Joint Committee on Human Rights: COVID-19 report

The JCHR has today (21 September) published a detailed and extensive report into the human rights implications of the Government’s response to COVID-19, ahead of the first 6-monthly review of the Coronavirus Act 2020.  The full report can be found here; for those in a real hurry,  I reproduce the conclusions and recommendations below (the paragraph numbers relate to paragraphs in the report; the words in italics are the recommendations):

The Lockdown Regulations 

1.It is important that there is clarity for the public in relation to any criminal laws, and particularly laws relating to the lockdown. Information must be accessible to disabled people, especially those with cognitive impairments. (Paragraph 52)

2.More care must be taken by the Government to distinguish between advice, guidance and the law, in media announcements as well as in official online sources. There must be certainty—for Government, the public as well as lawyers and the police–as to what is prohibited by the criminal law. In particular, more must be done to make the up to date regulations themselves (not only guidance) clearly accessible online, particularly as the law has changed, on average, once a week. It ought to be straightforward for a member of the public to find out what the current criminal law is, nationally and in their local area, without having to trawl through multiple sets of confusingly named regulations. (Paragraph 53)

3.Nonetheless, it is imperative that Government provide sufficient warning of changes to the law, and coordinate with appropriate bodies, so that police forces and bodies such as the NPCC and CoP have time to understand and explain those changes (Paragraph 57)

4.It is unacceptable that many thousands of people are being fined in circumstances where (a) the lockdown regulations contain unclear and ambiguous language, (b) there is evidence that the police do not fully understand their powers, (c) a significant percentage of prosecutions have been shown to be wrongly charged, (d) there has been no systematic review of FPNs and (e) there is no appeal or review provided for under the Regulations. (Paragraph 61)

5.There is currently no realistic way for people to challenge FPNs which can now result in fines of over £10,000 in some cases. This will invariably lead to injustice as members of the public who have been unfairly targeted with an FPN have no means of redress and police will know that their actions are unlikely to be scrutinised. The Government should introduce a means of challenging FPNs by way of administrative review or appeal. (Paragraph 62)

6.It is important that the rules also allow for reasonable flexibility to ensure that any interference with the right to protest under Article 10 and 11 is only to the extent necessary and proportionate. It is important that there is a consistent approach taken to preventing gatherings whether they be VE Day celebrations or Black Lives Matter protests. (Paragraph 63)

Health and Care

7.In order to prepare for further waves of Covid-19 or future pandemics, the Government must take steps to ensure that the allocation and prioritisation decisions and policies relating to the provision of PPE are evidence-based and non-discriminatory. (Paragraph 72)

8.The blanket imposition of DNACPR notices without proper patient involvement is unlawful. The evidence suggests that the use of them in the context of the Covid-19 pandemic has been widespread. The Court of Appeal has previously held that there is no legal requirement for the Government to implement a national DNACPR policy. However, the evidence suggests that the absence of such a policy has, in the context of the pandemic, led to systematic violation of the rights of patients under Articles 2 and 8 ECHR. The systematic nature of this violation means that it is now arguable that the Government is under such an obligation. Whether or not the events of the pandemic have changed the nature of the Government’s legal obligation, we consider it would assist in the protection of patients’ Article 2 and 8 rights if the Government did now set out such a policy. Such a policy should make clear, amongst other things, that DNACPR notices must never be imposed in a blanket fashion by care providers; the individuals must always be involved in the decision-making process, or where the individual does not have capacity, consultation must take place with persons with an interest in the welfare of the patient. It is not clear whether the documents promised by the Secretary of State will meet these requirements. (Paragraph 76)

9.We are concerned that decision-making relating to admission to hospital, in particular critical care, for adults with Covid-19 has discriminated against older and disabled people. We are also concerned that decisions made to support the capacity of the NHS to provide care for patients with Covid-19 have been made without adequate consideration of the impact on particular groups of others whose treatments have been cancelled or postponed in consequence. The Government must ensure both that clear national and local policies are in place to govern prioritisation of healthcare provision during a pandemic, and that those policies do not discriminate unlawfully. (Paragraph 83)

10.The decision to reduce care provision to certain individuals is a very serious matter, particularly in circumstances where care needs may have increased during the pandemic. The Government must justify its reasoning for the continuation of the powers to trigger easements to social care provision, and they must only continue if absolutely necessary and proportionate. (Paragraph 89)

