19 November 2020

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The “lockdown” in response to Covid-19 began in the UK on 23 March 2020. On 5 November 2020, England entered a second national lockdown, which means there are strong restrictions on people’s movements (and what businesses can operate). Wales was under “firebreak lockdown” rules since 23 October 2020, which lasted until 9 November 2020. Scotland introduced a new five-tier local lockdown system on 4 November 2020. Northern Ireland introduced more restrictive lockdown measures on 16 October 2020, and they will last 4 weeks.

Since March, people in the UK have faced a range of different lockdowns and restrictions. The word “rules” has been used by the UK Government (and the governments in Wales, Scotland and Northern Ireland). It is important to remember this means two different things:

  1. The law on restrictions, which have been made by the Government, called Regulations. These are different to the usual law-making process which the UK parliament (or the devolved parliaments / assemblies) debate, can suggest changes to, and they agree and pass the law. The lockdown Regulations are being made as emergency laws. Public health law gives the Government the power to make these emergency laws. The UK Government has issued many emergency laws about lockdown and the pandemic during 2020. The laws which started the first lockdowns all were the Health Protection (Coronavirus, Restrictions) Regulations 2020. There was a different set of Regulations for each of the nations of the UK.

  2. The Government’s guidance and communications on Covid-19. Even though the Regulations and the guidance both come from the UK Government, there has been a pattern of these not matching up. For example, during the first lockdown that started in March 2020 government guidance and communications said people in England could only exercise for 1 hour once a day. However, the law (the Regulations) did not say this; the law allowed people to be outside of their homes if they had a reasonable excuse, including to exercise (with not time or frequency limit).

This confusion between the law and the guidance has caused problems. For example, people with mental or physical health conditions may have needed to exercise (including walking) outdoors more than once a day or for longer than an hour. This was allowed by the law, but the guidance did not say this at first, and some disabled people reported being harassed or bullied for being outdoors.

Since March 2020, BIHR has produced a number of plain language Explainers, to help people understand what the law on lockdown has been, updating them with the many changes. You can find these as PDFs in the Changes to Law and Policy section of our Human Rights and Coronavirus Hub. We will no longer be updating these Explainers to reflect new changes to the laws.

This Explainer provides a general overview of what the lockdown means for our human rights. To stay up to date with the changes in your nation, be sure to check the UK Government website, the Welsh Government website, the Scottish Government website and the Northern Ireland Government direct website. Remember that the guidance does not always reflect the law.

 

What are our human rights in the UK?

Human rights are legal protections we are all entitled to simply by being human. These rights ensure that we are all treated with dignity, respect and without discrimination.

Human rights are based on values such as fairness, respect, equality and dignity but they are more than just nice ideas, they are protected in law. Human rights are like the rule book for how governments must treat individuals

The European Convention on Human Rights set down a range of these rights in a law for the 47 countries that are part of the Council of Europe (this is separate from the EU). The Human Rights Act (HRA) is a UK law, passed by the UK parliament. This law brought human rights in the Convention into the UK’s domestic law and created the legal duties for how these rights should be upheld here at home.

The HRA contains the 16 human rights which are there to ensure that we are all treated with dignity, respect and without discrimination. These rights are:

 

 

The HRA places a legal duty on public bodies (and those delivering a “function of public nature” such as public services provided by private organisations) throughout the UK to respect, protect and fulfil human rights across their actions, decisions, policies and services. These public bodies include the Government; this means when they are making laws such as Regulations, and when they issue guidance, they should be upholding human rights.

The human rights legal duty on public officials has three parts:

Respect: duty to not breach human rights.

Protect: duty to take action to safeguard people’s rights.

Fulfil: duty to have the right processes and procedures in place, and to investigate when things have gone wrong

This duty existed before Covid-19 and continues to exist now. It has not changed during the pandemic and any decisions made by a public body must respect and protect human rights. Read more about the Human Right Act in our Explainer.

 

What does the lockdown mean for our human rights?

There are a range of human rights under the Human Rights Act that may be impacted when we’re under lockdown. These include:

  • The right to life (Article 2). This includes a duty on Government to take proactive steps to protect life. When making decisions about public health, the Government and public bodies must be thinking about protecting the right to life.

    But it is important to remember that action to uphold the right to life, does not mean other human rights are unimportant. Other human rights need to be considered, and if those rights can be restricted the restrictions must be lawful, legitimate (usually to protect the person or wider community) and proportionate. Proportionality is important; it means that the government (or local officials and services) must look at all the options and chose the least restrictive option. (Remember, some human rights, like freedom from inhuman and degrading treatment, cannot be legally restricted).

  • The right to be free from torture and inhuman or degrading treatment (Article 3), which protects against very serious abuse and neglect. The Covid-19 pandemic has seen people detained face delayed release, while others have been released from hospital without the support they need as a result of changes to NHS Continuing Healthcare in England (read more about hospital discharge during Covid-19 in our Explainer). People have also faced isolation and lack of support where visits have been limited or banned. All these situations infringe on the right to be free from torture and inhuman and degrading treatment.

