Coronavirus and the Proceduralisation of Rights
The House of Lords Constitution Committee recently published its recommendations in relation to the government’s fast-tracked Coronavirus Bill 2020. The House of Lords debates have welcomed the government’s decision not to derogate from the ECHR (in contrast to several other contracting parties). However, in seeking to ensure ECHR-compliance of the proposed scheme, the Committee placed significant emphasis on the availability of judicial review and administrative oversight of the powers contained therein to ensure their legality and constitutional acceptability. In this piece I suggest that, whilst these suggestions are no doubt welcome, the Committee’s focus on procedure rather than on the substantive requirements of human rights is indicative of wider concerning trends in human rights discourse.
Elsewhere, a group of constitutional lawyers has suggested that the Bill should require written reasons to be given where any power interfering with rights is exercised, and that court fees should be waived for challenges brought under the Bill. Relatedly, Lord Anderson (HL Deb., Vol. 802, Col.1765 (25 March 2020)) has drawn an analogy between the coronavirus context and security service surveillance law, in which human rights standards are generally met if judicial, and other procedural safeguards concerning executive power are in place (see for example R (National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department  EWHC 2057 (Admin)).
These suggestions reflect a more general phenomenon occurring in our discussions on human rights: that of proceduralisation of rights. In situations of “emergency”, such as that of counter-terrorism or pandemics, courts and the law, in general, are perceived to have lessened competence. Courts tend, in such situations, to ensure that restrictions are “in accordance with law”, prioritising procedural mechanisms such as recourse to administrative or judicial oversight, without much interrogation of the substantive requirements of those rights in the particular circumstances.
I want to suggest here that, far from being an area of “pure politics” in which human rights law has little application, we can draw on the rich vein of substantive human rights law in our debates to help resolve these difficult issues. This is necessary in order to strengthen (rather than weaken) the normative role rights play within our civil discourse. For example, Article 2 ECHR (which is non-derogable) imposes the positive obligation on states to “take appropriate steps to safeguard the lives of those within their jurisdiction” (Brincat et al. v Malta, §§ 79-80), including taking “necessary measures” in relation to “life threatening diseases” (Human Rights Committee General Comment no. 36, § 26). The right to health, recognised for example in Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), imposes similar systemic obligations on states.
These obligations must, of course, be balanced against the other rights in play. For example, the right to liberty under Article 5 ECHR is plainly engaged by the Bill, but note that the content of that right permits exception in order to prevent the spread of disease (Article 5(e)). Our rights to family life, as well as the rights of migrants and prisoners who are suffering further restrictions to their liberty, are also in play. We need to address this balance head-on in our discussions, rather than deferring these questions to ex post judicial and administrative oversight, later on, all the while noting that the extreme circumstances give the balance a particular quality here. If we fail to use the apparatus of substantive human rights law in times of emergency, we risk undermining its claims to universality and practicality in times of relative calm.
To conclude, whatever the merits are of proceduralisation in the security context (I do not give a view here), we cannot let that jurisprudence infect the nature of rights discourse in all emergency situations. When courts analyse counter-terror measures taken by security services, the secrecy of those measures means that courts rarely are informed of the substantive impacts such measures have on individual cases and therefore are limited to ensuring that powers are exercised under sufficient procedural oversight. The normative considerations are different during a pandemic, where the important information is publicly available, meaning that there is little need to limit ourselves to discussing the procedure. The vocabulary of substantive human rights law can, therefore, help foster richer and ultimately more fruitful discussions.