11.If this power (which has barely been used thus far) is to continue beyond the six-month review period, the Government should issue specific guidance about meeting human rights standards in the discharge of obligations under the Care Act 2014 and develop guidance as to the content required of human rights assessments. (Paragraph 90)

12.The Government must ensure that local authorities and care providers are able to meet increased care and support needs during and resulting from the pandemic. (Paragraph 91)

13.We question whether removing vital protections for children was a proportionate response to the challenges posed to the children’s social care system by Covid-19. The Government must justify its reasoning for the continuation of these powers, and they must only continue if they can be shown to be absolutely necessary and proportionate. (Paragraph 94)

14.The very high number of deaths from Covid-19 in care homes is a matter of deepest concern to us and engages the operational duty to secure life (Article 2 ECHR). The causes behind it are complex and we have not been able to devote the necessary time and attention to address them fully in the context of this report. It is, however, imperative that they be interrogated thoroughly in order to meet the state’s procedural obligations under Article 2. We urge the Government to ensure that addressing the issue of Covid-19 related deaths in care homes is dealt with as a priority in any inquiry or review they undertake (see chapter 9 below). (Paragraph 97)


15.Lockdown restrictions in prisons must be subject to a reasoned and transparent human rights proportionality assessment and only used for the minimum time necessary. Children should not under any circumstances be subject to lockdown restrictions which amount to solitary confinement. (Paragraph 109)

16.Given the risk of further waves of the pandemic, the Ministry of Justice should carry out a full evaluation of its Covid-19 policy in prisons, young offender institutions and secure training centres as a matter of urgency and issue guidance on how to respond to future outbreaks. (Paragraph 110)

17.While short scrutiny visits by the prisons’ inspectorate have proved an important source of information on what has been happening inside detention settings during the pandemic, continuing restrictions on inspections mean that human rights abuses may be going undetected in these settings. It is imperative that full inspections resume, safely, as soon as possible. (Paragraph 112)

18.Blanket visiting bans in prisons are incompatible with the right to family life (Article 8 ECHR). Any restriction on visiting rights must be shown to be necessary and proportionate in each individual case. As soon as it is safe to do so, prison visiting must resume as a matter of priority in all prisons. (Paragraph 115)

19.In accordance with the Government’s commitments, in-cell telephones and facilities to make video calls must be installed in all prisons and young offenders institutions without delay, so that in the event that it is necessary to restrict prison visits again in the future, the technology is available to allow prisoners to maintain contact with their families and loved ones. (Paragraph 116)

20.At the time of writing the Government had not yet responded to our July 2020 report “Human Rights and the Government’s response to COVID-19: children whose mothers are in prison”. We urge them to commit to implementing our recommendations from this report in full at the earliest opportunity. (Paragraph 120)

21.We are currently awaiting the Government’s response to both our previous reports on the detention of young people who are autistic and/or have a learning disability. Those reports exposed that young people in these settings were subjected to significant and frequent violations of their human rights. Our recommendations in these reports must be implemented in full as matter of urgency to bring these human rights violations to an end. (Paragraph 125)

22.The continued ability of the DHSC to bring changes to the Mental Health Act 1983 into force after the first six months of the CV Act must be justified or the powers repealed. If the powers are maintained in any way, the DHSC must publish the guidance to accompany them so that it is possible for there to be scrutiny of their provisions. The Government should also make clear what steps it is taking to bring forward the White Paper promised to respond to the Independent Review of the Mental Health Act 1983. (Paragraph 128)

23.The Mental Health Tribunal should be supported to be able to discharge its functions with hearings conducted by three member panels, by video, wherever possible, and to enable the return of pre-hearing examinations, to minimise the impact of what has been a substantial diminution in the safeguards provided by the Tribunal. (Paragraph 130)

24.We agree with Mr Justice Hayden that Deprivation of Liberty Safeguards (DoLS) provide ‘indispensable safeguards’ for those who are subject to them. Indeed, DoLS are more important than ever when those who lack capacity to consent to new restrictions on their freedoms may be subjected to such new restrictions intended to protect their right to life. DoLS provide a framework for verifying that such restrictions are necessary and proportionate. It is vital that DoLS authorisations are in place to ensure persons deprived of their liberty on the ground of mental incapacity have safeguards in place and the means to challenge their deprivation of liberty. (Paragraph 133)

