"The Safe Return of International Travel"
"19. The overarching principle is for a clear and evidence-based approach to facilitate the safe, sustainable and robust return of international travel while managing the risks from imported cases and Variants of Concern. The health risk posed by arrivals from different countries varies considerably and is likely to change over time as infection rates fluctuate, Variants of Concern are identified, and vaccine programmes are rolled out, so the principles of a risk– based approach has received consistent support throughout the GTT's engagement across government, and with the transport industry, academics, and trade unions. … 22. To respond to the new context, we will launch a new approach for England from 17 May at the earliest, for all countries, to which different restrictions are applied depending on risk. This risk will likely be based on factors such as the level of community transmission of Variants of Concern, levels of testing, genomic sequencing and reporting. This will allow the UK government the flexibility to adapt to the evolving health situation around the world while keeping borders open. Red countries: High-risk countries (currently known as "red list") Amber countries: Moderate-risk countries. Green countries: Low-risk countries. 23. The allocation of countries will be kept under review and respond to emerging evidence, with a particular focus on Variants of Concern. The Joint Biosecurity Centre will publish data and analysis to support the process of allocating countries. Allocations will inevitably change …"
"The Joint Biosecurity Centre (JBC), part of the UK Health Security Agency, in partnership with devolved administrations, has developed a dynamic risk assessment methodology to inform ministerial decisions on red, amber and green list countries and territories, and the associated border measures. This methodology has been endorsed by the JBC technical board (4 UK Chief Medical Officers and their relevant specialists, such as Chief Scientific Advisers). JBC reviews over 250 countries and territories. As a precautionary approach, countries and territories are assumed to be amber unless there is specific evidence to suggest they are: green – presenting (with confidence) a low public health risk to the UK from all COVID-19 strains red – presenting a high public health risk to the UK from known variants of concern (VOC), known high-risk variants under investigation (VUI) or as a result of very high in-country or territory prevalence of COVID-19."
"The first update to the government's traffic light list for international travel has taken place today (Thursday3 June 2021 ), with Portugal moved to the amber list to safeguard public health against variants of concern and protect our vaccine roll out. Seven countries – including Sri Lanka and Egypt – have also been added to the red list. All changes to the list will come into effect at 4am on Tuesday 8 June. The decision to move Portugal (including Madeira and the Azores) to the amber list follows increased concern in the spread of variants of coronavirus, including a mutation of the Delta variant, and the risk that is posed of bringing these back to the UK if people are not required to quarantine. The situation in Portugal has required swift action to protect the gains made with the vaccine roll out – there has been an almost doubling in the COVID-19 test positivity rate in Portugal since the first review for traffic light allocations, far exceeding the ONS estimated national positivity rate in the UK. More significantly, according to data published on GISAID … 68 cases of the Delta variant of concern have been identified in Portugal, including cases of the Delta variant with an additional, potentially detrimental, mutation."
"15. … The obligation under reg. 24 is to review " the need for the requirements imposed by these Regulations"
"58. I wholly agree with Sedley LJ's reason for concluding that a duty to consult did not arise in this case, namely the non-specific nature of the alleged duty and the lack of clear principle by which to define it. For my part, however, I would not so readily reject one of the alternative submissions made by Ms Laing on behalf of the Home Secretary. Whilst I do agree with Sedley LJ that the Rules are susceptible to judicial review on grounds such as ultra vires or irrationality, I doubt that, as a matter of principle, a duty to consult can generally be superimposed on a statutory rule-making procedure which requires the intended rules to be laid before Parliament and subjected to the negative resolution procedure. I tend to the view that, in these circumstances, primary legislation has prescribed a well-worn, albeit often criticised, procedure and I attach some significance to the fact that it has not provided an express duty of prior consultation, as it has on many other occasions. The negative resolution procedure enables interested parties to press their case through Parliament, although I acknowledge that their prospects of success are historically and realistically low. They also retain the possibility of challenge by way of judicial review on the sorts of substantive ground to which I have referred. For these additional reasons I would be minded to reject the appeal to procedural fairness as the basis of a legal duty of consultation. I do not feel driven to this conclusion by authority. Indeed, I share Sedley LJ's view that the Nottinghamshire case (above, paras 29 and 30) and Bates v Lord Hailsham (above, para 32) are not or are no longer directly in point. However, as a matter of principle, I consider that where Parliament has conferred a rule-making power on a Minister of the Crown, without including an express duty to consult, but subject to a Parliamentary control mechanism such as the negative resolution procedure, it is not generally for the courts to superimpose additional procedural safeguards. In one sense, this view gains support from the reasoning by reference to which Sedley LJ would dismiss the appeal. The lack of specificity and the absence of a clear principle of limitation which exist in the present case would, in my view, be present in most cases in which an unexpressed duty to consult might be postulated."
