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The Corona Virus Bill and Human Rights

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 Bill has just this afternoon been placed before Parliament, following a government a summary 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 happens.

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.

 

The Big Give Christmas Challenge 2017

28 Nov - 5 Dec The Big Give will DOUBLE your donations to BIHR's vital outreach work in communities across the UK

From midday 28 November to midday 5 December, any donation to you make to BIHR via The Big Give will be doubled! So you give once, but make twice the impact.

As a charity we rely on your support to help us make human rights easy to understand, relevant and practical for people in their everyday lives.

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Human Rights in Action

A series of blogs from BIHR's partners on how they have been using human rights in practice to improve health and care services. See how human rights are Changing Lives and Changing Organisations to see the outcome of this work. Access our toolkits to read about how you can put human rights into action in your work.

BLOG: 15 Years of the Human Rights Act



On 2 October 2000 our Human Rights Act became law, protecting universal human rights across the UK. Fifteen years on, this October BIHR has organised 15 days of action, including a tour with events across the UK to celebrate this important anniversary our Human Rights Act and the difference it has made to our democracy and people’s lives across the UK.  This blog is place where BIHR (and some guest bloggers), will share often unheard stories that should be part of our debates about the value of the Human Rights Act and human rights in the UK.

Please note views expressed in this blog do not necessarily reflect the views of BIHR. 

International Womens Day

The Human Rights Act, ensuring safety from domestic violence


By Natalie Threlfall (BIHR) and Tina Reece (Welsh Women's Aid)
 

Joanna Michael's Case

On the 5 August 2009, Joanna Michael from Cardiff called 999 and told the call handler her ex-boyfriend had been to her house and hit her. He left, threatening to come back and kill her. The call operator mistakenly heard that he had threatened to ‘hit’ her. Because the call had gone through to the wrong police service initially, when it was passed to South Wales Police, they did not get the full story and they did not grade the call as immediately urgent. By the time the police arrived at Joanna’s house, she was dead.

Unfortunately, the circumstances of Joanna’s death are not unusual. Two women a week on average are murdered by their partner or former partner. But it has never been so obvious as it was in Joanna’s case that the police could do more. Joanna’s family, with the support of Welsh Women’s Aid, went to court and argued that the police had been negligent in failing to respond to her 999 call, and that their failure had breached Joanna’s right to life under Article 2 of the Human Rights Act.

Why it's the Human Rights Act that makes accountability possible

Negligence actions against the police traditionally do not succeed in English and Welsh law. This case was no different – the Supreme Court did not allow the argument that the police had been negligent because it would leave the police open to claims from everybody who calls 999 and would make policing more difficult. One of the judges, Lady Hale disagreed. She hoped that finding liability in negligence would lead to “much-needed improvements in their response to threats of serious domestic abuse”.

Although the negligence action was not successful, the Court allowed the claim to proceed on the human rights grounds. This is because, under the Human Rights Act, the police owed Joanna a positive duty to protect her life (Article 2). Whether or not they had breached that duty was a question of fact and should proceed to trial.

Why is this so important?

Speaking about the case, Eleri Butler, CEO of Welsh Women’s Aid says:
Where there are failings in protecting victims of domestic violence, accountability is crucial. Violence against women is a fundamental violation of women’s human rights and the Supreme Court’s judgment provides timely reaffirmation of the importance of human rights protections for victims of domestic violence. The Human Rights Act has a vital role to play in this.  If it was not for the Human Rights Act, the family of Joanna Michael would have no prospect of obtaining accountability for Joanna’s death.
This case makes it clear that domestic violence is a human rights issue. The highest court in our land has made it clear that the police have a legal duty to victims of domestic violence to take steps to protect when a woman’s right to life is at risk. When Joanna’s case goes to trial the judge will decide whether or not the police did all they could reasonably do to protect Joanna’s life.

The Human Rights Act made it possible for Joanna’s family to directly challenge actions of the police that may have led to her death. If the police did breach Joanna’s right to life then South Wales Police, and police forces across Britain, will have to take steps to ensure victims of domestic violence are not failed in the same way ever again.

Preventing violence against women in Wales

The Joanna Michael case put domestic violence on the agenda in Wales. On Tuesday 10 March, the Welsh Assembly will hear the Stage 4 debate of the Violence Against Women (Wales) Bill. If made law; this Bill would secure vital protections for women and girls in Wales, including a whole school approach to education on violence against women in schools. The Bill passing is not a sure thing, so Welsh Women’s Aid are asking you to show your support by tweeting #cantlosethebill and helping to ensure that domestic violence is stopped before it can start. Find out more about the Bill here.

Protecting the human rights of women in the UK

With domestic violence squarely on the human rights agenda, on International Women’s Day we can reflect on the ways the Human Rights Act protects the rights of women here in the UK. Along with victims of domestic violence, the Human Rights Act has held the police to account for failing victims of rape. No other piece of law can protect women’s rights the same way. The Joanna Michael case shows that if it is a question of police negligence, the common law will not hold the police to account for failings.

Not only does the Human Rights Act allow us to hold public authorities to account, it is also a tool for ensuring that services are delivered in a way that respects rights in the first place. All public authorities must deliver services and make decisions in a way that respects human rights. Now that this case has made sure that failings towards victims of domestic violence are seen as a human rights issue, the police and public authorities will need to examine their services and ensure that these failings do not happen again. BIHR’s work helping public services to embed human rights in their work shows that this is achievable and leads to better outcomes for services and service users in the long term. Read more about the people whose lives have changed through our work on the Human Rights Act.

Speaking up for human rights at home 

If you think human rights are worth respecting and protecting, consider joining in with March For Human Rights, BIHR’s month of activities helping people to speak up. Check out our mini-site and tweet us a selfie with the hashtag #ImAlrightWithHumanRights, letting us know why you are alright with human rights, especially this International Women’s Day.  

BIHR Blog

Please note views expressed in this blog do not necessarily reflect the views of BIHR.