Coronavirus Bill: early thoughts

Coronavirus Bill

 The Bill is 321 pages long and is very detailed in places because it amends many other statutory provisions.  Below are some extracts from the Explanatory Notes to the Bill (the Notes are themselves 72 pages long) which are relevant to human rights  – even so only the “highlights” have been picked out from the Notes at this early stage.  In practice, this note is concerned only with civil and political rights.  There are of course significant issues more generally with the right to housing, incomes, food etc. which are not covered here and, with exceptions, not covered in this Bill.

The text in italics are some first thoughts

Paragraph numbers are references to the paragraphs in the Explanatory Notes and there is a reference to the relevant clause and Schedule numbers so it is easier to find the relevant part in the Bill itself.  From page 21 the Explanatory Notes set out more detail on a Clause by Clause basis.

The Government has published a separate ECHR memorandum which explains its assessment of the compatibility of the Billʹs provisions with the Convention rights.

Notes

https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf

Bill

https://publications.parliament.uk/pa/bills/cbill/58-01/0122/20122.pdf

Government’s human rights assessment

https://publications.parliament.uk/pa/bills/cbill/58-01/0122/Memorandum%20to%20the%20Joint%20Committee%20on%20Human%20Rights%20-%20The%20Coronavirus%20Bill%202020.pdf

Liberty’s immediate reaction

https://www.libertyhumanrights.org.uk/news/press-releases-and-statements/liberty-calls-continuous-scrutiny-coronavirus-bill

The Bill itself. Para 113

The Bill is designed to respond to the covid-19 pandemic and will expire after [two] years with the exception of the provisions relating to the power to award indemnity payments, various transitional provisions to deal with the sunset of the substantive provisions and the technical provisions in the Bill (clause 75). To provide flexibility, clause 75, allows for the application of the Act to be extended (or shortened) by way of regulations made by a Minister of the Crown. The regulations must not extend the period that the Act is in force for more than 6 months at a time. It is important to have this extension mechanism since the health and welfare implications of letting the provisions expire when covid-19 is still spreading could be serious and at this time the duration of the covid-19 pandemic is not known. It will also be possible to extent some provisions of the Bill while letting others sunset – so if some measures are no longer necessary as the pandemic get less severe these could be sunset while the provisions that are still being relied on could be retained. This is to ensure that measures are only in place as long as is necessary to manage the effects of a covid-19 pandemic.

For many of the provisions the method of achieving suspension and revival will be by way of a regulation made by a Minister and the Bill enables Ministers to extend or terminate a particular provision through regulations. The Bill also contains a power to make consequential modifications to other legislation so that it aligns with this Bill. Para 519 to 529, Clauses 74 to 78.

Reduction in protections for those subject to the MHA. Para 24 & 25, Clause 9 and Schedule 7

The amendments allow certain functions relating to the detention and treatment of patients to be satisfied by fewer doctors’ opinions or certifications. Temporary amendments also allow for the extension or removal of certain time limits relating to the detention and transfer of patients.

Further provisions will temporarily amend current provisions in respect of defendants and prisoners with a mental health condition. It will reduce the number of doctors’ opinions required and modify time limits for detention and movement between court, prison and hospital.

Article 5(1) – the protection from arbitrary detention

Reduced obligations on registering deaths. Para 37 and Clause 17 and Schedule 12

In England and Wales, the Births and Deaths Registration Act 1953 places a responsibility on the deceased’s doctor to provide a medical certificate giving, to the best of the doctor’s knowledge and belief the cause of death. This medical certificate is given to the registrar and used to record the cause of death in the death registration. If the doctor is not able to sign the medical certificate, for whatever reason, the death has to be referred to the coroner for investigation. The Bill will simplify this and provide more flexibility in an emergency situation by enabling a doctor who may not have seen the deceased to certify the cause of death without the death being referred to the coroner.

Article 2 – the right to life, particularly the duty to hold independent investigations if the state

 An effective official independent investigation is required whenever an individual is killed as a result of force being used by an agent of the state or if a police officer may have contributed to the loss of life in some way.  That is to say, when it is arguable that there has been a breach of Article 2 of the ECHR (Anguelova v Bulgaria (2002).

