Coronavirus: making fair decisions in times of emergency

Published 30/04/2020   |   Last Updated 27/05/2021   |   Reading Time minutes

Human rights are key to the coronavirus response and the recovery, as they “focus our attention on who is suffering most, why, and what can be done about it.”, according to the UN Secretary-General.

The World Health Organisation (WHO) has also said that human rights frameworks can “strengthen the effectiveness of global efforts to address the pandemic”.

The Welsh Government’s plan for leading Wales out of the pandemic sets out principles that will be used to examine ways to ease the current restrictions. The final of these seven principles is an assessment of whether the measure will have “a high positive equality impact”, but doesn’t mention human rights.

The equivalent plan for Scotland commits to “protect those most at risk and protect human rights”. The Scottish four-part assessment framework includes consideration of both human rights implications and equality impacts.

Governments around the world are trying to strike a fine balance between protecting health, minimising economic and social disruption, and respecting human rights.

But how can the Welsh Government translate its equality and human rights commitments into practical action during a global crisis?

Our previous blog posts outline the immediate human rights implications of the lockdown, and the emerging equality issues in Wales. In the past we have also explored how human rights can be translated from theory into practical action.

This article will look at how equality and human rights can provide a basis for decision-making in Wales in the transition out of lockdown and into a ‘new normal’, as well as considering the Assembly’s role.

The Welsh Government is committed to equality and human rights, and strives to be a ‘world leader’ in gender equality

As well as its obligations under international and UK domestic law, the Welsh Government is committed to equality and human rights through:

Commitments to equality and human rights during coronavirus

The Welsh Government’s core values for healthcare planning and delivery during the pandemic are clear that “everyone matters”, and that “health service delivery will follow the principles set out in equality and human rights legislation.

The Minister for Health, Vaughan Gething AM addressed the disproportionate impact of the virus on people from black, Asian and minority ethnic (BAME) communities (evidence on this issue is outlined in our previous article). He committed to:

establish whether there are any identifiable factors that could help inform decisions on whether we need to give different public advice regarding comorbidities, isolation, shielding and personal protective equipment (PPE) in relation to people from BAME backgrounds”

The Minister also stated that Public Health Wales’s mortality monitoring would “capture more detailed data on deaths”, including information on ethnicity and on health and social care workers (among which BAME groups are over-represented).

The Welsh Government recently amended the lockdown restrictions to allow people with particular health conditions or disabilities to leave their houses more than once a day to exercise.

On 30 April, the Minister for Education announced up to £3 million to provide laptops and mobile internet for ‘digitally excluded’ pupils.

The Welsh Government has also issued statements and guidance on coronavirus and: domestic abuse; disabled people; the Chinese community; ethnic minority communities, and faith communities.

Equality and human rights principles can be used to guide decisions in emergency situations

It is clear from our previous article that certain groups of people are currently experiencing unequal or specific effects because of the virus.

These are related to health (like the higher vulnerability of the Welsh population to the virus due to its demographics), but also social and economic effects (such as increases in domestic abuse and the higher proportion of young people working in shut down sectors).

The emergency measures introduced to respond to the virus have been calledthe most wide ranging restrictions on civil liberties for at least 75 years”.

But as the lockdown is gradually lifted, the equality and human rights implications of government responses are likely to shift.

For example, in Wales the relaxation of duties to meet care needs (which disproportionately affect disabled and older people) may be ‘switched off’. But the potential introduction of contact tracing phone apps and the powers to detain ‘potentially infectious’ people may increasingly become the focus.

These measures have an impact on our right to privacy and right to liberty. It’s likely that safeguards and monitoring would be needed to make sure they do not go beyond what is proportionate, and to guard against discriminatory practices resulting from them (for example the detention of people based on race).

Practical measures to respect and protect equality and human rights

The WHO has outlined the human rights issues for states to address in their ongoing response to the pandemic (all of which are relevant in Wales) including:

  • stigma and discrimination;
  • gender equality and prevention of violence against women;
  • support for vulnerable populations (including older people, disabled people, people with health conditions, homeless people, refugees, migrants and prisoners);
  • quarantine and restrictive measures;
  • shortages or supplies and equipment, and
  • obligations of international assistance.

