The coronavirus (COVID-19) has turned most people’s lives upside down. One of the ways the UK and Scottish Governments have responded has been to give the state a range of new powers. This blog highlights some of the main human rights questions raised by these powers and the future response to the crisis. The issue of mobile data tracking and privacy will be discussed in a separate blog.
Human rights in the UK and Scotland
Like most democracies, the UK has signed up to a number of human rights treaties.
The most important one is the European Convention on Human Rights. The Convention protects rights like the right to liberty, the right to private and family life, freedom of expression, and freedom of assembly.
Crucially, these protections apply directly in UK law due to the Human Rights Act 1998 and the Scotland Act 1998. This means that people can use the Convention to challenge human rights breaches in the courts. It also requires public authorities, such as the police, local authorities and health services to respect and protect the rights in the Convention.
A key point is that most of the Convention rights are not absolute. They can be subject to proportionate restrictions which are, “necessary in a democratic society”. Individual Convention rights also have to be weighed up against each other.
Article 15 of the Convention also allows states to derogate from their obligations, “in time of war or other public emergency threatening the life of the nation.” Derogations need to be proportionate and clearly linked to the emergency in question, and must be notified to the Council of Europe.
In common with most countries, the UK decided to “flatten the curve” of the COVID-19 pandemic by introducing social distancing measures.
These were initially recommendations but are now part of much wider emergency legislation – the UK wide Coronavirus Act 2020 and accompanying Scottish Regulations, and the Coronavirus (Scotland) Act 2020.
Restrictions on movements and gatherings
The Scottish Regulations restrict public gatherings of more than two people. People are required to stay home unless certain exceptions are met (e.g. the need to obtain basic necessities). Failure to comply is a criminal offence. People who do not move on or go home when directed to do so by the police or other relevant person could be fined if they do not provide a reasonable excuse for their behaviour.
The restrictions clearly interfere with human rights such as the right to private and family life and freedom of assembly. However, the consensus is that these are justified by the seriousness of the current situation.
For example, the Scottish Human Rights Commission (SHRC) suggests that they are proportionate given the public health emergency and the fact that they expire after 6 months. It argues, though, that there needs to be continued oversight. It also stresses that the police should not go beyond their legal powers (for example by enforcing non-binding public health guidance).
The Scottish Ministers have been given wide powers which allow people to be detained in quarantine.
These interfere with human rights such as the right to liberty. The main issue is whether they are proportionate.
The SHRC’s view is that:
“… it is particularly important that any powers are time limited, subject to review, subject to external scrutiny and monitoring and are explicitly linked to the need to control the spread of coronavirus.”
The SHRC raised concerns regarding the mental health measures in the UK-wide Coronavirus Act 2020. These include:
- longer periods of emergency detention, and
- making it simpler for securing short-term detention certificates and compulsory treatment orders.
These measures impact on the right to life, freedom from torture, inhuman or degrading treatment, right to liberty, right to fair trial, right to respect for private and family life.
During consideration of the Legislative Consent Motion on the UK-wide Act, Michael Russell, the Cabinet Secretary for Constitution, Europe and External Affairs said:
“There are provisions on mental health in the bill that are severe in terms of what could happen. The intention is that those powers will be used only when there is a shortage of staff, and when the system could not operate unless alternative powers were available. However, it would be a very sparing use of the powers. That is part of the reporting process. I would expect that we would want to—and should—report when those powers have been used, so that we are aware that they are being used, and so that they are examined in all the circumstances. I give a commitment that we will endeavour to do so.”
During consideration of the Coronavirus (Scotland) Bill, the Cabinet Secretary confirmed:
“I made commitment during the LCM process—which I am glad is on record—that we will report, in detail, on the use of those powers, that we will make sure that that reporting covers the whole country, and that we will engage the Mental Welfare Commission.”
The Scottish Government has issued a note to clarify how the UK Act will impact on mental health legislation in Scotland, and confirming that, currently there have been no changes to the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003.
National organisations representing services delivering violence against women and girls services across the UK have raised concerns. They highlight that perpetrators may use the infection control measures as a tool for carrying out coercive and controlling behaviour.
Accessing support for women and children experiencing domestic abuse may be difficult due to the social isolation measures in force. It is feared that there is likely to be a higher demand for specialist support, as well as funding challenges and staff shortages during the pandemic.
The organisations called for a range of actions including:
- increased funding
- safeguarding advice for those who experience harm at home
- representation of women in the political response, to recognise that women will be disproportionately impacted as they are over represented in the care sector, more likely to be in low paid work, more reliant on social security and more impacted by poverty.
On 31 March 2020, the Justice Secretary said ‘You are not alone’, and announced grants to Scottish Women’s Aid (£1.35 million over 6 months) and Rape Crisis Scotland (£226,309 over 6 months). The aim is to ensure that victims still have access to methods of reporting crimes during the crisis including using online video platforms, text messaging and phone calls.
Ruth Maguire MSP proposed a Stage 2 amendment to the Coronavirus (Scotland) Bill to create a duty on Ministers to “have regard to opportunities to advance equality”, reflecting mainstreaming obligations under the Equality Act 2010. The aim was not to introduce reporting obligations during this crisis, but, to “ensure that Scotland’s efforts to eradicate gender inequality lose as little ground as possible during it”. The amendment received cross party support.
How will these measures be reviewed?
The UK-wide Act provides for a six-month parliamentary review on the temporary provisions, with a debate and vote in the House of Commons on extending those provisions for a further six months. The UK Act has a time limit of two years.
The Scottish Act requires Ministers to report on the provisions of the Act to the Scottish Parliament every two months. The Scottish Act will also expire in six months, on 30 September 2020, but can be extended by Ministers by two six monthly periods, via regulations, up to a final date of 30 September 2021.
The Scottish Parliament has yet to agree a proposal for scrutinising the Scottish Government’s response to the coronavirus. Anas Sarwar MSP has proposed a Coronavirus Oversight Committee made up of committee Conveners, which Michael Russell said the Scottish Government is happy with.
Two Westminster committees have launched inquiries:
- The Joint Select Committee on Human Rights on the human rights implications. The deadline for submissions is 22 July 2020.
- The House of Commons Women and Equalities Committee on the impact on the protected characteristics under the Equality Act 2010. The deadline for submissions is 30 April 2020.
Angus Evans, Civil Justice Senior Researcher, and Nicki Georghiou, Equalities and Human Rights Senior Researcher