Mhairi Snowden stress tests our human rights practice and finds our governments wanting.
If COVID-19 has been a fundamental test for our societies as Michele Bachelet, UN High Commissioner for Human Rights has insisted it is, how have we done? How have human rights and dignity been respected, protected and fulfilled during the pandemic? At the outset, it is worth reminding ourselves that human rights are not abstract or theoretical, and though they are internationally agreed, they are intensively local and practical. Human rights are very much about power – about ensuring that no government body has too much power but that this power is shared, and that use of power is restricted and characterised by dignity for individuals and communities.
It is true that COVID-19 has seen the restriction of human rights for all of us. Our rights to liberty, to association with others and to family life have all been drastically curtailed. Both Westminster and Holyrood governments have been at pains to point out – at some times more than at others – that the human rights principles of proportionality, necessity and lawfulness all must be applied if such restrictions are to be legitimate. However, these are principles which must be backed up by rigorous assessment. They are not to be easily assumed, or to stand still in time. Rather, they must be constantly assessed for their efficacy. Restrictions must remain in place not one day longer than necessary. For example, it may be that restrictions not allowing visitors to care homes back in April may have been proportionate but as the pandemic changes and time goes on, when does this become a disproportionate and discriminatory impact on the right to family life of care home residents?
It is this rigorous consideration of human rights in decision-making that appears to have been lacking in many aspects of COVID response (or possibly was non-existent in the first place). For example, research by the Scottish Human Rights Commission shows that a considerable proportion of people who use social care support at home experienced either a reduction or complete withdrawal of support during COVID-19. People were suddenly left unable to get out of bed, unable to get to work, unable to leave their homes, leaving their sense of dignity in tatters. There needs to be an emergency decision making framework for social care which is grounded in rights-based principles of inclusion and participation in decision making, and transparency.
Emergency coronavirus legislation reduced the duties of local authorities to assess care needs on the basis of ensuring flexibility to councils to be able to respond in the midst of staffing crises. However, the prerequisite for use of this new weakened provision was set far too low, stating that needs assessments do not need to be carried out if ‘it is not practical to do so’. Allied to this, emergency coronavirus legislation also reduced duties to consult individuals and their advocates around decisions on mental health detention and accommodation. Agency over where you live is so very much bound up with dignity.
There have been some positives. For example, the UK Government increased Universal Credit and Working Tax Credit by approximately £20 per week – this increase was needed before the pandemic, and it is welcome that it has happened now. However, in contrast, asylum support rates are barely 40% of the allowance people over 25 receive on Universal Credit. People with no recourse to public funds (NRPF) and EU citizens with pre-settled status were particularly at risk of infringements of their right to an adequate standard of living during COVID-19. As BEMIS, the organisation for empowering Scotland’s ethnic and cultural minority communities, stated the NRPF immigration policy ‘represents a direct derogation of the prohibition of racial discrimination as set out in the International Convention to Eliminate Racial Discrimination’. It is time for the NRPF system to be publicly shamed and ended, and in the meantime, for the Scottish Government to use all of its powers to mitigate it.
During COVID-19, in prisons, short scrutiny visits by HMIPS and HMI Prisons found that many prisoners were locked in their cells for more than 22 hours per day, with some only allowed out for 20 minutes per day. This meets the internationally accepted definition of solitary confinement, thus, contravening the Mandela Rules and amounting to inhuman and degrading treatment in breach of Article 3 of the European Convention on Human Rights. Alongside recent damning criticism of Scotland’s prison conditions by the Council of Europe, this is a significant human rights concern during the pandemic and beyond.
I have only touched on a number of human rights impacts of the pandemic response. Human rights now need to be at the heart of COVID recovery – this means a rejection of any UK Government attempts to replace or water down the Human Rights Act. In Scotland, it means incorporating our international human rights into Scots law, making sure that people with lived expertise are at the post-COVID decision-making table, making sure we recognise the impacts on particular groups such as BAME communities, and making sure that the way we set priorities and budgets leads to the realisation of rights for all. The more we get this right during recovery and, yes maybe even in ‘normal’ times, the better we will have a dignity-respecting response in times of crisis.