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The COVID-19 pandemic has presented many issues for courts, often requiring immediate consideration and swift delivery of reasons Nevertheless, experience has taught us that, in times of crisis, heightened vigilance must be afforded to the protection of individual rights Two judgments delivered at the peak of the pandemic illuminate the fragility of rights in the face of wider societal concerns Both cases contain statements of purported principle which are legally dubious and, if left unqualified, have the potential to fundamentally dilute the protections afforded by the European Convention on Human Rights © 2020 Thomson Reuters and Contributors

COVID-19 is a highly contagious infection with no proven treatment. Approximately 2.5% of patients need mechanical ventilation while their body fights the infection.1 Once COVID-19 patients reach the point of critical illness where ventilation is necessary, they tend to deteriorate quickly. During the pandemic, patients with other conditions may also present at the hospital needing emergency ventilation. But ventilation of a COVID-19 patient can last for 2–3 weeks. Accordingly, if all ventilators are in use, there will not be time for patients to ‘queue up’ to wait for those who arrived earlier to recover. Those who need a ventilator will die if they do not receive access to one quickly. Many nations now face the prospect that they failed to prepare appropriately for this foreseen risk of pandemic (another issue worthy of legal analysis) and that their populations will need far more ventilators than the health service can supply. For many weeks, the UK has been anticipating a surge of COVID-19 infections that could leave patients queuing in hospitals for ICU care. Luckily, social distancing has ‘flattened the curve’ and this problem might not arise. There is still a degree of risk, however, and other countries will not be so lucky. At some point, during this pandemic or the next, all countries will need to answer hard questions about whether and when scarce ICU resources (such as ventilators, beds and staff) should be either withheld or withdrawn from certain groups of patients solely for the purpose of providing them to others. Attempts to answer these questions can be found in a wide range of ICU triage protocols and ethical guidance documents, many of which embrace the foundational principle of ‘save the most lives’. Unfortunately, this worthwhile goal has generated many suggestions that could violate the law. This article identifies …

At some point during this pandemic or next, all countries will need to answer hard questions about whether and when scarce ICU resources (such as ventilators, beds and staff) should be either withheld or withdrawn from certain groups of patients solely for the purpose of providing them to others. Attempts to answer these hard questions can be found in ICU triage protocols and ethical guidance documents, many of which embrace the foundational principle of ‘save the most lives’. Unfortunately, this worthwhile goal has generated many suggestions that could violate the law. This article identifies 10 ways in which the withholding or withdrawal of a clinically indicated ventilator might violate a patient’s rights, along with recommendations on how to avoid doing so. While our analysis is based on UK law, its lessons are relevant for other countries with similar legal systems. If the issues we identify are not addressed, doctors may act unlawfully. Worse, patients may die unlawfully.

Private organizations are deeply entrenched in fulfi lling the responsibilities of government through the provision of public services. In this context, we must question the conceptual coherence of drawing sharp distinctions between public and private functions. In YL v Birmingham City Council, however, the House of Lords had to determine which of the various functions contracted out by public authorities retain their public character for the purposes of the United Kingdom’s Human Rights Act 1998. This article analyzes the complex public/private division set up by the Human Rights Act and argues that the decision of the House of Lords has led to a gap in human rights protection and has weakened public accountability. Public functions and services traditionally carried out by public entities have been transferred increasingly to the private sector. 1 In the United Kingdom, policies such as privatization, outsourcing, and public/private projects under the Private Finance Initiative 2 have altered dramatically the way in which public services are delivered. Although these policies cover a variety of activities and varying arrangements, they typically share three features: the transfer of public functions, with the associated delivery risk, to private entities; the use of market-style competition to select the supplier; and a shift in the measurement of performance — from a concern with process to the achievements of outputs. “ Internal markets ” have been introduced into the provision of such fundamental public services as health and education, organized around a separation between “ purchasers ” and “ providers ” and governed by sophisticated commercial contracts. 3 Prisons and immigration centers are managed by

only against public authorities.2 The issue of whether a body is a public authority has proved highly controversial. The hiving-off of many traditional governmental functions through policies such as privatisation, outsourcing and projects under the Private Finanace Initiative (PFI) has led to a blurring of the traditionally understood publicprivate distinction.3 The changed nature in the way that public services are delivered has led to sharply divergent views among the judiciary about which functions are those of a public nature for the purposes of the Human Rights Act. This is evident in the YL judgment itself: a split decision, with two dissenting judgements.4 The division in the House reflects different understandings of the operation of the Human Rights Act, the public-private distinction and, perhaps more fundamentally, competing ideological stances. The decision also suggests that the ghost of Dicey still haunts the development of public law in our legal tradition. Dicey's premise that the Rule of Law admits of no separation between public and private law and that all people were subject to the ordinary laws of the realm inhibited the development of public law.5 The first inkling of change occurred during the 1960's.6 Influenced no doubt by EC and human rights law, gradually the judiciary began to establish substantive public law rules and principles. It is ironic that just as public law became more established and effective in the control of government power, the state began to shrink and the pattern of government to change. The transformation of the delivery of public services poses a serious threat to public law values, to ensuring public accountability and to the

THE right not to be subjected to torture or to inhuman or degrading treatment or punishment is guaranteed in absolute terms in Article 3 of the ECHR. This article imposes on a State both a negative and a positive obligation. In recent months, the House of Lords has considered cases raising both obligations pursuant to Article 3. This paper will examine first the nature of Article 3 and these obligations, second the jurisprudence of the European Court of Human Rights on the issue of State responsibility, and finally the recent decisions of the House of Lords in R. (on the application of Adam, Limbuela and Tesema) v. Secretary of State for the Home Department

The Labour government has quickly acted on its election promise to introduce a bill of rights into domestic law. The Human Rights Act 1998 partially incorporates the European Convention on Human Rights (ECHR) into United Kingdom law. This legislation is part of a wider constitutional package including devolved government for Scotland and Wales and reform of the House of Lords. The government’s programme is intended to modernise and indeed transform the British constitutional structure. According to the government, the Human Rights Act will bring rights home. Individuals will be able to argue for their Convention rights in the United Kingdom’s own courts and tribunals and judges will be able to adjudicate directly on Convention issues. All new laws will be carefully scrutinised to ensure compatibility with Convention rights.