1.In response to the covid-19 pandemic, the Government has introduced restrictions on people’s daily lives to prevent the spread of the disease, limit loss of life, and to ensure the National Health Service is not overwhelmed. Covid-19 has caused devastating loss of life, and dramatically impacted the quality of life of many of those who get seriously ill. Since March 2020, around 130,000 people have died in the UK within 28 days of testing positive for covid-19. Many others have had routine, and even urgent care for other issues cancelled for reasons related to the public health situation and the response to covid-19.
2.The Government has a positive duty to safeguard the lives of those within its jurisdiction under Article 2 of the European Convention on Human Rights (ECHR). In some cases, this may require interferences with other ECHR rights. As we noted in our September 2020 report on human rights and the Government response to covid-19, in order to ensure compliance with human rights law, it is crucial that the Government can justify the proportionality and necessity of interferences with other human rights through the measures taken to control the pandemic. Moreover, enforcement of the law must be proportionate, and comply with rights under the ECHR.
3.Fixed penalty notices (FPNs) are an enforcement tool, which allow people to pay a penalty instead of being prosecuted and potentially face a criminal record. FPNs are the main sanction available to the police to penalise non-compliance with the coronavirus Regulations. For the purpose of this report, when we refer to “coronavirus Regulations” we mean those Regulations made under the Public Health (Control of Disease) Act 1984 that have placed restrictions on individuals’ ability to be outside of their home, to undertake certain activities, and to participate in gatherings or to see friends and family.
4.There are concerns over the use, unequal application, review and appeal process, and size of FPNs as an enforcement tool under the coronavirus Regulations. These concerns engage human rights—in particular the right to a fair trial (Article 6 ECHR), the principle of no punishment without law (Article 7 ECHR), the right to family and private life (Article 8 ECHR) and freedom from discrimination in the enjoyment of other Convention rights (Article 14 ECHR). The rights of freedom of assembly and association, and freedom of expression under Articles 10 and 11 ECHR have also been engaged by the enforcement of these restrictions, as we explored in detail in our report, The Government response to covid-19: freedom of assembly and the right to protest.
5.This Committee has scrutinised the Government’s response to the pandemic on human rights grounds since the start of the crisis.
a)In April 2020, we published a “Chair’s briefing paper” on the coronavirus Regulations in which we set out concerns about inconsistencies in the communication of the lockdown restrictions—and the potential confusion between law and guidance, noting the consequent risks for Article 7 ECHR (no punishment without law). This briefing paper also expressed concerns relating to unduly heavy-handed policing by some individual police officers and police forces.
b)In May 2020 we reported on the privacy concerns around the digital contact tracing app. The Government initially intended to design a ‘centralised’ model, which we argued posed significant privacy risks, and we called for protections to be put in legislation if this model was going to be used. The original model was later abandoned in favour of the decentralised model, which raises fewer privacy concerns.
c)In June 2020 we reported on the situation for those with autism and/or learning disabilities in assessment and treatment units and hospitals. We concluded that blanket visiting restrictions would breach Article 8 ECHR and called for the relevant bodies to allow visits by family members unless an individualised risk assessment was conducted which proved, and explained, why visits could not be carried out safely.
d)In July 2020 we considered how the rights of children whose mothers were in prison had been affected by the pandemic and the limits on visiting that had been in place. We concluded that visits must not be ruled out on a blanket basis and that the early release scheme should be extended to allow mothers to return home if they did not pose a risk to the public and were within two months of their release date.
e)In September 2020 we published a major report to inform the six-monthly debate in the House of Commons required under the Coronavirus Act 2020 to keep the provisions of that Act in force. Our report, The Government’s Response to COVID-19: human rights implications, looked at what we considered the biggest issues in the early response to the pandemic. We covered: the legal framework; the lockdown regulations; health and care; detention; contact tracing; children and the right to education; access to justice; procedural obligations to protect the right to life; and accountability and scrutiny. In relation to the coronavirus Regulations and lockdown restrictions, we set out our concerns around ambiguity, mixed messaging and confusion about the substance of the law containing the coronavirus restrictions. We also set out concerns around the enforcement and policing of coronavirus restrictions, including the use of FPNs. Many of the criticisms we made in that report are regrettably still relevant, and we will refer to them as appropriate in our current report.
6.On 30 November 2020 we launched our inquiry into the implications of long lockdown, before the reintroduction of the national lockdown which began in January.
7.Earlier this year we wrote letters to the relevant Secretaries of State on issues around visits in care homes, hospitals, and prisons. We also drafted legislation that would secure rights for relatives to visit people in care homes and hospital settings, unless an individualised risk assessment determined it was too risky to do so. In March 2021 we published a report on the right to assemble and protest, and whether interferences with this right had been justifiable and proportionate during the pandemic. We recommended that outdoor protest be included in the list of exceptions to the prohibition on gatherings alongside picketing and communal worship, subject to equivalent safeguards for those activities.
8.We now turn our attention to issues around enforcement and policing during the pandemic. This report will focus on the following questions raised in our call for evidence:
Is the way that Fixed Penalty Notices (FPNs) are being used to enforce lockdown justifiable, fair and non-discriminatory? Is it clear why FPNs have been issued? Are there adequate ways to seek a review or appeal of an FPN? Are the amounts of FPN fines proportionate? Has there been a disproportionate impact on certain groups?
9.We are grateful to those who gave oral evidence to this inquiry, to those who made written submissions in response to our call for evidence, and to Jennifer Brown of the House of Commons Library. We have also been assisted in our work on this inquiry by our specialist adviser, the barrister Adam Wagner.
10.This report focuses primarily on how the coronavirus Regulations and restrictions have been enforced in England. However, given the similarities of some of the restrictions and the shared challenges, many of the issues raised may well also be of relevance in Wales, Scotland and Northern Ireland.
1 NHS, page last reviewed 1 April 2021
2 Gov.uk, , as 12 April 2021
3 A summary of these restrictions has been produced by the House of Commons Library: Coronavirus: Lockdown laws, Briefing Paper , April 2021; and the relevant Statutory Instruments can be found on the Government website: , last accessed 13 April 2021. Adam Wagner has also published a list showing how the laws have changed, , last accessed 12 April 2021.
4 Joint Committee on Human Rights, Thirteenth Report of Session 2019–21, , HC 1328/HL Paper 252
5 Joint Committee on Human Rights Chair’s Briefing Paper, , 8 April 2020
6 Joint Committee on Human Rights, Third Report of Session 2019–21, , HC 343/HL Paper 59
7 Joint Committee on Human Rights, Fifth Report of Session 2019–21, , HC 395, HL Paper 72
8 Joint Committee on Human Rights, Sixth Report of Session 2019–21, , HC 518/HL Paper 90
9 Joint Committee on Human Rights, Seventh Report of Session 2019–21, , HC 265 / HL Paper 125
10 Joint Committee on Human Rights, Seventh Report of Session 2019–21, , HC 265 / HL Paper 125
11 Joint Committee on Human Rights, , closed 11 January 2021
12 Letter to Rt Hon Matt Hancock MP, Secretary of State for Health and Social Care, , dated 3 February 2021; and Letter to Lucy Frazer QC MP, , dated 2 February 2021
13 Joint Committee on Human Rights, Draft SI:
14 Joint Committee on Human Rights, Thirteenth Report of Session 2019–2021, , HC 1328 / HL Paper 252
15 Joint Committee on Human Rights, , closed 11 January 2021