Current Affairs Digest: Constitution

Catch up on articles you may have missed on the constitution, government and parliament from May 2020. Articles this month take a closer look at Covid-19 and human rights legislation.

Covid and International Human Rights

Alice Donald and Philip Leach argue the importance of international human rights standards in the global response to Covid-19 in this piece for the Verfassungsblog (a German blog founded by legal journalist and writer Maximilian Steinbeis)The article details various examples of potential human rights violations caused by Covid-19. These include a woman experiencing domestic violence during lockdown with no state support having her “right to life and her right to be free from inhuman or degrading treatment” infringed upon. The authors urge states to adopt “rights-respecting” policies and to take “protective or preventive steps which positively ensure that certain standards are met”. This is particularly important for people in the care of the state, such as prisons, immigration centres and some residential institutions.  

The authors go on to examine how steps to protect one area of human rights, such as the right to life and health, can negatively impact on efforts in another area. This balancing act “between responding effectively to the pandemic, while ensuring that fundamental rights are not swept away“, can be given transparency and structure by the use of international human rights standards.  

The article states that the Covid-19 outbreak has “exposed and exacerbated deep structural inequalities in the social determinants of health both within and between nations“. The authors argue that the burden has fallen heaviest on those in vulnerable circumstances, such as older people, people with disabilities and the homeless. They then highlight the importance of human rights instruments, such as measures aimed at preventing irreparable harm in the European Convetion of Human Rights, as a framework to ensure that the rights of such people are upheld and protected during the Covid-19 crisis.

Read the full article: Alice Donald and Philip Leach, ‘Human Rights – The Essential Frame of Reference in the Global Response to Covid-19‘, Verfassungsblog, 12 May 2020.

Article 2 and the Inquiries Act

Writing on the UK Constitutional Law Association’s blog, Paul Bowen considers the investigative duty under article 2 of the European Convention of Human Rights (ECHR) in the context of the coronavirus outbreak. Article 2 states that “everyone’s right to life shall be protected by law”. He also looks at the Inquiries Act 2005, and what this means for a public inquiry.  

Bowen examines the conditions necessary to trigger an investigation under article 2 of the ECHR. These include any risk of the government breaching its positive duties, including the duty to protect life and liberty. He also covers the limitations of these duties and how they would operate in practice. Bowen states that he is not suggesting that the government has breached any of these duties. He explains that the purpose of any investigation would be to establish whether any breaches had occurred. All that is required to trigger an investigation, Bowen states, is an ‘arguable’ breach of one of the positive duties.  

Finally, Bowen looks at the limitations of an inquest triggered under article 2 of the ECHR. He suggests that such an inquest may be unsuitable for “determining systemic issues involving a large number of separate deaths with common features”. He adds that an inquest “cannot determine article 2 issues involving serious illness or injury but which do not cause death”, of which there are many in the current crisis. For these reasons, Bowen states that a full public inquiry will likely be necessary under the Inquiries Act 2005.  

Read the full article: Paul Bowen QC, ‘Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic‘, UK Constitutional Law Association, 29 April 2020.