"44. Where the courts have declined to review the procedural fairness of statutory orders on the ground that they have been subject to Parliamentary scrutiny, they have not generally done so on the ground that Parliamentary scrutiny excludes the duty of fairness in general or the duty of prior consultation in particular. These decisions have generally been justified by reference to three closely related concepts which for my part I would not wish to challenge or undermine in any way. First, when a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament's review. This applies with special force to legislative instruments founded on considerations of general policy. Second, there is a very significant difference between statutory instruments which alter or supplement the operation of the Act generally, and those which are targeted at particular persons. The courts originally developed the implied duty to consult those affected by the exercise of statutory powers and receive their representations as a tool for limiting the arbitrary exercise of statutory powers for oppressive objects, normally involving the invasion of the property or personal rights of identifiable persons. Cooper v Board of Works for the Wandsworth District … was a case of this kind, and when Willes J (at 190) described the duty to give the subject an opportunity to be heard as a rule of "universal application", he was clearly thinking of this kind of case. Otherwise, the proposition would be far too wide. While the principle is not necessarily confined to such cases, they remain the core of it. By comparison, the courts have been reluctant to impose a duty of fairness or consultation on general legislative orders which impact on the population at large or substantial parts of it, in the absence of a legitimate expectation, generally based on a promise or established practice. Third, a court may conclude in the case of some statutory powers that Parliamentary review was enough to satisfy the requirement of fairness, or that in the circumstances Parliament must have intended that it should be. It is particularly likely to take this view where the measure impugned is a general legislative measure. The reason is that when we speak of a duty of fairness, we are speaking not of the substantive fairness of the measure itself but of the fairness of the procedure by which it was adopted. Parliamentary scrutiny of general legislative measures made by ministers under statutory powers will often be enough to satisfy any requirement of procedural fairness. The same does not necessarily apply to targeted measures against individuals."
"The methodology consists of 4 parts: • variant assessment • triage • risk assessment • outcomes that inform ministerial decisions Variant assessment Regular monitoring and evaluation of new variants is undertaken by PHE to identify those which may be of concern (VOCs and VUIs) to the UK. This assessment considers several factors including: • transmissibility • severity of disease • escape from natural immunity • escape from vaccine-induced immunity • effect on therapeutics • zoonotic emergence (jumped from animal to human) • current epidemiology … Triage Selects a list of countries and territories for further risk assessment ("deep dives"). This stage considers a range of indicators, including: • testing rates per 100,000 population • weekly incidence rates per 100,000 population • test positivity • evidence of VOC/VUI cases in country and territory exported cases VOC/VUI to the UK and elsewhere • genomic sequencing capability • strong travel links with countries and territories known to have community transmission of a VOC/VUI Further risk assessment All countries and territories that pass triage for green or red indicators undergo a more comprehensive risk assessment using additional quantitative and qualitative information (for example, from publicly available platforms such as GISAID and the World Health Organization, host government websites, UK mandatory testing data and travel data), taking into account data availability, limitations and biases. Outcome Available and relevant sources of information for each country or territory are used to provide an overall assessment on: • genomic surveillance capability • COVID-19 transmission risk •VOC/VUI transmission risk Travel connections with the UK and details of the in-country and territory vaccination profile are included as contextual information. Decisions on red, amber or green list assignment and associated borders measures are taken by ministers. Ministers will take the JBC risk assessments into account alongside wider public health factors to inform watchlists and make their decisions. … This methodology will evolve to reflect the changing pattern of the COVID-19 epidemic and as the JBC incorporates new scientific insights, new data sources, and new analyses that become available. The methodology is subject to quarterly review (as a minimum) by the JBC technical board."