25.It is essential that Liberty Protection Safeguards are introduced in April 2022 and that there is no further delay. Resources must be allocated to ensuring that the new safeguards are implemented effectively, and that all those involved are properly trained, within the new timetable. (Paragraph 134)

26.We hope that future DHSC guidance on visiting in care homes will allow for a more proportionate approach to visiting which minimises any necessary interference with residents’ right to family life (Article 8 ECHR). The Government must ensure that care homes are not implementing blanket bans on visiting. Restrictions on visiting rights must only be implemented on the basis of an individualised risk assessment and such risk assessment must take into account the risks to the person’s emotional wellbeing and mental health of not having visits. (Paragraph 136)

27.Where there is no reasonable prospect of removal within a reasonable timeframe, immigration detention ceases to be lawful. The Home Office should keep cases under review to ensure that individuals are not detained unlawfully. (Paragraph 140)

28.For those individuals in immigration detention, as in other detention settings, steps taken to prevent the spread of the disease into and within detention settings should be reviewed at regular intervals and particular care should be taken in respect of individuals who are considered to be especially vulnerable to Covid-19 (Paragraph 141)

29.The JCHR’s previous report on immigration detention highlighted the importance of making detention decisions independent of the Home Office to ensure that the initial decision to deprive a person of their liberty is robust and fully justified. The Committee recommended that “in cases where detention is planned there should be properly independent decision-making” and that detention “decisions should be pre-authorised by a person or body fully independent of the Home Office.” We urge the Government to implement this recommendation: in the context of the pandemic it is more important than ever, given the risk to immigration detainees’ health. (Paragraph 142)

30.There is no safeguard as to the length of storage of the biological information collected under powers relating to potentially infectious persons, nor safeguards relating to its destruction, and future use. The Coronavirus Act should be amended to ensure this medical data is subject to adequate safeguards. (Paragraph 148)

31.It is hoped that the vast majority of “potentially infectious” people will comply with public health advice, and that legal enforcement will not be necessary in such cases. In such circumstances, the Government must justify the continued need for an executive power to deprive a wide cohort of persons of their liberty. Article 5(1)(e) ECHR allows states to detain individuals “for the prevention of the spreading of infectious diseases … “. Although the case law on Article 5(1)(e) is very limited in this context, it is clear that the courts will consider whether less severe measures have been considered and found to be insufficient to safeguard the public interest, before using detention as a last resort. The Government must justify why it is necessary and proportionate for these extraordinary powers to remain law. In particular, the Government must provide evidence to Parliament that these powers are necessary for the prevention of the spread of Covid-19 and that the power to prosecute is not being misapplied. In the absence of any clear evidence to support the retention of these powers, they ought to be repealed. (Paragraph 154)

32.In order to allow Parliament to assess the Government’s use of these significant powers, the Government must publish data setting out the number of individuals who have been subject to these powers, the number of individuals who have been charged under the new offences, and any successful appeals there have been against the use of these powers. (Paragraph 155)

33.There are some safeguards built into the powers, but if these powers are to be retained beyond the six-month review, these safeguards should be strengthened

a)The definition of “potentially infectious person” should be reviewed to ensure that its scope is not too wide and the powers are not open to abuse.

b)The Act provides that these powers may only be exercised where necessary and proportionate in the interests of the person, for the protection of other people, or the maintenance of public health. The Government should ensure its guidance is up to date and available for officers regarding the application of this test.

c)There should be minimum requirements for the designation of a “public health officer” to ensure only experienced and qualified persons are able to exercise such powers.

d)There should be robust safeguards as to the length of storage of the biological information collected, its destruction and future use.

e)The only right of appeal provided for is in relation to powers exercisable post-screening and assessment. Individuals should be given a right of appeal to the Magistrates Court in relation to all powers, particularly given the option of judicial review is not an immediate and effective remedy for detained persons.

f)Guidance from the Department for Health should be incorporated into the Act to state that if someone lacks the capacity to make an appeal, it can be made by someone on their behalf even if the person is not objecting or does not understand they can make a challenge. (Paragraph 156)

Contact Tracing

34.It is welcome that the Government decided to stop the development of the centralised model for their contact tracing and is now working on a decentralised model instead. However, privacy issues remain. To build trust with users, which has been shaken by high-profile missteps, the Government should introduce legislation which defines what data will be collected, how long it can be held, when it will be deleted. Such legislation should include a ban on contact tracing data being shared for any purpose other than combating the spread of Coronavirus. (Paragraph 167)

