"Covid-19 has been recognised by the WHO as global public health pandemic. Its epicentre is now in Europe, with the death toll in Italy eclipsing that of China. Many governments have been caught unawares by the scale of the crisis and have brought in or are bringing in emergency legislation to try to stop its spread. However, emergency laws are always a blunt instrument, they are made when we all scared and vulnerable and we need to ensure that we don’t give up too many of our human rights or make them the new normal.
"The UK government already has far reaching legal powers that are sufficient to stop public health threats such as Covid-19. The Public Health (Control of Disease) Act 1984 (PHA), together with various regulations, already provides extensive powers for diseases like Covid-19 which was included under this act on the 5 March 2020. The Government also has the authority to make emergency regulations under the Civil Contingencies Act 2004 (CCA). Of course, the government can also introduce new legislation to deal specifically with the Covid-19 pandemic, which is it seeking to do through a Coronavirus bill, which is now going through parliament.
"The proposed law will give the government several powers, but these will limit human rights, and any proposed legislation must be proportionate. The proposed bill affects two key areas: social interactions (social and economic rights) and civil and political liberties (civil and political rights).
"Socially, the Act will give governments the power to close nurseries, schools and other higher education establishments, change the ways in which deaths are certified and, in some instances, strip back services from care homes. These may be proportionate, and the government is only given this power if it is acting on scientific advice from the Chief Medical Officer.
"However, it is hard to know what is proportionate without greater transparency about the decisions that are informing government decisions. For instance, a group of experts have called for all the evidence which supports the government’s current strategy regarding Covid-19 to be made publicly available. This transparency would help the public better understand the circumstances under which the government changes its guidance; for instance, when it changed advice from the contain to the delay phase or on making decisions on school closures.
"The proposed bill will also have a major effect on civil liberties, as it gives the government the power to ban public gatherings and increase police powers, to widen police and immigration officer powers of detention and restraint, and allow police and other officers to use reasonable force on people who refuse to self-isolate.
"Legally, this also seems proportionate as it balances human rights and the public need, but it raises important questions about some of the rights of the most vulnerable. For instance, some initiatives, such as increased social distancing and compelling people to self-isolate, will disproportionately affect vulnerable people, such as homeless people. There are not enough beds in shelters and many shelters are not designed to deal with contagious diseases.
"Furthermore, there is always the danger with emergency legislation that this becomes the new normal. Some of the government’s attempts to contain this public health response may be widened and used in order to further curtail civil liberties, even after this crisis is over. Critics have, for instance, pointed to the erosion of civil liberties after terrorist attacks such as 9/11, and the fact that many of those laws became a part of our everyday life. For instance, BT, the owner of the UK’s biggest mobile operator EE, is in talks with the government about using its phone location and usage data to monitor whether coronavirus limitation measures, such as asking the public to stay at home, are working. At the moment, there are no suggestions that the government is opting for a system such as the Israeli one of surveilling individuals who may be sick directly, as all data will be anonymised. However, collection of data in this way sets a precedent, and there is a danger that this mode of surveillance by private companies on behalf of the government could become normalised after the pandemic and become yet another way by which the government keeps track of its citizens."
- Dr Sekalala was the only lawyer on the recent Nuffield Council on Bioethics inquiry into research during global health emergencies. She is the author of Soft Law and Global Health Problems: Lessons from HIV/AIDS, malaria and tuberculosis
Media Relations Manager