19 November 2020

Note: updated 24 November 2020 to reflect that Article 39’s appeal case was successful.

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When Covid-19 struck the nation in March and the UK was plunged into its first strict lockdown, no one had a chance to think about the impact of Covid-19 and the Government’s response to the pandemic on human rights.

2020 was due to be a big year for human rights, with the European Convention on Human Rights turning 70 earlier this month (read more about the Convention in our Explainer). However, with Covid-19 hitting in 2020, the United Nations has made it clear that this public health crisis is also a potential human rights crisis; and that human rights must be at the heart of both the response and recovery to the pandemic. At BIHR, we work to enable change through human rights by supporting people, organisations, community groups and public bodies to use human rights in their daily lives and work. We do this by building people’s knowledge and confidence to use the rights and duties in the Human Rights Act in practical ways. Learn more about human rights and how they are protected in the UK in our Explainer on the Human Rights Act.

Human rights are crucial for ensuring we can all live dignified lives by providing the rulebook for how public authorities should treat us. Human rights are crucial all the time, but during Covid-19 they have been even more important than ever. The response of public bodies, local authorities and the UK Government to the pandemic has put people’s rights at risk in various ways. Difficult decisions have had to be made, but they have not always been done in ways which respect and promote human rights. What’s more, wide-ranging new laws have been brought in, reducing important duties on public services and safeguards on our rights. This has led to people bringing challenges against decisions of the Government and public bodies where they are putting people’s rights, and often lives, at risk.

Here is an overview of 3 such cases and challenges during Covid-19 which have been particularly important for people’s rights.

 

Challenging the suspension of protections for children: Article 39 v Secretary of State for Education [2020] EWCA Civ 1577

In this case, children’s rights charity Article 39 have successfully challenged the lawfulness of the Adoption and Children (Coronavirus) Amendment Regulations 2020 ("the Regulations"), which were introduced in April to reduced legal protections for children in social care services in response to Covid-19.

In particular, this judicial review case raised three challenges:

  1. that the Department for Education failed to consult before making the changes to children’s legal protections;
  2. that the Regulations were contrary to the objects and purpose of primary legislation, particularly the Children Act 1989; and
  3. that the Education Secretary breached his general duty to promote the well-being of children in England.

This case was not successful in the High Court, and the judge dismissed the case on all three grounds. However, Article 39 appealed the decision and the judgment delivered on 24 November 2020 found that the Secretary of State for Education, Gavin Williamson, acted unlawfully in failing to consult the Children’s Commissioner for England and other children’s rights organisations before making “substantial and wide-ranging” [paragraph 79] changes to legal protections for England’s 78,000 children in care.

A quote from Lord Justice Baker, who delivered the leading appeal judgment:

I can find nothing about the circumstances that existed in March 2020 to justify the Secretary of State’s decision (if indeed any conscious decision was made) to exclude the Children’s Commissioner and other bodies representing the rights of children in care from the consultation on which he embarked.”

[paragraph 85]

This case has brought children’s rights during Covid-19 to the forefront of the nation’s attention. The judicial review case successfully highlighted how the “administrative burdens” which the Regulations removed (as the Government argued they were) have had real life impacts on children and diminished the ways in which their rights are safeguarded during the pandemic. As Mrs Justice Lieven, the High Court judge, explained, the safeguards in children’s services have been “introduced over time precisely because of the risks that [looked after children] face and the need for safeguards to be in place” [paragraph 74]. They are essential in meeting the needs and respecting the rights of children in care. When making decisions which will impact the rights of children who the state have duties to, the Secretary of State for Education must consult with stakeholders such as the Children’s Commissioner for England and other children’s rights organisations.

 

John’s Campaign’s challenge care home visiting guidance during Covid-19

During the pandemic, John’s Campaign has challenged the UK Government’s guidance on visiting policies in care home during Covid-19. In September, they sent a pre-action letter to Secretary of State for Health and Social Care, Matt Hancock, to challenge the legality of the guidance on care home visits first published on 22 July 2020[1]. This letter argued, amongst other points, that the guidance was contrary to the right to private and family life (Article 8 Human Rights Act), the right to life (Article 2 Human Rights Act), the right to be free from torture and inhuman and degrading treatment (Article 3 Human Rights Act) and the right not to be discriminated against (Article 14 Human Right Act).

