Summary
The central aim of the Government’s response to the Covid-19 outbreak in the UK has been to protect lives. The right to life is protected in law in Article 2 of the European Convention on Human Rights. This requires the state to take appropriate steps to safeguard lives. However, inevitably, attempts to save lives through government actions including the restriction of movements, gatherings, and school closures have engaged numerous other rights. Many have experienced the widest and deepest set of government interferences with their rights in their lifetimes.
Some groups have been particularly at risk from Covid-19. In order to ensure respect for the right to life it is crucial to ask whether the steps taken have done enough to protect the lives of those most vulnerable to the disease. The death rates for older people and those from black, Asian and ethnic minority groups amongst others have been startlingly high in comparison to other groups. The allocation and prioritisation decisions for personal protective equipment (PPE) have been, and will continue to be, crucial, in order to protect those most at risk. These decisions must be evidence-based and non-discriminatory. Blanket use of Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices in care homes constitutes a systematic violation of individuals’ rights. The Government must ensure that their blanket use is not allowed.
There has been a disproportionate impact of some of the measures taken to stop the spread of the disease on certain people in our society, such as children whose right to education was engaged by school closures and those in detention with autism and/or learning difficulties who were denied family visits during this time. This balancing act is a difficult one, but it is vital that the Government can justify the steps it has taken including the necessity and proportionality of interferences with rights through the measures taken. Assessments of the proportionality of measures must be up-to-date, based on the latest scientific evidence, and formulated as a result of a precautionary approach to minimising overall loss to life. Importantly, the Government must be transparent in justifying its decision-making, including in explaining how it has balanced competing interests and the evidence on which the balancing decision has been made.
This committee has long been concerned about the rights of people in various types of detention. In this report we consider those held in prison and young offenders’ institutions, those held in immigration detention settings, and young people with autism and/or learning difficulties who are detained in assessment and treatment units or other settings. Lockdown restrictions in these settings should be subject to a reasoned and transparent proportionality assessment. The use of solitary confinement breaches the rights of children in detention, and where it is prolonged, the rights of adults. There are risks the measures taken during lockdown and beyond have breached the right to family life of both those detained and of their loved ones. We heard distressing evidence of the impact of this on the children of mothers in prison in particular. As soon as it is safe to do so, prison visiting must resume as a matter of priority.
The lockdown regulations have had a huge impact on the rights of millions of people across the country. There has been confusion over the status and interpretation of guidance, and the relationship between guidance and the law. There have been additional questions about the type of policing that is most appropriate in a health crisis, and the disproportionate impact of policing decisions on young men from black, Asian and minority ethnic backgrounds. Lessons must be learnt urgently from this period of lockdown in order to avoid the worst elements of confusion and disproportionality before any second wave and any further lockdowns either at a local or national level. This is all the more important given the speed and frequency with which national and local lockdown laws change and the consequent difficulty for people to keep on top of what is legally required and what is reasonably expected of them—indeed many lockdown laws have been announced and passed even between drafting, consideration and publication of this Report.
This Committee has reported before on privacy concerns in relation to the Government’s plans for a contact tracing app using a centralised model of data collection. The move to a decentralised app means these issues have diminished but not vanished. In addition, we have raised concerns around privacy, data protection and discrimination in the test, track and trace element of the Government’s approach. The Committee recommends that specific tailored legislation should be introduced to protect people whose data is collected as part of the Government’s contact tracing programme.
The right to a fair trial and right to liberty have been engaged by measures taken by the Government with regards access to justice and the operation of the Courts. The Committee welcomes the use of live link technology as a mechanism of avoiding delays to justice, but the Government must ensure those who are digitally excluded or otherwise vulnerable are not disadvantaged and that the principal of open justice continues to apply.
The closure of schools engages the rights of the child including children’s right to education. Closures will have had different impacts on different children and the Government must ensure that existing inequalities are not made worse during this period. School closures have particularly impacted the rights of those with Special Educational Needs and Disabilities (SEND). The Government must address any barriers that children with SEND may experience regarding their return to school.
The right to life includes, in cases where state actions may have contributed to a death, procedural obligations on the state to find out why someone has died as well as to learn any lessons to avoid unnecessary deaths in the future. It is crucial that some form of swift lessons-learned review is undertaken as soon as possible, in order to learn lessons to help to prevent future unnecessary deaths. The findings should be incorporated into the Government’s planning and response to any further waves of infection. Moreover, in order to fulfil the UK’s obligations to consider structural issues contributing to Covid-19 deaths, it is very likely that a public inquiry will be needed. Such an inquiry should be timely, have focused objectives and be time-limited. This inquiry must consider, at least, deaths in detention settings; deaths of healthcare and care workers and the availability of PPE; deaths in care homes due to early releases from hospitals; and deaths of transport workers, police and security guards due to inadequate PPE.
The Government must be transparent in justifying the timings of its decisions to go into, and out of, lockdown. It is incumbent on the Government to ensure it can justify its decisions as necessary and proportionate, and based on relevant scientific evidence with a precautionary approach to minimising the overall risks to life.
Parliament is the right place for the Government to announce its decisions, and this is particularly so where emergency powers are being used. Whilst the use of emergency procedures such as fast-tracked legislation and made affirmative statutory instruments may be justified in the exceptional circumstances in which the nation found itself in March, the use of emergency procedures must be limited to what is absolutely necessary. This is especially the case when human rights are at stake.
Published: 21 September 2020