Practical suggestions for how the Welsh Government could uphold equality and human rights standards during the pandemic have been suggested, including:

  • introducing measures to identify and address domestic abuse, sexual violence and FGM through, for example, remote health consultations and through contact with schools, workplaces, and even pharmacies and shops (as suggested by the UK Parliament’s Home Affairs Select Committee). Welsh Women’s Aid is also calling for increases of funding for domestic abuse services. These measures could contribute to fulfilling obligations under Articles 3 (prohibition of inhuman and degrading treatment) and 2 (right to life) of the European Convention on Human Rights;
  • adhering to the Council of Europe’s recommended principles for detainment when exercising its powers under the Coronavirus Act 2020. This could help fulfil obligations under Article 5 (the right to liberty) and Article 3;
  • risk assessing BAME healthcare staff and reassigning them to duties that leave them at lesser risk of contracting coronavirus, as outlined by guidance to NHS Trusts in England;
  • resolving issues with PPE to help fulfil obligations under Article 2 to take steps to protect life (as suggested by human rights lawyers);
  • ensuring that any cases decided by the Mental Health Tribunal for Wales without a hearing are only done with the consent of the patient, as in England. This involves the right to a fair hearing under Article 6;
  • investigating the circumstances of all deaths of health and social care workers, as called for by the BMJ. Powers in the Coronavirus Act allow for the abandonment of a jury inquest where a person’s cause of death is listed as COVID-19, but coroners can still choose to do so. Under Article 2, governments are under an obligation to carry out a full investigation into any death where the state may be involved.

Mitigating the unequal social and economic impact in Wales could also involve, for example:

  • using the opportunities provided by widescale use of home working to address inequalities in the workplace. This could include encouraging public sector employers to use flexible working as the default, as recommended by an Assembly committee exploring measures to increase gender equality.
  • ensuring that the use of predicted grades does not increase inequality for learners who are already disadvantaged, as highlighted by the Equality and Human Rights Commission (EHRC);
  • enhancing the benefits that are in the control of the Welsh Government. The Bevan Foundation has called for increases to discretionary housing payments, and the Welsh Government is promoting its council tax reduction scheme. The Discretionary Assistance Fund could also be enhanced (as recommended by the Child Poverty Action Group), by increasing funding, streamlining its application process, increasing referral partners, and widening eligibility criteria.
  • acknowledging the importance of the ‘care economy’ (both formal and informal). Women make up most of the health and social care workforce in Wales, and take on the majority of unpaid care, but also make up the majority of low earners. Some organisations are calling for the Childcare Offer to be reviewed in Wales, and in Scotland the government has increased pay for social care staff.

Governments could also use the values of human rights (dignity, fairness, equality, respect and independence) to shape their ongoing response to the pandemic in practical ways.

The UN’s principles of good governance and human rights (transparency, responsibility, accountability, participation, responsiveness to needs of the people) could also be used.

The Assembly’s role in monitoring the impact on equality and human rights

Parliaments have a key role in holding governments to account for decisions during this period, especially when it’s not possible to follow usual processes and safeguards.

The Inter-Parliamentary Union’s (IPU) guidance for parliaments in assessing government’s responses against human rights standards emphasises the consideration of:

  • proportionality and necessity: This means that any measures to restrict people’s human rights (for example, their freedom of association or rights to liberty or privacy) must not do more than is absolutely necessary to achieve their aim. In other words, they shouldn’t use a sledgehammer to crack a nut;
  • time limits: the exceptional nature of the current situation should be reflected by clear time limits on emergency powers or changes to duties or safeguards;
  • lawfulness: whether there is a legal basis for measures that limit human rights, and
  • non-discrimination: parliaments should make sure that any measures taken by governments during the pandemic do not discriminate or unfairly target certain people, whether intentionally or unintentionally. The IPU has published a separate guidance note for parliaments on scrutinising gender issues during the pandemic.

The important of transparency and access to information is also highlighted, to ensure parliamentarians and citizens have access to the evidence upon which governments are basing their decisions.

Evidence collected by Assembly Members or committees can also help to assess if the Welsh Government’s equality and human rights commitments are being fulfilled in practice.

Assembly committees are beginning to take evidence on the impact of coronavirus on Welsh life. You can see all the calls for evidence on the Assembly’s Twitter account, or on individual committee’s webpages.

Article by Hannah Johnson, Senedd Research, National Assembly for Wales

We’ve published a range of material on the coronavirus pandemic, including a post setting out the help and guidance available for people in Wales and a timeline of Welsh and UK governments’ response.

You can see all our coronavirus-related publications by clicking here. All are updated regularly.