The Government must urgently consider the human rights implications of COVID-19 measures, says Joint Committee on Human Rights

Today the Committee have published a Report that seeks to inform the six-month review of the Coronavirus legislation required by the Coronavirus Act 2020, along with any future response to a "second wave" of the virus. Whilst the central aim of the Government’s response has rightly been to protect life, the Report today raises concerns about the wider human rights implications of some of those measures. The Government must be able to justify the steps it has taken as being necessary and proportionate, and it must be open and transparent about the evidence it has considered and how it has made its decision.

In March, the Joint Committee on Human Rights announced that it would be scrutinising the Government’s COVID-19 response and issued a call for evidence on this topic. In particular, the Committee announced it would be looking at legislation that the Government bring forward to contain and control the COVID-19 outbreak, how those measures are then implemented, and how the response could be differently affecting different groups of people.

The Committee has questioned the Lord Chancellor, Robert Buckland MP. It then followed this by hearing evidence and publishing reports on:

• Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing;
• Human Rights and the Government’s response to Covid-19: the detention of young people who are autistic and/or have learning disabilities;
• Human Rights and the Government’s response to Covid-19: children whose mothers are in prison.

The 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.”

Within the Report, the Committee makes recommendations on the following:

Lockdown regulations

There has been confusion over the status and interpretation of guidance, and the relationship between guidance and the law in terms of the implementation of lockdown regulations across the country. The Committee has also expressed concern about the disproportionate impact of policing decisions on young men from black, Asian and minority ethnic backgrounds. 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.

Test and trace

This Committee has raised concerns around privacy, data protection and discrimination in the development of a contact tracing app. 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.

Rights of people in detention

The Committee is deeply concerned about the human rights of people in various types of detention. 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, including prisons, hospitals and care homes must be a priority as soon as it is safe to do so.

Access to justice

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.

School closures

The Committee is concerned at the impact that school closures have had on children and that 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.

A swift lessons-learned review and a public inquiry

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. The Committee also notes that it is very likely that a public inquiry will be needed. 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 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.