The UK Parliament passed the Coronavirus Act 2020 in May in response to the unprecedented international health crisis Covid-19. With this introduction came voiced concerns over the impact on civil liberties that the extensive measures have and its direct contravention with the European Convention on Human Rights (ECHR). Two provisions which emphasise this point are the schedules on mass surveillance and detention of ‘potentially infectious persons’.
Firstly, mass surveillance. Under Schedule 22 mass surveillance was authorised on the grounds that it would ‘protect national security and prevent serious crime’, similar to the provisions found under the Investigatory Powers Act 2016. The provisions allow urgent surveillance warrants to be executed without prior judicial authorisation. Such unprecedented powers which allow the execution of warrants without judicial approval until after the fact opens the gates to those in power abusing their position. Arguably such invasion raises challenges under Article 8 of the ECHR, ‘right to privacy’ and reflect a disproportionate erosion of our civil liberties. Arguably, under schedule 22, the authorities are given access to our personal lives without appropriate safeguards. Furthermore, the ease at which this measure was introduced raises concerns about how easily such provisions could be extended and passed even after Covid-19.
Secondly, the 2020 Act allows the detention of ‘potentially infectious people’. Such a broad statement opens the possibility for police officers to detain a large proportion of the public if necessary. The period of detention extends to the full 14 days of the infection period. However, with a large proportion of the public ‘asymptomatic’, police could interpret such provisions to give them the power to detain any number people on grounds they are ‘potentially infectious’. Under Section 5 of the ECHR, individuals have a right to liberty which comes into direct contradiction with such extensive powers of detention for the length of time provided. Due to the nature of the virus, our democratic freedoms are playing second fiddle to government powers due to the broad interpretation of the legislative provisions.
However, it is important to remember that Article 5 is a qualified right which allows authorities to interfere in exceptional circumstances. Indeed, the European Court of Human Rights set out that detention in such circumstances is lawful to prevent the spread of Covid-19 when it is a ‘last resort, and the person is a danger to public health or safety’. This would suggest that appropriate safeguards are in place to protect our civil liberties so that detention is only required in exceptional circumstances.
Therefore, despite the challenge’s the measures raise to our civil liberties and those enshrined in the ECHR, it is important to analyse the actions of the government in the backdrop of the unprecedented international health crisis we now face. Never before have we experienced a crisis that has threatened to overwhelm the NHS. Fast and strict measures had to be implemented to allow for the government to effectively combat the coronavirus at the cost perhaps of our civil liberties for a period. The toughest provisions were introduced in the best interests of public health and safety, particularly those in our society who are most vulnerable. The government are themselves, under a positive obligation to take proactive steps to protect the public under Article 2 of the Convention of Human Rights and the measures can be seen to do just that. There is a consensus that the current sacrifice of our civil liberties is accepted for the long-term benefit of beating Covid-19. The main point is that these provisions are temporary and therefore are not eroding our civil liberties but are simply a reflection of the necessary measures needed for a finite period to deal with this crisis.
Thus, Covid-19 has shown the government’s ability to overnight introduce tough and intrusive policies to govern our lives at the cost of encroaching on our civil liberties. Civil liberties compromise one of two central roles of a democratic state, the second being the provision of goods. However, it is highly unlikely that such intrusive measures as those that are currently in place will continue after the two-year mark. The safeguards implemented such as debating its implementation every 6 months prevents an infinite extension of such powers. It is also important to note that many of the provisions we see as tough under the 2020 Act already exist, such as detention without charge under the Terrorism Act 2006, without clear guidelines as to the execution and limitations of these powers. The measures therefore are not eroding our civil liberties but providing a stop-gap in the legal landscape that governs our civil liberties for a finite period.
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