  • The right to liberty (Article 5), which is about not being deprived of your liberty for arbitrary or random reasons. Deprivations of liberty are only permitted in certain circumstances, which can include for public health reasons and to stop the spread of infectious diseases. But any restrictions on liberty must be necessary and proportionate (remember this means the least restrictive option to achieve the aims). There are also certain safeguards that should be in place when liberty is restricted, including knowing why your liberty has been restricted, being able to challenge that, and having an independent person review the restriction speedily. A deprivation of liberty means being under constant supervision and control and not being free to leave. A range of lockdown restrictions may touch on the right to liberty. To be a breach of the right to liberty these restrictions must be a deprivation of liberty and for that to not be allowed by a law. Even if a law does allow the deprivation, it must also be necessary and proportionate, and the safeguards must be in place; without these is could also be a breach of the right to liberty.

  • The right to non-retrospective punishment (Article 7) which requires criminal offences to be known by the public. This means the changes should be foreseeable and accessible. The new criminal offences that have been created by lockdown Regulations, the lack of clear promotion about the law and the confusion between the Regulations and Guidance is problematic. See previous versions of our Lockdown and Police Powers Explainers (at the bottom of this page!) to understand more about the criminal offences introduced during lockdown.
  • The right to free assembly (Article 11), which covers the ability to gather in public spaces. This covers issues related to people’s ability to meet with others and includes participating in protests. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate. There has been a lot of discussion about whether the various lockdown Regulations have tried to restrict the right to protest, particularly considering the Black Lives Matters movement. Other types of gatherings have also raised questions, e.g. in November the Regulations in England at the time provided some allowances for Remembrance Sunday commemorative events.

  • The right to respect for private and family life (Article 8), which includes participating in the community, relationships with others, and maintaining contact with family. Restrictions on being able to see other people, particularly restrictions on visits to hospitals and care homes, impact this right as it limits our ability to maintain relationships with our loved ones. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate. There have been a lot of questions about the extent to which various Regulations have met this right; and importantly whether guidance and policies that have been put in place have been disproportionate. For example, there is considerable questioning of restrictions on visiting that have been put in place by many care homes and residential units, and the lack of clarity from the government on how to uphold this right. Read more about this in our Human Rights Officer Eilidh’s blog on seeing visiting policies as a human rights issue.

  • The right to manifest religious beliefs (Article 9) by attending places of worship and similar. At different stages in lockdown, places of worship have either been closed completely or religious services ordered to stop. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate. There have been different kinds of restrictions of this right under lockdown Regulation. There have been closures on places of worship and permitting places to open for private worship but not wider ceremonies. Continued restrictions on places of worship raise concerns under this right. Religious leaders have recently launched a judicial review challenge against the closure of religious buildings on human rights grounds – you can read about this here.
  • The right to education (Article 2, Protocol 1), meaning a right to effective education within the UK's existing educational institutions. It relates to primary, secondary and higher education. School closures in response to Covid-19 and the resulting move to online delivery of education has disrupted the right to education.
  • The right to not be discriminated against in the enjoyment of these human rights (Article 14). For example, disabled people may require adjustments to ensure the rules on lockdowns are not applied in a discriminatory way. Another issue that has been raised is Do Not Attempt Resuscitation decisions, and how there have been reports of these placed on people without their input during Covid-19. Read more on this in a blog by our Director, Sanchita. The health and care regulator in England, the Care Quality Commission, launched a review into this issue in November 2020 – read more about this here.

What does this mean for people?

The lockdown has impacted our lives in lots of different ways. It means many people have been able to see loved ones much less often and that many people cannot move about as freely as they once could. The impact of this on all our human rights is wide-ranging. It is vital the Government and public bodies think about our human rights when they make decisions about Covid-19.

Different charities and organisations have raised concerns about the impact of the lockdown restrictions on our human rights, especially they way in which many of the laws have been introduced without being debated in Parliament or communicated clearly with the public. When the Coronavirus Act was reviewed in September, we joined other charities in calling on the Government to commit to preserving people’s human rights and to ensuring democratic oversight of the law. You can read more about this here.

The UK Parliament’s Joint Committee on Human Rights (JCHR) has raised concerns about the Regulations and their enforcement by the police. On the 19 March 2020 the JCHR started an Inquiry into “The Government’s response to COVID-19: human rights implications.” The JCHR Inquiry finished accepting evidence from the public and experts in writing on 22 July. We at BIHR submitted evidence from three different groups who told us about their experience of health and social care during Covid-19. Click here to read the evidence we submitted.

The JCHR published its findings on 21 September 2020. The reports are available here. 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.

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".

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.

Between March and November 2020, we regulally updated our Lockdown and Police Powers Explainers to reflect the frequent changes to the law across the four nations of the UK. Our new Lockdown and Human Rights Explainer (above) replaces these, and we are no longer updating them. You can however still read them to learn about what the laws on lockdown and police powers were, and you will find all previous versions of the Explainers at the bottom of each page below: