The Corona Virus Bill and human rights

The UK, and the World, are facing a health crisis that we have not seen the likes of in over 100 years. This is a worrying time for many people and there is a need for governments to respond, including ours here in the UK. At times like these, when so many of us can find ourselves in an unfamiliar (or familiar) position of vulnerability, it is vital that we can be assured safety includes the protection of our dignity and not losing the rules of fairness and respect in the way power is used to respond to this situation. Recognising the need to protect everyone’s human dignity was, after all, born out of World War 2, one of the worst crises in modern history.

Human rights are our roadmap for peace times and times of crisis; our government must ensure that its response has these rights front and centre in decision-making and does not make the situation worse. With this in mind, we take a look at some of the human rights issues involved in the Corona Virus Bill, particularly in relation to health and care for people who are already in vulnerable situations.

What is the Corona Virus Bill?  

On Tuesday evening the UK government announced that it would introduce changes to legislation in response to the Covid-19 virus. The government has just this afternoon placed the Bill before Parliament (here), following the Summary it published earlier this week (here).

The new powers in the Bill can be used for up to 2 years. On the face of it this appears to be a significant period of time. For example, other legislation allowing emergency powers contain review clauses which enable Parliament to scrutinise the continued need for measures after set amounts of time. Right away this raises concerns that the powers under the new Corona Virus Bill may not be proportionate; which is a key requirement for any law which restricts our human rights as protected by the UK’s Human Rights Act.

However, not all of the proposed measures will come into force immediately on the passing of the Bill. The Summary states that the Bill allows the 4 governments across the UK (of Northern Ireland, Scotland, Wales and the UK) to switch on these new powers when they are needed (and to switch them off again once they are no longer necessary). The Summary says that this will be, “based on the advice of Chief Medical Officers of the 4 nations”.

Careful scrutiny of the Bill is needed to check how these powers will be activated and the processes for them ending, making sure there is a system of checks and balances, as with any good democracy.

What new powers does the Bill give the government?

The Bill includes a number of new powers for the Government (the UK government and the governments of the devolved nations). An area of particular concern for BIHR is that of mental health and care; and the Bill contains measures that impact this area. There are a number of other human rights issues with the Bill, which we will also be considering.

The changes to the powers to detain under Mental Health legislation include removing the need for 2 doctors to sign of the sectioning of person, and allowing for the extension or removal of time limits in mental health legislation. This means that people may be released into the community early (without the right support) or find themselves detained for longer than necessary. Added to this are the potential removal of NHS Continuing Healthcare Assessments which are supposed to identify and provide the help people with complex health needs should receive when they leave hospital.

More broadly, there is the change of Care Act assessments for care and support to become powers that can be used, rather than duties which must be done. The Bill’s Notes explain this shift to a power rather than duty will be underpinned by the duty to not infringe people’s human rights. But this of course relies on frontline staff who are making these difficult decisions to know the human rights at risk.  Our experience of working with thousands of local authority, health and care staff each year is that there simply isn’t consistent knowledge and confidence among professional to ensure that decision-making has human rights at its heart.

There are also provisions which will allow general powers to detain people. As the Summary stated, the “Bill will enable the police and immigration officers to detain a person, for a limited period, who is, or may be, infectious and to take them to a suitable place to enable screening and assessment.” Again, careful assessment is needed around the criteria which will be used to decide whether someone, “may be infectious.” Or indeed the criteria around what a suitable place for screening and assessment might be. It is during unprecedented times like these that we require more scrutiny on how rights will be upheld, not less.

Why are these changes included?

The government says the changes to the power to detain people under Mental Health Legislation are to ease the burden on frontline NHS staff. The general power to detain people who are or may be infectious is to “delay and slow” the virus.

Which Human Rights are involved?

Detaining someone raises important human rights concerns around their right to liberty (Article 5 of the Human Rights Act (HRA)) and their right to a private and family life (Article 8 HRA). Any restrictions of these rights must be lawful, legitimate and proportionate.

Rights can be restricted for a number of legitimate reasons, as identified in the rights themselves, some of which include the protection of public health. However, this would only apply when the person themselves is a risk to public health. There are questions about whether all the powers which may restrict rights are in fact based on this criteria. It appears from the Summary that lack of resource is the main reason for restriction. These are of course unprecedented times; but lack of resources as a sole justification is usually not enough to restrict a person’s human rights.

These safeguards have been put in place by the Human Rights Act to ensure that any restriction of these rights is lawful, legitimate and proportionate, so when these safeguards are being removed (or considered for removal) it begins to raise serious concerns.

Of course, there is also a very real argument that the right to life needs to be protected, and in the Bill’s notes the government does flag this. However, the fact that the Human Rights Assessment which usually accompanies Bills has not been published at the same time as the Bill is certainly worrying. It would be useful to see the government’s analysis and understand how human rights have been considered as part of their process in drafting the Bill.

Importantly, parliament’s Joint Committee on Human Rights has also today issued a call for evidence in its Inquiry into the Bill to ensure that the human rights implications of these potentially sweeping proposals have been properly considered.

What does this mean for people with mental health issues?

It is often stated that 1 in 4 of us will experience mental health issue; and last year’s NHS data shows almost 50,000 people were newly detained under the Mental Health Act in 2018/19 (commonly known as sectioning), although the true figure is likely to be higher as the data is incomplete. Added to this are some significant failures of both mental health law and services to respect the rights of people who are detained. The Mental Health Act (MHA) itself is currently under review. There are numerous reviews and investigations into the way detained people are treated, just last month the regulator found that more focus on human rights is needed by healthcare services when using the MHA.

As noted, the proposed powers could be in place for up to two years. The real-life effects on people’s lives could be huge, particularly when we are considering people who are already in a vulnerable position and subject to significant control under mental health law. For example, the potential to detain a person for up to two years without review is highly worrying. The knock-on effect of this could even be that it meets the high threshold for inhuman and degrading treatment (Article 3 HRA). Inhuman and degrading treatment can never be justified, even on public health grounds.

This crisis is undoubtedly impacting on people’s mental wellbeing. The need for safeguards where you’re in a vulnerable situation already cannot be overstated. The people we work with everyday tell us, if only their rights had been respected it would have made the mental health treatment they needed so much better, rather than making them feel powerless. The risk with sweeping new measures is that the experience of people who are already vulnerable becomes even worse. And for up to two years. Two years in a mental health ward is a long time.

What happens now?

There is no argument that most human rights can indeed be restricted, and times of public emergency may be one of these situations. We are certainly facing an unprecedented situation which is ever changing; but this is precisely why safeguards are so important. Any restrictions must be carefully thought through, so that restrictions are rights-respecting rather than breaching the very standards that we all need to maintain our safety and dignity.

The Bill is now in front of Parliament today and MPs will decide whether or not it will become law, and if passed the Bill is expected to enter into force quickly (by the end of this month) because of the gravity of the situation. We will be following this closely.

At a time when division is too easy, rights should be uniting. Restrictions may be allowed but it is very important that these restrictions are kept lawful and maintain a human element as to why safeguards for people in such vulnerable situations are so important.

Where can I find more information?

  • Read BIHR’s short explainer on the Corona Virus Bill here.
  • Keep up to date with the current NHS advice on Corona Virus here.
  • Find out more about the Human Rights Act here.