Government steps to control Covid-19 present serious challenges to basic rights guaranteed by the law

On 11 March 2020, the World Health Organization declared the Covid-19 outbreak a global pandemic and called on states to take urgent action. Many governments consequently introduced an array of monitoring and lockdown measures in order to slow the spread of the virus and relieve the pressure on national healthcare systems. However, the UN Secretary-General António Guterres recently described the pandemic as “fast becoming a human rights crisis”.  These measures met a clear emergency but some governments, such as the Hungarian government, have taken advantage of the situation to adopt wide ranging powers that place the rule of law in challenge.

The Human Rights Landscape

In the UK, the Human Rights Act 1998 (HRA) incorporates the rights and freedoms as set out in the European Convention on Human Rights (ECHR). But in any event the protection of human rights has a long and venerable history in the UK, back to Magna Carta and the Bill of Rights as well as the development of common law rights. Additionally as a member of the EU, the UK adopted the EU Fundamental Charter of Human Rights which replicates and extends existing rights.

The challenge of Covid-19

The global pandemic engages with the most fundamental right afforded by the ECHR, the right to life (Article 2). The UK lockdown measures represent the UK Government’s response to the significant risk to individual’s health and principally their lives. Article 2 requires states to do all that they can to prevent the unnecessary deprivation of life. However, as discussed in the examples below, this challenges many other rights and freedoms afforded by the ECHR and HRA. We discuss just a few of them.

• Under the UK’s lockdown restrictions, individuals are only permitted to leave their homes for a limited number of reasons enforceable by police fines. The over-zealous actions of the Derbyshire police towards citizens exercising in the Peak District in March, were admonished by former Supreme Court Justice, Lord Sumption, who highlighted the serious risk of the UK becoming a “police state”, with police going beyond the statutory limitations. These restrictions clearly engage with individuals’ right to liberty and security (Article 5). However, Article 5 provides a number of exceptions including “for the prevention of the spreading of infectious diseases”.
• Many courts across the UK have closed due to the Covid-19 outbreak. Consequently, hearings are now being held with video conferencing such as Skype. This calls in to question the right to a fair trial (Article 6) and the prohibition of discrimination (Article 14). The Equality and Human Rights Commission has warned of the serious risk that video hearings will discriminate against people with learning difficulties and mental health conditions.
• The lockdown measures are preventing families, not living in the same household, from meeting. This engages with a person’s right to respect for family life and maintenance of family relationships (Article 8).
• Countries including Singapore and Australia have released Covid-19 tracking mobile applications to help prevent further spread of Covid-19. The applications alert users when someone they have recently interacted with contracts Covid-19. These types of application have generated a wealth of privacy concerns (Article 8), including the processing of health data which is a special category of personal data under the GDPR. The UK is reportedly developing a similar solution.
• UK restrictions on social and religious gatherings have prevented worshipers from congregating and attending places of worship (save for funerals which are currently permitted). This engages freedom of thought, conscience and religion guaranteed under Article 9.
• Some foreign governments have used the Covid-19 crisis as justification for censoring the press, limiting the dissemination of information and criticism of state response. Article 10 protects freedom of expression and although false information about the virus may be dangerous, The High Level Panel of Legal Experts on Media Freedom have urged governments to work with, not against, journalists and social media outlets to provide reliable and scientifically informed content.
• Social isolation and lockdown measures are disproportionately affecting certain members of society including those with physical or mental disabilities, women (who are disproportionately affected by domestic violence which has more than doubled during lockdown) and vulnerable children (whose education has been affected). Article 14 prohibits discrimination of the rights and freedoms on the basis of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
• The closure of businesses, the commercial effect of the lockdown restrictions on trade and the consequential loss of goodwill for businesses engages with the right to property (First protocol, Article 1).

Article 15 allows states to derogate from certain provisions of the ECHR in times of public emergency threatening the life of the nation by registering a derogation with the Council of Europe. Interestingly, the UK Government has not done this to date. Clearly the UK Government does not believe it to be necessary, however, the debate on the lawfulness and effect of lockdown measures will no doubt be much challenged as claimants call on rights guaranteed by the HRA and the common law doctrines.

If you would like to discuss any part of this update, please contact David Greene or the Litigation & Dispute Resolution team.

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