The group have now applied for judicial review against recent updates to the guidance on 15 October sent by the Department of Health and Social Care to care homes. They argue that the guidance encourages ‘blanket bans’ on visiting policies in areas of England under Tier 3 (“Very High”) restrictions[2]. Such blanket ban approaches do not meet the obligations under the Human Rights Act on public bodies to take individualised approaches to decision-making. Read more about John’s Campaign’s challenge on Leigh Day’s website (the law firm representing them).

Whilst the judicial review hearing is awaited, some progress has been made in the UK Government’s approach to care home visiting guidance. The Scottish, Welsh, Northern Irish and UK (for England) governments all recently publishing guidance around phasing in the re-introduction of visiting. There is still much work to be done to make sure care homes are meeting their duties to protect, respect and promote human rights when setting their visiting policies, and that they are supported to do this by the Government. Read more about visiting policies and human rights in our recent blog by Eilidh, Human Rights Officer here at BIHR.

 

Guidance on critical care challenged as discriminating against people with learning disabilities and/or mental health issues

In March, there was a challenge to the National Institute for Health and Care Excellence (NICE) guidance for NHS clinicians about which patients should be admitted to hospital and referred to critical care. This case was taken by a disabled person, with their mother acting as their litigation friend (this is a person who has a power of attorney and can bring a case for a person on their behalf when they are not able to take the case themselves). They argued that the guidance and its encouragement to assess adults against the 9 point Clinical Frailty Scale for Frailty Assessment (‘CFS’) discriminated against people with learning difficulties, and/or mental health issues, and/or Autistic people. A judicial review claim was started. Read more about this challenge on Hodge Jones & Allen's website (the law firm who represented the woman in this challenge).

In response to this challenge, the NICE guidance was changed in April to specifically state that the CFS assessment “should not be used in younger people, people with stable long-term disabilities (for example, cerebral palsy), learning disabilities or autism. An individualised assessment is recommended in all cases where the CFS is not appropriate.”

Individualised assessments are key to ensuring that people’s individual care and support needs are met, and their human rights promoted in this way. In contrast, blanket approaches, such as those which attempt to limit the access to critical care for whole groups of people, are rarely human rights compliant. Such approaches signal a moral judgement about equality of life, not a medical decision about an individual’s treatment and prognosis, and as such will fall to meet the right to non-discrimination (Article 14, HRA). Plus, there are the rights to autonomy and involvement in decision making covered by our right to respect for private and family life (Article 8, HRA). This right can be restricted by public officials and frontline staff, provided their decision is lawful, legitimate and proportionate. This three-stage test must be at the heart of any decision that attempts to restrict people’s rights. Read more about the importance of individualised decision-making, especially during Covid-19, in our Director Sanchita’s blog: ‘The fight against Covid-19: Whose life counts?’.

 

A final thought…

These cases and judicial review challenges show the strength that individuals and organisations can have in holding the Government to account for its actions. This is vitally important in times of national crisis like we’ve faced this year. It is all too easy for people’s rights to be forgotten about until it’s too late. Our research during Covid-19 for the UK Parliament Joint Committee on Human Rights (JCHR) inquiry shows this, with people accessing health and care services telling us they are not having their needs met. Almost 70% of people surveyed said their care and support had got worse during Covid-19. This was echoed by staff, with 82% telling us that it has been harder to uphold people’s human rights. Find out more and read our evidence reports here.

The UK Government have recently established a panel to review the judicial process in the UK. We submitted evidence to the panel which shows that judicial review is a crucial mechanism for protecting and respecting the human rights of people in the UK. Judicial review protects not only the people that are directly affected by a decision that is made by public bodies but all of us, by helping to ensure there is a human rights culture in the UK. Read more about our evidence here.

[1] Please note, the guidance has been updated a number of times since 22 July 2020, and previous versions of the guidance are not available on the UK Government website. A summary of the updates can be found near the bottom of the ‘Visiting care homes during coronavirus’ guidance webpage.
[2] Please note that England is now in full lockdown, and the tiers system no longer applies.