal a day. Among these includes commodities such as liquified natural gas from the Middle East to Europe. The delay also affected the technology and automotive delivery. All these companies mentioned have had their goods insured.
The incident made it clear how global trade has become so dependent on what they called “mega-ships” and that these types of claims can take a long time to settle, especially amid the global pandemic, observed the analysts.

You can find more here or here.