You can download this Explainer as a pdf here

With the vast changes to health and social care law set out in the Coronavirus Act, it is worth remembering which laws remain (and will remain) completely unchanged no matter what happens during Coronavirus (Covid-19). This Explainer will look at:

  • The Human Rights Act 1998
  • The Scotland Act
  • The Equality Act 2010

These laws still need be upheld every day in Scotland.  

The Human Rights Act

The Human Rights Act (HRA) is the law in the UK that ensures our human rights are respected and protected. It contains the 16 human rights of the European Convention on Human Rights and puts them into our law here at home. These rights ensure that we are all treated with dignity, respect and without discrimination.

The HRA places a legal duty on public bodies (and those delivering a “function of public nature”) in Scotland to respect, protect and fulfil human rights across their actions, decisions, policies and services. The duty on public officials has three parts:

  1. Respect: duty to not breach human rights.
  2. Protect: duty to take action to safeguard people’s rights.
  3. Fulfil: duty to have the right processes and procedures in place, and to investigate when things have gone wrong.

This duty has not been changed by the Covid-19 pandemic, and any decisions made by a public body, including in health and social care settings, must respect and protect human rights.

Importantly, the HRA is a foundational law. This means that all other UK laws should be compatible with the HRA, both on paper and in practice.

Other laws such as the Social Work Scotland Act, the Social Care (Self-directed Support) (Scotland) Act and the Mental Health (Care and Treatment) (Scotland) Act should be applied in a way that respects your human rights. Again, this continues throughout Covid-19, and the Coronavirus Act itself should be applied in a way this is compatible with human rights.

In November 2014, the Scottish Government passed a motion in support of the Human Rights Act by 100 votes to 10. You can read the report here.

For more information on the HRA, please see BIHR’s Explainer: The Human Rights Act

The Scotland Act

The Scotland Act (1998), passed by the UK Parliament at Westminster is the law that set up the Scottish Parliament. The Act is divided into different parts which deal with the different powers of the Scottish Parliament.

The two sections of the Scotland Act mentioned below deal with the human rights obligations of the Scottish Parliament and Scottish Ministers and have not been changed by the Coronavirus Act (2020).

  • Section 57 (2) of the Scotland Act ensures that no member of the Scottish Government can pass any law or do anything which breaches the human rights set out in the European Convention on Human Rights (1950) and the Human Rights Act (1998).

The section states that, “A member of the Scottish Government does not have the power to make subordinate legislation or to do any other act in so far as the legislation or act is incompatible with the Convention rights. “

  • Section 58 (together with Schedule 5) states that Scotland is obliged to respect ‘international obligations.’

In respect of human rights, Scotland’s international obligations are found in the UN treaties Scotland is signed up to as part of the UK. The United Nations Convention on the Rights of the Child or the United Nations Convention on the Rights of Persons with Disabilities are just two examples of Scotland’s international human rights obligations.

The Scotland Act was changed in 2016 after the Smith Commission Agreement to transfer a range of powers to the Scottish Parliament around taxation and welfare.  It has not been changed since and the Section 57 and 58 human rights duties on the Scottish Parliament and its Ministers remain in place during Covid-19.

You can read this part of the Scotland Act here.

The Equality Act

The Equality Act was introduced in the UK in 2010 to advance equality of opportunity for all and protects people from discrimination in the workplace and in wider society. It is against the law to discriminate against, harass or victimise anyone because of what we call ‘protected characteristics’. The 9 protected characteristics are:

  • Age
  • Gender reassignment
  • Being married or in a civil partnership
  • Beingpregnant or on maternity leave
  • Disability
  • Race including colour, nationality, ethnic or national origin
  • Religion or belief
  • Sex
  • Sexual orientation

The Equality Act also places a legal duty on public bodies, called the Public Sector Equality Duty. The public bodies that the duty applies to are listed in Schedule 19 of the Equality Act, and include local authorities, education bodies (including schools), health bodies, police, fire and transport authorities, and government departments. The duty means public bodies must have due regard to:

  • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
  • Advance equality of opportunity between people who share a protected characteristic and those who do not.
  • Foster good relations between people who share a protected characteristic and those who do not.

Meeting this duty involves:

  • Removing or minimising disadvantages suffered by people due to their protected characteristics.
  • Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
  • Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

The Equality Act remains unchanged during Covid-19, so public bodies in Scotland still have a legal duty to address discrimination based on the 9 protected characteristics. This means when accessing public services, it is unlawful for you to be discriminated because of any of the protected characteristics listed above. For example, it would be unlawful for you to have a Do Not Attempt Resuscitation order placed on your medical records without consultation with you, your family or those involved in your care during Covid-19 simply because you are over a certain age or because you have a certain disability. This would be discrimination. Where this arises when accessing a public service, public bodies have a duty to address this.

The Human Rights Act (Article 14) also protects people from discrimination on the above 9 grounds or “any other status” when linked to their human rights.

Which laws have been changed in Scotland?

The Coronavirus Act 2020, which came into force on 25 March 2020 and the subsequent Coronavirus (Scotland) Act made many temporary changes to health and social care legislation in Scotland. For more information on what these changes are and whether or not they are in force now,  please see BIHR’s Coronavirus Hub on changes to law and policy.

What does this mean for people?

The key thing to take away from this Explainer is that, your human rights and equality protections remain in place throughout Covid-19, no matter what changes have been (or might be) made to any other laws.

What happens now?

Going forward, it is really important to remember that the laws discussed here are still in place, and that our rights must continue to be protected. The rights and duties contained within the HRA continue to be a foundation law, and all other laws must continue to be applied in ways which are compatible with our rights.

Where can I find more information?

 

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.