 It is not necessary for a state agent or police officer to be directly involved in the death to trigger this independent investigation (Menson v UK (2003)). For instance, the ECtHR considered that in a case of prolonged domestic abuse of a mother and daughter, which had led to the mother’s death, and where the authorities had failed to protect her, the obligation under Article 2 for an independent applied (Opuz v Turkey (2009)).

Relaxed rules for appointing surveillance commissioners. Paras 48 to 53 and Clauses 21 & 22.

 The Investigatory Powers Act 2016 (the “IPA”) is a critical piece of domestic legislation for national security. It creates the statutory basis for the use of the investigatory powers by the intelligence and law enforcement agencies, using warrants issued under the IPA.

The Bill provides the ability to increase the number of Judicial Commissioners should the effects of covid-19 mean that there is a shortage of Judicial Commissioners. Having a sufficient number of Judicial Commissioners is critical in protecting national security and preventing serious crime, given their vital role in the ‘double lock’ for warrants.

The Bill creates a regulation making power to enable the timespan of an urgent warrant to be varied at the request of the Investigatory Powers Commissioner., extending the period for ex post facto Judicial Commissioner authorisation and the lifespan of the warrant for up to 12 working days.

Article 8 – the right to privacy. May lead to a reduction in the independent control of the use of these powers

No requirement for an inquest with a jury in Covid-19 cases. Para 59 and Clause 28

The Bill will modify the current legislation to disapply the requirement that coroners must conduct any inquest with a jury where they have reason to suspect the death was caused by covid-19.

Article 2 – the right to life, particularly the duty to hold independent investigations if the state

 An effective official independent investigation is required whenever an individual is killed as a result of force being used by an agent of the state or if a police officer may have contributed to the loss of life in some way.  That is to say, when it is arguable that there has been a breach of Article 2 of the ECHR (Anguelova v Bulgaria (2002).

 It is not necessary for a state agent or police officer to be directly involved in the death to trigger this independent investigation (Menson v UK (2003)). For instance, the ECtHR considered that in a case of prolonged domestic abuse of a mother and daughter, which had led to the mother’s death, and where the authorities had failed to protect her, the obligation under Article 2 for an independent applied (Opuz v Turkey (2009)).

 Powers to detain etc (some of these powers are already in place but these provisions replace them). Para 88, 397 to 399 and Clause 49 and Schedule 29

The proposals will provide public health officer, constables and (in some circumstances) immigration officers with the means to enforce sensible public health restrictions, including returning people to places that they have been required to stay. Where necessary and proportionate, constables and immigration officers will be able to direct individuals to attend, remove them to, or keep them at suitable locations for screening and assessment. These measures look to fill existing gaps in powers to ensure the screening and isolation of people who may be infected or contaminated with the virus and to ensure that constables can enforce health protection measures where necessary.

The provisions will apply in relation to England, Scotland, Wales and Northern Ireland, respectively, where the relevant authority for that territory is of the view that there is a serious and imminent threat to public health due to the incidence or transmission of the covid-19, and that the exercise of the powers will be an effective means of delaying or preventing significant further transmission of the virus; and has made a declaration to that effect.

The provisions confer powers on public health officers to require persons to go to suitable place to undergo screening and assessment where they reasonably suspect the person has or may have covid-19, or has been in an infected area within the 14 days preceding that time. Such persons are referred to in the provisions as “potentially infectious” persons. There are additional powers for public health officers to impose other appropriate restrictions and requirements upon potentially infectious persons where they are necessary and proportionate, such as a requirement to remain in isolation, restrictions on travel, activities and contact with other people. The provisions also confer powers on public health officers and constables to enforce the restrictions and requirements imposed under the schedule.

The clause and schedule also confer certain powers on immigration officers and constables in relation to persons whom they have reasonable grounds to suspect as being potentially infectious. An immigration officer or a constable may direct such a person to go to a place suitable for screening and assessment, or may remove a person to such a place to undergo screening and assessment, or to keep that person there for a time-limited period to be handed over to a public health officer for the same purpose. In exercising their powers under these provisions, immigration officers and constables will be obliged to consult a public health officer, so far as practicable to do so.

Summary

 The provisions are set out in Schedule 20 (what follows is the provisions for England – provisions for other parts of the UK are similar).   

