This has been one of the most significant years for human rights globally in living memory. The pandemic has brought inequalities into sharp focus and further entrenched them. It is against this backdrop that the government has spoken out increasingly against ‘activist lawyers’ and launched reviews of the Human Rights Act 1998 and other mechanisms for challenging state decisions. The role of human rights in holding the state to account has never been more crucial. The government must have proper regard for human rights in its continued response to the pandemic and the recovery from it in the years to come.
Recover Better – Stand Up for Human Rights
The theme of this year’s Human Rights Day is ‘Recover Better – Stand Up for Human Rights’. This calls for us to look back to the origins of modern human rights law and draw upon the principles of shared humanity and global solidarity in the response to Covid-19. Aside from being the year of the pandemic, 2020 marks the 70th anniversary of the European Convention on Human Rights (ECHR) as well as the 20th anniversary of the Human Rights Act 1998 (HRA) coming into force.
In a crisis, while trying to make ‘bigger picture’ decisions, the rights of the most vulnerable are often left by the wayside or completely removed by the state. In the aftermath of the atrocities of the Second World War, states came together and committed to cooperation on the basis of common values. Treaties and conventions were signed and multilateral organisations formed, including the United Nations and the Council of Europe, which was formed to protect human rights, the rule of law and promote democracy. Human Rights Day marks the adoption of the Universal Declaration on Human Rights in 1948 by the UN General Assembly, a milestone document which recognised the equal and inalienable rights of all members of the human race.
Prior to this, the UK already had a strong history of protecting the rights of individuals in the common law. Its lawyers were instrumental in drafting the ECHR, which is an international convention setting out a number of fundamental rights which are to be protected, including the rights to life, freedom from torture, liberty and expression. The ECHR has been signed by all 47 members of the Council of Europe including the UK. The rights set out in the ECHR became legally enforceable in domestic courts following the passing of the HRA 1998. As will be explored, the HRA has not been uncontroversial and has faced regular opposition and reviews since its passing.
What are human rights?
Human rights are the basic rights and freedoms that individuals are entitled to simply by virtue of being human beings, which are protected in law. The recognition of these rights in law enables them to be safeguarded. Human rights enable individuals to hold the state to account for breaches of their basic rights, redressing the power imbalance between the state and individuals. Respect for human rights and access to legal redress for breaches is fundamental in a fair and democratic society. Human rights therefore act not only as safeguards and redress mechanisms, but also tools for monitoring the actions of states.
The HRA puts a legal duty on public authorities to respect and protect human rights. This means that human rights must be at the forefront of their decisions, policies and provision of services. Individuals have the right under the HRA to challenge breaches by the state in the courts. Some human rights are ‘absolute’, meaning there are almost no circumstances in which the state can lawfully impinge upon them. Others are ‘qualified’ rights, which can be restricted where the state does this in a lawful, necessary and proportionate way. Approaching governance using a ‘human rights lens’ ensures that these rights are upheld even in the face of a crisis.
Human rights and Covid-19
The Covid-19 pandemic has resulted in government decisions which have engaged the human rights of the entire population. The government’s approach to the pandemic has raised a number of issues, suggesting that the human rights implications of decisions have been neglected. For most people, the lockdowns and restrictions will have resulted in the greatest restriction of their right to liberty (Article 5) that they have ever experienced. The ECHR provides for lawful exception to this right to prevent the spreading of infectious diseases.
Under Article 2 EHCR (the right to life), the government is under a positive duty to take steps to safeguard lives. Where there is a known risk to life, the state must take protective steps to preserve life. This means that where there are resource shortages, the government must allocate resources by prioritising the most vulnerable, for example pregnant or BAME healthcare workers. This is vital to ensure the state’s practices are also non-discriminatory (Article 14). There are reports that ‘Do not attempt cardiopulmonary resuscitation’ notices (DNACPRs), have been applied in a blanket manner to groups of people based on shared characteristics such as age or disability without the proper involvement of the patient or their families. This issue engages Articles 2 and 8 (right to private life) and has been strongly condemned as unlawful in the Joint Committee on Human Rights’ report on the government’s response to Covid-19 and human rights. Under Article 2, the state is also under a duty to carry out an effective investigation into alleged breaches of its duty to safeguard lives. It is likely that a number of inquests in the coming years will investigate potential Article 2 breaches arising out of the pandemic, including in relation to the excessive number of deaths in care homes.
The Coronavirus Act 2020 and numerous emergency Regulations have been passed quickly and with little parliamentary scrutiny. This has led to ambiguity in the government’s messaging and around newly created criminal offences. There has been confusion about the distinction between the law and guidance. This engages Article 7, under which public authorities must ensure that criminal offences are sufficiently clear so that individuals understand when they are breaking the law. Under the lockdown Regulations, Fixed Penalty Notices (FPNs) have been issued regularly. There is evidence to suggest that FPNs have been disproportionately issued to BAME people, who have been issued with them at a rate of 1.6 times higher than white people. Furthermore, following a review in May, the CPS found that all prosecutions under the Coronavirus Act 2020 had been incorrectly charged, demonstrating a lack of understanding of the new legislation on the part of enforcement officials.
The rights to protest peacefully and assemble (Articles 10 and 11) were restricted during the lockdowns. Although some protests were allowed, questions have been raised as to whether a consistent approach has been taken to preventing gatherings. For example, comparing the enforcement action taken against BLM protestors exercising their right to peaceful protest versus the members of the public breaching the social distancing rules on beaches or in conga lines during VE Day celebrations. Prisoners have faced multiple interferences with their rights, with lockdowns resulting in prisoners being held in their cells for 23 hours per day and prison visits completely stopped for months. Many families have been unable to visit their relatives in care homes, also potentially interfering with their Article 8 rights. As the pandemic continues and in the event of further lockdowns, state policy decisions must be lawful, necessary and proportionate – avoiding taking blanket approaches – to prevent further breaches.
Review of the Human Rights Act 1998
The HRA has been a regular topic of debate in the UK. There are concerns over parliamentary sovereignty and perceived judicial interference and participation in policy-making. The Conservative party has long had repealing the HRA in its sights. Its 2010 and 2015 manifestos pledged to scrap the HRA and replace it with a UK Bill of Rights. However, the party’s stance on this has somewhat softened in the face of Brexit negotiations with the EU. Reports have surfaced that the Prime Minister will compromise on the HRA issue in order to secure security ties with the EU. The tone of the Conservatives’ 2019 manifesto diverged somewhat from those of previous years, committing to updating the HRA rather than repealing or replacing it. This is part of a wider project to examine the UK’s constitution and democracy, which includes an Administrative Law review considering options for reforming Judicial Review.
On 7 December 2020, the Secretary of State for Justice announced that Sir Peter Gross will lead an independent review of the HRA, which will consider how the HRA framework is operating and whether it could be improved. The review has already been widely criticised by human rights lawyers and civil society organisations, with concerns voiced that the review will not actually look at the effectiveness of the HRA at protecting people’s rights.
The human rights safety net must be maintained
The government must not use the pandemic as an opportunity to weaken the current human rights safeguards protecting the most vulnerable. This safety net is vital in protecting the public’s lives and other freedoms in times of crisis. The state must take on board the lessons already learnt this year. Its continued response to the pandemic and the recovery from it must be evidence-based, non-discriminatory and compliant with human rights law.