Human Rights & Covid Legislation: The Independent Commission on UK Public Health Emergency Powers’ report

The Independent Commission on UK Public Health Emergency Powers has published a new report on UK governments’ reactions to Covid-19. The Commission was set up with the goal of producing findings and recommendations that will help inform planning for future health emergencies.

Our CEO, Sanchita, gave evidence to the Commission, drawing on our experience of working with individuals, community groups, public body workers and policy-makers throughout the pandemic.

Sanchita discussed concerns that human rights and the existing duties on public officials were not properly considered at every stage of decision-making, with governments prioritising protecting the right to life without properly considering other rights that were impacted.

The Commission subsequently recommended that “Ministers should have a statutory duty to have regard to any relevant advice produced by National Human Rights Institutions in their jurisdiction when making or continuing a declaration of an urgent health situation and when laying or continuing public health regulations.”

Sanchita also raised the need for better government consultation and engagement with both individuals and public body staff. She highlighted the example of care-led organisations and care homes raising problems with hospital discharge policies early on but not being listened to. Effective evidence gathering needs to be proactive; issuing a consultation is not enough.

The Commission then recommended that planning for future public health emergencies should “identify points where certain groups should be consulted in a proactive, participatory manner” and “the task of ensuring that certain groups are consulted as part of the legislative drafting process should be assigned to a particular member of the team.

Sanchita also spotlighted examples of positive practice during the pandemic, with the Scottish Government explaining in its two-monthly reports whether local authorities had used the Coronavirus Act to reduce levels of care and support packages. This level of transparency “opened an avenue for organisations to give evidence and influence the review processes”. However, this same level of transparency was not seen in other areas of the UK.

The Commission said that, in light of this discussion, it “consider[s] that emergency-responsive primary legislation should include a regular (i.e. two-monthly) reporting requirement that requires reports with evaluative, not purely narrative, criteria to be prepared for the legislature.”

Finally, Sanchita, along with the former Chair of the Equality and Human Rights Commission, asked the Commission to consider including human rights expertise on the body providing the UK Government with advice during emergencies.

The Commission agreed, saying ,“when responding to a public health emergency, governments should convene or recognise a group whose function is to provide independent expert advice on human rights and equality issues arising from potential or existing public health interventions."