35.Manual contact tracing is the main component of the UK’s test, track and trace system. This still involves data being collected; indeed, that data is arguably more sensitive than that collected by the app. Whether that data is gathered digitally or manually, the legislation should limit how long manually gathered data can be held, define what type of information can be gathered, confirm when it will be deleted, and restrict it from being shared for any purpose other than combating the spread of Coronavirus. (Paragraph 168)

Children and the right to education

36.The Government has obligations to ensure that all children have access to education and that the best interests of the child are a primary consideration in decision-making. Thus, the provision of education and the best interests of the child should be at the forefront of policy and decision making. (Paragraph 177)

37.Our evidence suggests that whilst school closures have affected all children, these closures have had different impacts for different groups of children. The effects of these different impacts – and how best to mitigate against unwanted impacts – should be factored into the Government’s policy and decision-making. The disparity in education accessed by different groups of children suggests that there should have been better guidance to schools from the Government around continuity of education. The unequal access to education for disadvantaged children is of real concern and the Government must ensure that it does not lead to wider inequality in society. (Paragraph 178)

38.In particular, school closures have created specific barriers to children with SEND’s access to their right to education. This is really concerning. We urge the Government to look into the effect that school closures have had on young people with SEND and to address any barriers to them returning to schools and accessing education. Where it is not in the best interests of the child to be in school, for example if they are shielding, appropriate support should be provided to them so that they can learn from home. (Paragraph 179)

39.Some of these changes to children’s right to education were made through press announcements alone or through the use of Notices or Directions issued under powers in the Coronavirus Act. The Government should not interfere with human rights without a clear legal base and should be clear as to whether it has legally changed children’s rights or is merely changing messaging—such differences have been obscured during the Coronavirus crisis communications and this makes it difficult for parents and children to understand their rights. Whilst Government explanations, comments and press notices can be useful tools to explain legal changes, the Government must make it clear as to whether a new announcement, such as one purporting to “close schools” is made under legal powers to direct the closure of schools or is merely advisory—the rule of law is threatened if the Government obscures the legal status of its announcements. Further, legal documents—including Notices and Directions—which may interfere with human rights should be easily accessible. This is crucial for compliance with both the rule of law and human rights. The Government must ensure that all Notices and Directions interfering with human rights are published and readily available or signposted on (Paragraph 180)

Access to Justice

40.The judicial approval of warrants is a necessary safeguard against unjustified interference with private and family life (Article 8). Extending the period of time before judicial approval of an urgent warrant is required could prolong any unjustified interferences with Article 8. As part of the review process, the Government should provide to Parliament data on how many urgent warrants have been used during the emergency period, and the timeframe within which judicial approval was obtained. The Government should also inform Parliament whether the Investigatory Powers Commissioner has made a request that the Secretary of State vary the time allowed for urgent warrants, and the outcome of this request. (Paragraph 184)

41.Whilst we welcome the expansion of technology to overcome the severe challenges facing the justice system, we are concerned to hear of these barriers to the public accessing court hearings. Virtual public galleries must be implemented to ensure scrutiny of criminal proceedings and respect for the principle of open justice. Public access should not be subject to the permission of judges. This is an important safeguard to ensure the right to a fair trial is being upheld. (Paragraph 187)

42.The expansion of live link technology in courts is to be welcomed as a means of avoiding delays in the criminal justice system. However, if such measures are to continue, the Government must ensure that digitally excluded persons, or those who are vulnerable, can participate effectively and are not disadvantaged. The technology must also be of sufficient quality to ensure a fair trial. It is crucial that defendants are provided with a direct and confidential line of communication with their representatives, just as they would have in person in court. The public must also be able to attend virtually to ensure the principle of open justice is preserved and to allow for scrutiny of proceedings. (Paragraph 190)

43.Given these significant delays, where children turn 18 between the commission of the offence and their sentencing, they should be dealt with as children in the youth courts. (Paragraph 192)

44.Whilst it is clear that the European Convention provides that defendants are entitled to appear before court within a reasonable time period, determining what is “reasonable” in the midst of a public health emergency is difficult. Delays are inevitable, and the margin of appreciation afforded to states during the pandemic is likely to allow for significant leeway given the exigencies of the situation, but prolonged pre-trial detention must be avoided. As trials are being adjourned for significant periods of time, extensions to custody time limits must be reviewed to ensure that persons who have not been convicted are not being held in detention for lengthy periods of time. All defendants have the right to a timely trial before an independent and impartial tribunal and this right must be respected and provided for as speedily as possible. (Paragraph 198)

