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. However, when this response risks the rights of some this makes the situation worse. We take a look at some of the human rights issues involved in the Corona Virus Bill.

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. This Bill is due to be put before Parliament today, 19 March 2020. Although the text of the new Bill is not yet public (when it is, we will post the link here), the government have published a Summary of the Bill which you can read 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 clauses which mean that these powers lapse after 30 days. Right away this therefore raises concerns that the powers 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. You can read our Explainer on the Human Rights Act here.

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 also says that this will be “based on the advice of Chief Medical Officers of the 4 nations”. There is not a lot of clarity on how these powers will be activated, or what the processes for them ending will. For example, with there be sunset clauses? (meaning the powers end after a specific time), will there be review of the time frames?

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:

  1. In order to relieve the burden on front line staff in the NHS and beyond, the power to recommend individuals be detained under the Mental Health Act would be implemented using one doctor’s opinion instead of two. 
  2. The proposed bill would temporarily allow the extension or removal of time limits in mental health legislation. Under the proposed changes, individuals might be released into the community early, or find themselves detained for longer.

The Summary also includes a change to general powers to detain people. It says 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.”

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 spread of 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; there is no argument that some restrictions are allowed in some circumstances. The rights themselves identify these reasons, which can include for the protection of public health. However, this would 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 critera. 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 rights.

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

What does this means for people with mental health issues?

As noted, these 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 high threshold for inhuman and degrading treatment (Article 3 HRA). Inhuman and degrading treatment can never be justified, even on public health grounds.

What happens now?

The Bill will go in front of Parliament today and MPs will decide whether or not it will become law. This process called “royal assent” is expected to be quick (by the end of this month) because of the gravity of the situation. We will be following this closely.

In these times, rights should be uniting at a time when division is too easy. 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 .

Where can I find more information?

  • Keep up to date with the current NHS advice on Corona Virus here.
  • Find out more about the Human Rights Act here.