As of the start of 2021, several of our human rights have been eradicated, yes eradicated.
All of our right to assemble with our friends and our acquaintances and to our normal family life, in the normal sense of these words, have gone. Take me as an example. I am forbidden to meet my four adult children and/or to hug them and have been for months. Unless I have a good childcare reason, I really can't meet them at all. Nor my siblings, nor my lifelong friends. And this can no longer be described as an emergency situation. It's almost a year and it looks like it is going to be at least 18 months. That is not an emergency in anyone's language.
What is even worse is that the Institute of Government (UK-based) said on 28 January that there will be no return to normal and that 'precautions may have to be taken for a long time, perhaps for our lifetimes'.
We cannot even assemble normally at a funeral. Accept the fact that about 80,000 people die in Scotland within an 18 months' period, regardless of Covid. That is a shocking number of dying people unhugged by their friends and family in their final days and then sent off with the dampest of damp squibs. Saying goodbye is part of the grieving process. The denial of all that is, I think, simply cruel.
Also freedom of religion is well, no longer free. Church services in person are again banned. And freedom of expression of opinion? If it's on Covid management, let's say we are on very thin ice. No protests and an army of hostility against any contra views to government speak. Just look at Twitter or Facebook on the subject.
Children of all ages have been banned from the classroom even though the risk to them is minimal.
Has our State made available an effective remedy in the light of these breaches? Not that I know of. Not that anyone knows of. Instead, we have a suite of fixed penalties in police hands and rights apparently to enter as far as our hearthrug to see if Article 8 is being exercised.
I know this was not Scottish, but check out the website of West Midlands Police to read their apology for the recent Solihull Covid confrontation of a guy who they called an idiot and threatened with arrest while walking to his work. They now say they are sorry. Police Scotland carry prominently on their website today New Police Powers (about Covid). This is about power not freedom.
Dystopia suggests an imagined state of great suffering and injustice. But are we there already?
The Convention on Human Rights became the basis of law in 1953 to drag society away from the horrors of the Second World War, and times shortly before that, mostly directed at horrors upon Jewish people but not entirely. These rights became established. (Even though the UK did not have its own Act of Parliament until 1998, we Brits could go to Strasbourg to enforce our rights, if necessary.) The following list and comments come from Amnesty International:
– obligation to respect human rights.
– right to life.
– prohibition of torture and cruel, inhuman and degrading treatment.
– prohibition of slavery and forced labour.
– right to liberty and security.
– right to a fair trial.
– no punishment without law.
– right to respect privacy and family life. This right exists to protect four things: our family life, our home, our private life, and our correspondence. We have the right to live with our family and our loved ones, the right not to be placed under unlawful surveillance, or for us not to have personal information spread about us against our will. Respect for correspondence allows for us to communicate with others freely and in full privacy.
– freedom of thought, conscience and religion. We all have the right to hold religious and other beliefs. We also have the right to change these beliefs when we choose. We should be free to worship and express our beliefs both in public and private spaces.
– freedom of expression. We have the right for us to hold our own opinions, to express our views and ideas, and to share information with others. This article can protect our right to express views that some may find unpopular or offensive.
– freedom of assembly and association.
– right to marry.
– right to an effective remedy. If our rights are violated then we must be able to challenge this through legal means. The state must make arrangement for this, and there may be compensation for any damage caused to us.
– prohibition of discrimination.
– derogation in time of emergency. A state can choose to ignore some specific rights in the ECHR at a time of war or other emergency threatening the life of the nation, but any removal of rights should be limited to those absolutely required by the situation. A state must always make sure these measures are consistent with its obligations under International Law.
– restriction on political activity of non-nationals.
– prohibition of abuse of rights. Nothing in the ECHR allows for any state, group or individual to destroy the rights and freedoms that the convention protects.
– limitation on use of restriction of rights.
The (UK) Human Rights Act 1998 basically gave us Brits the same protections under our own law but especially included a right to education. Who would have thought that a British Government would take away so much of those rights and apparently with so little parliamentary debate?
The present in context
How did we get here? It's the pandemic isn't it? The government's stated need to save the Health Service, in which they massively underinvested, is the driver, coupled with a stated desire to protect lives when the average age of death in Scotland is higher than the average age of life expectancy. All that must be under Article 15 and derogation in an emergency. Have they said so? I must have missed it. The Article 15 emergency is, of course, limited to the 'emergency'. As I asked above, can we have an 'emergency' for almost a year and a half? No doubt our government will say yes you can and yes we have. Put it this way, they may say, it's an emergency until we say it isn't.
You may think their actions are entirely justified because you too share the view that there is an ongoing, very slow moving, emergency. I quite understand that point of view although I do not share it. The consequences in the collapse of general medicine and the mushrooming of the mental health crisis, that is still to be declared, need to be much better weighed in the account in my opinion. If you read my earlier article in SR (2 December 2020
), you will know how troubled I am by the lack of any public information on suicide rates. It is shocking.
The British Institute of Human Rights states on its website today the words of the Secretary General of the UN, António Guterres, who said this:
... human rights cannot be an afterthought in times of crisis – and we now face the biggest international crisis in generations... human rights can and must guide COVID-19 response and recovery... The message is clear: People – and their rights – must be front and centre.
Where the future?
What will it be next time, now the government has developed a taste for breaking these fundamental rights of freedom which have remained unbroken for almost 70 years since two hellish World Wars? The concept of the slippery slope argument and its effect would lead one to the conclusion that it will be even easier for our politicians the next time. The idea that your fundamental right to your family life could slip down the drain in Britain seemed crazy until 2020. Now it feels like a bottomless pit and we have no idea if we will ever hug our grandparent again. Many poor grandparents will have sadly died in the meantime and without any hugs. The implacability of the politicians against that obvious need is one of the reasons I do not share the view of that 'emergency'.
What if the institute of government is right and this pandemic is perpetual? What if there is another pandemic hard on the heels of this one? What if we have an energy crisis so that travel is not in the public interest? What if there is a series of climactic events which jeopardise general safety? Will our politicians keep getting their new anti-freedom templates off the shelf and say again stay at home, no hugs, no family visits, no freedom? The slippery slope is indeed slippery.
Not though if we remain on our guard. Dystopia is never in the public interest in the long-term. Are you and your children and grandchildren feeling 'front and centre', to use Guterres' words, after all these months?
John Macmillan is a lawyer specialising in employment law