Human Rights: lockdown and digital surveillance
The Coronavirus Act is one of the most repressive pieces of legislation ever enacted by government. Scope talks to NI Human Rights Chief Commissioner Les Allamby about the implications.
We ask him how can the scrapping of events, the closure of businesses and the suspension of such cherished freedoms as freedom of movement and freedom of assembly be reconciled with a commitment to human rights?
He says: “The legislation imposes the most far-reaching restrictions on our freedoms I’ve known in my lifetime. The only parallel is times of war, and I’m not sure that even then the restrictions were as far reaching as these ones are.”
However he explained that human rights principles do provide a framework for these kinds of measures and that UK law, and further legislation in Northern Ireland was consistent with that.
These are called the Siracusa principles, which were drawn up in 1984 amidst concerns that some governments were introducing Martial Law under spurious pretexts.
They spell out the circumstances where governments can legitimately suspend some rights in the face of emergency and lay down checks and balances to prevent abuse.
Mr Allamby said: “There must be a genuine emergency, and I don’t think there’s any doubt about that in the current circumstances. The severity and duration of measures should be no more than is necessary and strictly proportionate. The necessity of each measure must be assessed individually and subject to prompt and regular review.”
For the UK as a whole the legislation will be reviewed in six months and measures in Northern Ireland are being examined every three weeks.
He says that effective remedies are available where measures are not strictly required and gives the example of the rights of appeal for fixed penalty fines. He also cites the debates over the closing of cemeteries and churches as further evidence of the principles being respected.
“The important thing to note is that human rights do not take a back seat in an emergency – they actually provide the framework for dealing with it.”
The Human Rights Commission has been very active during the lockdown. It got involved when the withdrawal was announced of abortion services which were planned to start on 1 April. The Chief Medical Officer has since confirmed that abortions will go ahead.
It worked to ensure that tenants have security of tenure during the lockdown, taking up a number of individual cases and it has also stepped in with others to assist asylum seekers, ensuring that they have access to free school meal payments or vouchers.
But Mr Allamby has concerns.
“A big one for us is how older people have been affected – particularly those in care and residential homes. Frankly, we’re not surprised that this has been very badly handled by a number of countries, not just the UK. I know it is easy to be wise after the event, but we should have known from the start that older people would bear the brunt. And we should have put a ring of steel around care homes.
“This didn’t surprise me various reports on transforming and funding adult social care in both community and residential settings have been produced over the past couple of decades and have been ignored. Social care has been badly cut and the issue has been neglected for many years. To suddenly expect a change of pace was not realistic.”
Mt Allamby expects the eventual death toll from care and residential homes to account for at least half the total of Covid-19 fatalities in Northern Ireland.
He believes more could be done, even at this late stage – by moving testing facilities to the car parks of nursing homes, for example. “That’s one example of simple things that could be done now,” he said.
There are further concerns about any potential proposals in the easing of lockdown that would see restrictions based on a person’s age.
He said: “Older people are individuals and should not be treated as a homogenous block. People over 70 include some who need to isolate on account of vulnerabilities and others who do not.”
“If aged-based restrictions were to be introduced that would be discriminatory and would lead to questions around the basis of why everyone of a certain age was treated in a certain way. Any such blanket approach would have to be objectively justified”
Mr Allamby said that there was potential for a legal challenge to these kinds of measures but he would prefer to see any disputes resolved by negotiation and discussion with government rather than through the courts, which would involve a lengthy process.
The Human Rights Commission is also starting to look at how we emerge from lockdown – and there are two major causes of concern.
The first is how we are going to pay for the enormous amount of public expenditure, which has been committed.
After the 2008 banking collapse the government introduced austerity – which effectively meant that those least able to bear the burden took the biggest hits.
Mr Allamby said that any response should be progressive – ie ensuring that the greatest burden is borne by the better off.
The other concerns the use of digital surveillance.
The UK government is trialling an app in order to track and trace the virus and isolate those who have symptoms. Those with concerns about how the data might be used are unlikely to be reassured by the fact that the official explanation on how it will be deployed has been issued by the National Cyber Security Centre rather than the NHS. The National Cyber Security Centre is part of GCHQ.
Mr Allamby said: “It is clear that there is a benefit to testing and tracing. The issue is around proportionality. We need transparency, particularly around what data is being held and what will be done with it afterwards. Government has not always been open about what data it keeps.
“Personally I will need to be very deeply convinced before I adopt the app and would want to know exactly what purpose will be used with my data. I want more than to see an official standing behind a podium giving reassurance. I’d want to see the fine detail.”
He has concerns around the potential for freedoms we take for granted being subverted without our knowledge.
There is also the question of how the app might subsequently be used. What if, for example, as has been speculated in the press, your right to travel might depend on you having such an app to prove you have not been in contact with anyone with Covid-19?
Mr Allamby says this raises fundamental philosophical and political issues around our freedoms.
Watch this space.
The Commission’s office is currently closed, but staff are still working. Details on how to contact the Commission are available via the website at https://www.nihrc.org/
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