The lockdown regulations have had a huge impact on the rights of millions of people across the country, the joint committee on human rights has warned.
Following an inquiry into the human rights implications of Covid-19 restriction, the committee states that 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,” said the report.
“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,” it added.
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, the committee warned.
“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,” said the report.
- 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.
- The committee raises concerns around privacy, data protection and discrimination in the test, track and trace element of the government’s approach.
- 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 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 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,” said the report.
“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,” the report added.
In terms of lockdown regulations, the report states that lessons must be learnt from this period of lockdown in order to avoid the worst elements of confusion and disproportionality before any further lockdowns either at a local or national level.
With reference to test and trace, 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, whether that is through an app or through the test, track and trace programme.
The measures taken during lockdown and beyond have breached the right to family life of both those detained and of their loved ones. Resuming visits across all settings such as prisons, hospitals and care homes must be a priority as soon as it is safe to do so, the report recommends.
While the committee welcomes the use of live link technology as a mechanism of avoiding delays to justice, the government should ensure those who are digitally excluded or otherwise vulnerable are not disadvantaged.
The government should address any barriers that children with SEND may experience regarding their return to school following school closures.
“The Committee encourages the government to undertake some form of swift lessons-learned review as soon as possible in order to fulfil its human rights obligations and to prevent future unnecessary deaths, and any such findings should be incorporated into the government's planning and response to any further waves of infection,” said the report.
In terms of the use of emergency powers, the Committee states that the government should announce its decisions to Parliament first, 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 these exceptional circumstances, the use of emergency procedures must be limited to what is absolutely necessary. This is especially the case when human rights are at stake.
Chair of the Committee, Harriet Harman MP QC said: "The scale of this crisis is unlike anything many of us will see again in our lifetime. Disruption to our normal way of life and human rights are sometimes necessary in order to lead the country through any significant emergency, but this must always be done in a way that is proportionate and justifiable in accordance with the balancing act that is protecting our human rights.
“As we approach the Coronavirus Act’s six-month review, there are a number of concerns that the government must urgently address. Confusion over what is law and what is merely guidance has left citizens open to disproportionate and unequal levels of punishment for breaking the rules, and unfortunately, it seems that once again, this is overtly affecting BAME individuals. The government must learn from these mistakes to ensure that any additional lockdowns do not unfairly impact specific groups.
“Several times now we have expressed our dismay over the government's treatment of people in detention, and once again we must impress on the government the urgency of resuming visits as soon as possible. We cannot know how long coronavirus will impact us, but we heard how devastating being separated from one's family can be for those in care homes, in prison and detained in mental health facilities and this cannot continue for much longer. Blanket bans on visits are not justifiable.
“Parliament and the public must be kept appropriately and promptly informed about changes in policy, especially when the human rights of so many are affected in such a wide variety of ways. This is an unprecedented and uncertain time for everyone, and the government must act in a justifiable, fair and proportionate way".
The government’s response to COVID-19: human rights implications