Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing Contents

Summary

The Covid-19 pandemic presents significant challenges for governments across the world. In addressing the virus, the Government is required to protect the right to life, guaranteed by Article 2 of the European Convention on Human Rights (EHCR). The UK, like many countries, has sought to protect the right to life by enforcing “lockdowns” which have placed severe restrictions on individuals’ movements, with significant and wide-ranging implications for human rights.

The UK Government now has plans to release a contact tracing app as part of its strategy to “test, track and trace to minimise the spread of Covid-19 and move towards safely reducing lockdown measures.”1 The app would notify individuals who may have been exposed to the virus to take the appropriate action such as to self-isolate or to get tested. If effective, a contact tracing app could pave the way out of current lockdown restrictions, enabling individuals to move around more freely whilst helping to prevent the spread of the virus.

However, any such app will have an impact on the right to private and family life, protected under Article 8 of the ECHR. If a contact tracing app enables people to move around freely and safely, and is accompanied with the sufficient protections, then the risk to privacy could be a more proportionate interference with individuals’ human rights than current restrictions imposed by the lockdown. However, there are significant concerns about a tracking app being rolled out at speed with the potential longer-term effects on personal freedoms and concerns around surveillance encroaching on people’s everyday lives. Such an app must not be rolled out nationally unless strong safeguards and protections are in place.

It is not clear that the current legal and regulatory arrangements provide satisfactory, indeed the necessary, legal oversight required. State-controlled apps that enable the mass surveillance of personal data, and that could then enable the (proportionate or otherwise) violation of fundamental rights are novel. The introduction of such an app is an innovative apparatus of state interaction with its citizens. The implications of such an app are so widespread, significant, and, as yet, subject to limited public examination, that they should be subject to the in-depth scrutiny of Parliament at the earliest opportunity. The Committee is concerned that this has not happened to date.

Previous extensions of state powers of surveillance and data collection for the purposes of terrorism prevention have been legitimised by legislation scrutinised by Parliament; and so, it should be for public health purposes.

Having a carefully considered legislative basis for this app would better engender public trust and participation.

Legislation would require a formal human rights assessment to take place. This degree of formal rights balancing is lacking at present, being left to the NHSX team and its advisory bodies. In particular, Parliamentary scrutiny would allow for consideration as to whether the use of a centralised system, as opposed to a decentralised system, is reasonable and proportionate. The implementation and oversight of this app must, in our view, be urgently placed on a legislative footing; if rolled out without being governed by a clear legislative framework it risks not complying with the provisions of the ECHR.

In our view, a contact tracing app must not be rolled out nationally unless there are guarantees with respect to:


1 Coronavirus test, track and trace plan launched on Isle of Wight, Department of Health and Social Care press release, 4 May 2020

2 See in particular, UNCRC, Article 3, and the Children Act 2004, Section 11




Published: 7 May 2020