Business Post – Ray Murphy: Respect for human rights must be central to our response to Covid-19

Whitaker Institute member Professor Ray Murphy, of the Conflict, Humanitarianism and Security cluster, has written a new piece for the Business Post which argues human rights must remain at the centre of the COVID19 response from states.

To read the article click here.

The article was also featured in Sunday’s (17 May) Business Post newspaper (pg 26).

Human Rights Approach Needed for Covid Emergency –  Business Post, Sunday 17 May 2020, p 26. 

Prof Ray Murphy, Irish Centre for Human Rights, School of Law, College of Business, Public Policy and Law.

The Covid–19 crisis has brought many challenges to our way of life and, similar to other emergencies, the response will define our immediate future. Ensuring respect for the human rights of everyone during the pandemic continues to pose a challenge for all states, including Ireland. Two-thirds of member states of the Organisation for Security and Cooperation in Europe have put in place states of emergency or other extraordinary measures, which often enable curbs on fundamental rights and can facilitate limitations on parliamentary oversight.

Human rights must remain central to the response and any plans for how we address what has now evolved into a health, social and economic crisis.  While it is necessary to curtail fundamental freedoms due to the public health risk posed by the spread of Covid-19, restrictions must be necessary, proportionate and non-discriminatory. A joint statement issued by Ireland and thirteen other European countries at the outset of the crisis reflected this.  The agreed statement warned that emergency measures should be limited to what is strictly necessary and they should be proportionate and temporary in nature, subject to regular scrutiny, and respect for the rule of law. It recognised the critical role the media can play in ensuring accountability and transparency in decision making by those in authority.

Hungary undermined democratic values at the outset by enacting laws that stifle free speech and permit the postponement of future elections.  In so doing Prime Minister Orban can effectively rule by decree and hold onto power indefinitely.

This is not the first public health emergency the state has confronted. The Health Act 1947 already contained some draconian provisions to address the threat posed by an outbreak of tuberculosis and it remains the primary legal framework governing infectious diseases. The regulations can require adult persons to remain in their homes and mandatory inspections, testing and inoculation are also provided for.

The emergency provisions provided for in the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 are therefore not unprecedented. Nevertheless, the new legislation amends the 1947 Act and makes exceptional provision in the public interest, having regard to the grave risk to human life and public health posed. The Minister for Health has a wide range of powers to make regulations.  Gardai now have enhanced powers of arrest.  To date, community policing and a non-coercive approach have worked well and the more draconian powers should only be necessary in exceptional cases.

Covid-19 is now on the list of notifiable diseases which obliges doctors to notify the HSE when a case is diagnosed.  This is common practice when dealing with any newly emerging infectious disease and was also done for the SARS epidemic in 2002.

There has been disquiet about the extent of the powers conferred by the new Act and by how frequently they could be used. It was agreed that the controversial detention and isolation powers would remain law until 9 November, the so-called sunset clause sought by civil liberties groups.  These can only be renewed by the Minister following Dáil and Seanad approval.

The power to detain individuals in a hospital or other appropriate place when they are suspected of being possible sources of infection is one of the most significant provisions of the Act.  An individual’s right to physical liberty and security of person is fundamental such that in liberal democracies we take it for granted. The right to liberty goes back to the Magna Carta in 1215 and has led to similar provisions in the Irish and US constitutions.  However, the right is not absolute and must be balanced against the need to protect the vital interests of the community.  This is where due process and rule of law are vital.

Detention must not be arbitrary and a person can be detained on the advice of a medical health officer only if it is believed that he or she poses a health risk.  It is anticipated that detention orders would be rare and would only be carried out as a last resort.

The issue of detention under the 1947 Health Act came before the High Court in 2008 when a patient with tuberculosis was deemed a probable source of infection.   The patient was refusing to comply with medical care and a detention order was made.  A challenge to the constitutionality of the legislation and the legality of the detention failed.  The Court held that the power to detain under the Act supported an important public interest objective, namely, assisting in safeguarding against the spread of a particular infectious disease amongst the general population.  It should be invoked sparingly and it should not be resorted to except where absolutely necessary.

Nevertheless, the powers of detention conferred by the 2020 Act are different in significant respects from the 1947 Act, including providing for the detention of potential sources, rather than probable sources, of infection. The right of one medical officer of health to make such an order and for this to be subject to a review mechanism, rather than an appeal mechanism, is also important.  The Constitution does provide for a habeas corpus procedure, which allows individuals detained by the state to challenge the lawfulness of their detention.

Human rights law recognizes that emergencies of this nature may require limits to be placed on the exercise of certain rights. The scale and severity of COVID-19 is such that restrictions are justified on public health grounds and there is a positive duty on the state to do all within its power to protect the right to life and health of everyone.  Ireland’s legislative response to the current crisis has been both proportionate and necessary given the scale of the public health emergency.  Nevertheless, we need to be mindful of the fact that the crisis has exacerbated the situation of those that were already vulnerable.

Contact tracing is an important tool in responding to the virus. Data collection of any part of the population has serious risks.  Any contact tracing application should be governed by the usual data protection principles and only the minimum information necessary should be collected.  It is imperative that in order to maintain confidence in any application, evidence of why it is necessary rather than just useful should be provided.

The state’s obligation to vindicate the right to life and the right to health applies without discrimination. We have an obligation to ensure everyone is protected, especially minorities and vulnerable groups. The current treatment of refugees and asylum seekers in the Direct Provision system is a clear violation of our human rights obligations.  It is contrary to the advice of the Chief Medical Officer and poses a public health risk.

We also need to rethink how we respect and protect the rights of our older population.  Lessons must be learned from what has happened to those in care homes.

At an international level, solidarity has been undermined and amongst the immediate casualties of the crisis will be the Sustainable Development Goals.  Emergencies such as this reinforce the need for multilateral solutions and co-operation.  The most important lesson the virus can teach powerful states is to challenge the illusion that invoking the mantle of national sovereignty and boundaries enhances protection.  Only a fully coordinated global response can overcome this crisis and the bedrock of this response must be respect for human rights.