 The Secretary of State’s declaration that the incidence or transmission of the virus “constitutes a serious and imminent threat to public health in England” and that these powers will be effective in delaying or preventing transmission. (Para 4) will trigger the following powers:

  • If a public health officer (PHO), immigration officer or constable has “reasonable grounds to suspect that a person in England is potentially infectious” then the official can then direct a person to go to a place to be screened and assessed or remove them to that place or request a constable to do this. To exercise the power the official must consider “it is necessary and proportionate to do so” in the “interests of the person” “protection of other people” or “maintenance of public health”. It is an offence to not to comply (without reasonable excuse) (paras. 6 and 7). These same conditions apply to the following powers.
  • A PHO can require the person to remain at that place for 48 hours to be screened and assessed and it is an offence not to comply (para 9). The PHO can also then direct them to go to another place for the same purposes.
  • The PHO can require a biological sample and “to answer questions and provide information about their health” or travel history and other people they have been in contact with. Also the PHO can impose a requirement to provide documents and their contact details. Failure to comply with these provisions is an offence.
  • A constable or immigration officer can hold people temporarily for 24 and 3 hours respectively until the PHO can exercise his/her powers and these periods can be extended by more senior officers for further periods of 24 and 9 hours.
  • If a person screening is positive or inconclusive there are further powers to require information, contact details, to go to a specified place and remain there (for up to 14 days) etc. This period can be renewed once.  Restrictions can also be imposed on a person’s movements, travel, contact with others and activities (including work). It is an offence not to comply.
  • Once restrictions have been imposed further restrictions may be imposed following a review.

[The assessment of the human rights assessment of the Bill provided by the Government mentions a right of appeal to the magistrates court but I am not clear where this is set out in the Bill itself].

 Human rights issues:

 Note that under Article 15 of the ECHR the State can derogate from some of the provisions “In time of war or public emergency threatening the life of the nation” https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf

 This allows derogations to the “extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. In this context derogations are potentially permitted in relation to Article 5 and 8 but not Article 3

 The European Court of Human Rights Guide to Article 5 is set out here https://www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf

 Article 5(1)(e) allows “the lawful detention of persons for the prevention of the spreading of infectious diseases…”

 “107. The essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are:

  • whether the spreading of the infectious disease is dangerous to public health or safety; and
  • whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest.

When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist (Enhorn v. Sweden, § 44).

 In addition there are the more general tests for compliance with Article 5 which require:

  • Precise and foreseeable law – the Bill provides considerable detail
  • The duty to provide the reasons for detention -5(2) – the Bill requires reasons to be given to the individual – Sch. 20, para 7(4)(a), 11(2)(a) etc.
  • Regular review of detention by a court – 5(4)
  • Compensation for unlawful detention – 5(5)

Article 3

 The Bill provides powers to screen and assess and to take a biological sample by force.  Such actions by the state would ordinarily violate Article 3.  However, where treatment is given by force where it is “of therapeutic necessity from the point of view of established principles of medicine” and in the interests of the person it will not violate Article 3 (Jalloh v Germany (2006), para 69.  Taking samples for the purpose of gathering evidence is also not a violation.

 Article 8

 The Bill requires an individual to provide samples, information and documents but Article 8 is a qualified right and it is likely that in general such actions will be justified if the material necessary and destroyed once the particular need for its collection has passed.

 Restricting gatherings. Paras 89 & 90.

 The provisions give the Secretary of State the power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary. This streamlines existing legislation in England and Wales, to ensure that powers to prevent events or gatherings can be deployed as quickly as possible in the event this is justified by the evidence. It also extends the power to Scotland and Northern Ireland too, where there is no equivalent legislation.

This can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:

  1. prevent, protect against or control the incidence or transmission of coronavirus, or
  2. facilitate the most appropriate deployment of medical or emergency personnel and resources.

Articles 10 and 11 – freedom of expression and the right to assemble and demonstrate.  These provisions may be sensible for ensuring social distancing etc.  However, apart from the fact that the HRA applies which might help to mitigate the provisions, there is no special arrangements for political protest – even if the protest could somehow ensure social distancing.  This is ironic given the significant nature of the government’s role and the likelihood of people wanting to protest for this very reason.

Virtual courts.  Paras 92 to 95, Clauses 51 to 54.

 The Bill amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.

Provisions are also made within the Bill to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.

The Bill provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Bill therefore makes provision that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.

Article 6 – the right to a fair trial – section yet to be considered.