COVID-19 regulations adopted by the UK government have undoubtedly had a profound impact on human rights. From the right to private and family life to the right to education, national and local measures have been affecting almost every part of daily life.
Ordinarily, when the government wants to introduce new laws, Parliament will have to go through the process of debating them. This process is crucial because it means that democratically-elected Members of Parliament (MPs) are able to scrutinise legislation and present any concerns or include amendments that may affect their constituents. As a result of this, legislation is often more effective and better suited to the people it will apply to. There is additionally a sense of added legitimacy, as MPs are acting as representatives of the people and thus including them in decision-making. However, COVID-19 regulations have largely been adopted through the process of delegated legislation. This means that the government is able to introduce new rules without the need to have them scrutinised by Parliament. The power to do this is laid down in various Acts of Parliament, such as the Coronavirus Act 2020, which provides the government with "genuinely unprecedented" powers.
Delegated legislation is often ideal to use in scenarios such as the coronavirus crisis, as it allows for new laws to be adopted quickly and easily. This means that the government is able to flexibly adapt and respond to changing circumstances on the ground.
CRITICISMS OF THE CURRENT APPROACH
Many MPs have criticised the extensive use of the powers that have been given to the government. The Commons Liaison Committee voiced concerns over the use of emergency powers, mostly in relation to their human rights implications, and is encouraging the government to consider introducing greater parliamentary scrutiny. It is especially important that laws that restrict freedoms are subject to debate and scrutiny by MPs, to ensure that there are legitimate grounds for such restrictions. It is far more likely for a law to be accepted by people within a community if they know that the law was approved by someone that has been democratically-elected to represent them. Such laws thus tend to be more effective in practice.
Former Lord Chief Justice of England and Wales, Lord Thomas, has also called for greater parliamentary scrutiny over the emergency legislation due to the nature of the rights that are being compromised. Lady Hale, former Supreme Court President, suggested that Parliament has "surrendered control of its constitutional role" and allowed these "draconian" regulations to be passed without any kind of oversight.
Parliament was more recently given the chance to vote on the new restrictions for the second national lockdown, which they approved after a three-hour long debate. Despite the greater contribution of Parliament, one cannot ignore the fact that the rules were announced to the public before the debate in Parliament had even taken place. Furthermore, the regulations have received a significant backlash from MPs, as “the majority of MPs are reluctantly resigned to lockdown”. Finally, Parliament was only given a day to debate and vote on the restrictions. All these factors may have had a negative impact on the effectiveness of parliamentary scrutiny.
THE IMPACT ON RIGHTS AND FREEDOMS
As mentioned, parliamentary scrutiny is especially important in regards to legislation such as the COVID-19 regulations, because of the human rights implications they may have. Several rights and freedoms are affected, such as the right to private and family life guaranteed under article 8 of the European Convention of Human Rights (ECHR) and article 17 of the International Covenant on Civil and Political Rights (ICCPR). This right has been restricted for many people, as they are prevented from seeing family members due to lockdown restrictions. Tracking apps can also infringe upon the right to privacy, as they detect where people go and who they meet.
The freedom of movement is also a protected right under article 2 of Protocol no. 4 ECHR and article 12 ICCPR, allowing anyone to leave any country, enter one’s country, and move freely within the country. With new restrictions on travel, including the UK’s quarantine list and some countries completely shutting their borders, this has placed a significant limitation on the right to travel, justified by the need to prevent the spread of the virus.
Another area that has been affected by the lockdown restrictions is the right to education, enshrined in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and by article 2 of the Protocol to the ECHR. Many schools have had to shut down, sending home small groups of students or otherwise facilitating a shift to online learning. The issue with this is that many students may not have the support or facilities at home to engage in online school, and even if they do, there could be technical or other problems, which means they are not receiving the education they are entitled to.
All the rights mentioned above are not absolute rights, which means that they may be restricted in situations where it is considered necessary and proportionate to do so. Often, the decision of whether a restriction is necessary and proportionate could be aided by parliamentary scrutiny and debate, highlighting the importance of the process.
IMPACT ON THE RULE OF LAW
The government’s approach to upholding democracy and the rule of law has been heavily criticised over the past few months. From proroguing Parliament, to unveiling the Internal Market Bill and potentially breaching international law, many are concerned about the attitude of the UK government in relation to international matters. This perceived threat to democracy and the rule of law has been further exacerbated by the government’s comments about lawyers and judges interfering in politics and the ongoing inquiry into judicial review. In light of all this, the lack of parliamentary scrutiny, especially in a period of such pervasive legislative change, is extremely worrying for many human rights advocates.
Government ministers have defended the use of delegated legislation, relying on the ease and speed with which regulations can be passed to deal with a quickly escalating situation. However, with growing concern amongst MPs over the lack of scrutiny, it may not be long before the government has to rethink the current strategy for dealing with COVID-19 restrictions.
Tanya is a Law student heading into the final year of her degree at the University of Manchester. She is interested in bringing attention to human rights issues arising from her Pro-Bono work at University (volunteering at the Legal Advice Centre and taking part in volunteering projects). Her main goal is to become a Barrister practising in either Criminal or Family Law.