"… Mr Beloff QC rightly accepts as correct three propositions in relation to a policy. First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations."
"The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements."
"… the manner in which the relevant policy and decision was taken was so opaque and confused that it violated the principles of " transparency " and " good administration "
"28. Legitimate expectation of either kind may (not must) arise in circumstances where a public decision-maker changes, or proposes to change, an existing policy or practice. The doctrine will apply in circumstances where the change or proposed change of policy or practice is held to be unfair or an abuse of power … The court is generally the first, not the last, judge of what is unfair or abusive; its role is not confined to a backstop review of the primary decision-maker's stance or perception … Unfairness and abuse of power march together … But these are ills expressed in very general terms; and it is notorious (and obvious) that the ascertainment of what is or is not fair depends on the circumstances of the case. The excoriation of these vices no doubt shows that the law's heart is in the right place, but it provides little guidance for the resolution of specific instances."
"51. To all this there are no doubt refinements and qualifications, and there may be other cases. And major questions can arise as to the circumstances in which the public interest will, in the court's view, allow the change of policy despite its unfair effects. This was the subject of some observations of mine in Ex p Nadarajah … I would only draw from Nadarajah the idea that the underlying principle of good administration which requires public bodies to deal straightforwardly and consistently with the public, and by that token commends the doctrine of legitimate expectation, should be treated as a legal standard … Any departure from it must therefore be justified by reference among other things to the requirement of proportionality (see Ex p Nadarajah , paragraph 68)."
"… I'm glad to be standing here today … announcing the first, albeit tentative, steps towards unlocking international travel. … Nobody wants to go back into lockdown. Not Ever! That is why today's announcement, removing the internal "stay in the UK" restriction from the 17 May (2021) is necessarily cautious. … That is why are Global Travel Taskforce has come up with a traffic light system classifying destinations by risk … This is based on data by the Joint Biosecurity Centre which will be published on gov.uk. … So, I am announcing today that from May 17, you will be able to travel to 12 green list countries and territories including Portugal, Gibraltar and Israel. I regret that favourite summer destinations like France, Spain and Greece are not yet included. But, every three weeks from reopening we will review countries to see if we can expand the green list. So this is just a first step …"
"Is it realistic to think that this year we will see the return of mass travel to Spain, to France and other really popular destinations as opposed to this tiny list of many islands?"
"… So, to answer your last question about whether we'll see mass travel or not, look I think we shall gradually see an opening up … So it's a gentle, gradual thing as I mentioned before, Heathrow and others are welcoming the steps today … [Dr Harries' contribution] … This year it's about not just about the prevalence of cases; it's about the variants of concern; it's about the ability of the country to test the quality of their data; how good their genome sequencing is and I think reassuringly, Paul, all of that is going to be published this year, both the methodology and the data, so people can see themselves why the particular countries and territories that are being included at the moment are in there and I think that will be helpful for everyone."
"42. … The term "possessions" in A1P1 is an autonomous Convention concept … Moreover, as we have seen, the issue of whether (i) goodwill and (ii) future profits amount to possessions has been the subject of a considerable amount of Strasbourg and domestic case-law. … 43. The well-established distinction between goodwill and future income is fundamental to the Strasbourg jurisprudence. The consistent line taken by the ECtHR is that the goodwill of a business, at any rate if it has a marketable value, may count as a possession within the meaning of A1P1, but the right to a future income stream does not. I agree with Rix LJ that the distinction is not always easy to apply and it seems that the ECtHR has not addressed the difficulties. As Moses LJ put it in Malik at para 83, marketable goodwill is a possession "notwithstanding that its present-day value reflects a capacity to earn profits in the future"