Procedural obligations to protect the right to life

45.The Government should give serious thought to establishing a Commissioner or Office of Article 2 compliance, to ensure that the correct processes are followed in cases requiring Article 2 investigations, without relying on bereaved families for ensuring appropriate follow-up. Such a body could ensure that lessons are learned, and that best practice is disseminated to relevant bodies to prevent future unnecessary deaths (Paragraph 203)

46.The absence of any imminent inquiry into Covid-19 deaths means that in England and Wales, and in Northern Ireland, inquests will be the principal means of discharging the UK’s procedural duties under Article 2. Coronial courts will have to progress as best as they can all matters requiring a procedural Article 2 investigation in a given case. (Paragraph 206)

47.The most urgent of the procedural obligations in the Covid-19 context is to ensure that lessons are being learned as soon as possible so as to avoid unnecessary deaths. It is therefore crucial that some form of swift lessons learned review is undertaken as soon as feasible and incorporated in the Government’s planning and response to any further waves of the pandemic. (Paragraph 210)

48.Although it is reassuring to know that the Government values lesson learning and that there are a number of systems in place for regular investigations into deaths in health and care settings, this is not a sufficient response to their duties under Article 2. The systems referred to by the Government are not designed to review a complex and wide-ranging response to a pandemic. The response to the Coronavirus outbreak has necessarily not been equivalent to a standard response to an individual death in NHS care. The response has affected the entire population in profound (and profoundly different) ways. Therefore, the reviews and processes in place for individual deaths are obviously ill-adapted to the sort of review required in relation to a complex and wide-ranging response to a pandemic. (Paragraph 211)

49.The Government should immediately organise a quick, interim review into deaths from Coronavirus to ensure that key lessons are learned as soon as possible, and in advance of any second peak in the Autumn/Winter. This review should be swift, independent and must be published. (Paragraph 212)

50.It is very likely that an inquiry will be needed in order to fulfil the State’s obligations under Article 2 ECHR to investigate structural issues affecting Covid deaths. We welcome the Prime Minister’s announcement that there will be an inquiry. If such an inquiry is to be effective in learning lessons in time to save lives, it would ideally have clear, focussed objectives and be time-limited. Such an inquiry should include consideration of (i) Covid-19 deaths in a detention setting; (ii) Covid-19 deaths of healthcare/care workers and PPE; (iii) Covid-19 deaths in care homes due to early releases from hospitals; (iv) deaths where the person has been denied access to critical care; (v) Covid-19 deaths of transport workers, the police and security guards due to inadequate PPE. (Paragraph 215)

51.The Government should consider whether there is a need for a more targeted and automated Article 2 inquiry process to enable a more cost-effective, depoliticised and focussed means for the UK to swiftly learn lessons from unnecessary deaths and discharge its right to life obligations. (Paragraph 216)

Accountability and scrutiny

52.We expect any extension to the expiry date of the Coronavirus Act provisions to be subject to parliamentary debate and approval before, not after, any extension comes into effect. The made affirmative should be avoided for such purposes. (Paragraph 221)

53.It is unfortunate that the Government has chosen not to use the powers within the Civil Contingencies Act 2004 or the Coronavirus Act 2020 to legislate. These pieces of legislation were designed to be used in emergencies, and contain specific safeguards to ensure that while the Government can act, its actions are subject to Parliamentary monitoring and approval. These safeguards, along with the opportunity for proper parliamentary scrutiny, are particularly important when human rights are engaged on such a massive scale. The Government must explain why it used the 1984 Act power for legislating rather than the Coronavirus Act 2020 or the Civil Contingencies Act 2004 with all the safeguards that these measures contain. (Paragraph 222)

54.The use of emergency procedures for passing laws should be exceptional, limited to situations where the nature of the emergency itself requires the use of emergency procedures, and should require explicit justification, especially when human rights are at stake. The Government must consider whether a better balance could be struck between the flexibility of urgent legislation and the need for scrutiny by Parliament when legislating to respond to a public health crisis such as this. (Paragraph 228)

55.Major announcements should be made to Parliament rather than through news channels or other press briefings, especially when human rights of so many are to be engaged in so many ways. (Paragraph 230)

[Full disclosure: I have been a specialist adviser to the JCHR for purposes of this inquiry].

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