The Covid-19 pandemic has shocked and changed the world. CAJ is convinced that a human rights perspective is essential to both enduring the pandemic and moving into the future. For us, this approach can be summed up in the following imperatives: Protect people, restrict freedom only as necessary, help the most vulnerable, and together prepare for a better world. We are not alone in this as many organisations have argued for a human rights approach to the crisis.
In April, António Guterres, United Nations Secretary-General, launched the UN’s human rights based response to the Covid-19 virus, Covid-19 and Human Rights: We are all in this together. This short document gives a persuasive argument why human rights should be at the centre of the response to the pandemic. It is available here.
The UN’s main thesis is expressed at the beginning: “Human rights are key in shaping the pandemic response, both for the public health emergency and the broader impact on people’s lives and livelihoods. Human rights put people centre-stage. Responses that are shaped by and respect human rights result in better outcomes in beating the pandemic, ensuring healthcare for everyone and preserving human dignity. But they also focus our attention on who is suffering most, why, and what can be done about it. They prepare the ground now for emerging from this crisis with more equitable and sustainable societies, development and peace.”
The document highlights the positive duties on the state to protect the right to life and the right to health and access to health care. It raises the potential threat to civil liberties if temporary restrictions on the freedom of movement are extended beyond what is necessary. It also lists six key human rights messages:
- Protecting people’s lives is the priority; protecting livelihoods helps us do it: We must deal with the economic and social impact alongside the public health response;
- The virus does not discriminate; but its impacts do: Inclusive responses to a global threat to ensure no one is left behind;
- Involve everyone in your response: Participation in open, transparent and accountable responses;
- The threat is the virus, not the people: Emergency and security measures, if needed, must be temporary, proportional and aimed at protecting people;
- No country can beat this alone: Global threats require global responses;
- When we recover, we must be better than we were before: The crisis has revealed weaknesses that human rights can help to fix.
There are some important civil and political rights that are impacted by the pandemic. First amongst these is the Right to Life expressed in Article 2 of the European Convention on Human Rights (ECHR) and enshrined in UK law by the Human Rights Act (HRA). The State must protect life and must be accountable if it fails to do so. CAJ has already challenged the guidance issued by the Chief Coroner for England and Wales suggesting that “an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of personal protective equipment (PPE) to healthcare workers in the country or a part of it”. The Presiding Coroner for Northern Ireland, Mrs Justice Keegan, has assured us in writing that “Coroners in this jurisdiction will have discretion to investigate any death on a case by case basis, and will do so based on the individual merits of each case.”
We have also critiqued the coronavirus emergency legislation and a briefing can be found here: https://caj.org.uk/2020/03/23/covid-19-northern-ireland-and-emergency-law-a-caj-briefing-note/
However, the UN document makes clear that the pandemic has exposed shortcomings in the protection of social and economic rights in particular. We can also see in the shocking statistics how the poor, old, disabled, and people from black and minority ethnic backgrounds suffer serious illness and death from the virus disproportionately. It is also clear that the pandemic has impacted specifically on social and economic rights here in Northern Ireland. Obviously, the disease itself and the necessary responses to it have created unemployment, economic hardship, and illness. However, the point is that the pandemic has exposed the pre-existing frailty of the mechanisms that should have protected these rights better. In effect, the disease has demonstrated existing violations of social and economic rights. As a response, both in the context of the long-overdue development of a Bill of Rights for Northern Ireland and more generally, we should seek to re-open the debate on social and economic (and cultural and environmental) rights.
The advice on a Bill of Rights presented to the Secretary of State by the Northern Ireland Human Rights Commission (NIHRC) in 2008, contained a number of social, economic, cultural, and environmental rights. These were the focus of opposition by some politicians here and the then (Labour) British Government. Their arguments basically claim that such rights take away from the decision making duty of politicians and, anyway, cannot be properly decided by a court.
In fact, the advice itself contains a full explanation of how such rights can be vindicated. On page 165/166, NIHRC notes that: “It is widely accepted … that economic and social rights cannot always impose immediate obligations on states and that economic and social rights frequently impose an obligation of ‘progressive realisation’ rather than one of immediate effect.”
NIHRC also goes on to say: “While progressive realisation does not require that the result sought by the particular right be achieved immediately, it does, however, require that ‘all appropriate measures’ be taken towards achieving the full effectiveness of the right… A duty to ‘progressively realise’ a right also imposes an obligation to move as expeditiously and effectively as possible towards that goal…”
If the social and economic rights in the advice had been enacted, there might not have been such glaring holes in our health and social care systems. Public authorities would have been clearer in their duty to put people’s welfare first and the death toll could have been lower. Those politicians who opposed social and economic rights in the past, and will do so again in the future, should be held to account.
The relevant international treaty is the International Convention on Economic, Social and Cultural Rights (ICESCR), which the UK has long ago signed and ratified. We know that the pandemic is having a disproportionate effect on the poor and vulnerable and has shown that the rights to work (Article 6 ICESCR), to an adequate standard of living (Article 9 ICESCR), to social security (Article 11 ICESCR), and to the highest attainable standard of physical and mental health (Article 12 ICESCR) have been violated in this region. We need to bring these or equivalent provisions into force in domestic law.
In response to the pandemic, we need to say ‘Never Again’, and push forward towards the goal of a rights based society. In that process, a Bill of Rights will be key. The pandemic should give us the impetus to re-open the debate around a Bill of Rights, while the recent establishment of an Ad Hoc Bill of Rights Committee at Stormont should provide us with an appropriate forum where the key issues can be raised.
Through the publication of Covid-19 and Human Rights: We are all in this together, the UN has given us the context and a framework for charting the way out of the current crisis. We must not go back to the way we were before. We must be better.