The current coronavirus crisis has highlighted the weaknesses of UK law and the system of government. The Prime Minister spent weeks obfuscating. Each day he equivocated more and more people were exposed to the virus. Whilst the British were instructed in how to improve our handwashing techniques, Italy went into lockdown. The rest of Europe followed closely behind. The British were encouraged to keep calm and carry on.
The UK Government’s response to the coronavirus once again highlights the contrasts between Britain and continental Europe. Johnson opted for a utilitarian approach. Where was the majoritarian best interest, he asked? The leaders of the rest of Europe adopted a human rights response. They recognised the crisis and adopted comprehensive measures to mitigate it.
For most of us the coronavirus is a nuisance. If we succumb, we will survive and bounce back. For a significant minority of already vulnerable people, if they are infected death is a realistic upshot. Intensive and invasive hospital treatment is an inevitability. The best outcome for these people is to avoid exposure to the virus.
The utilitarian approach originally favoured by Johnson sought to balance competing interests. In effect the right to health was compared with economic best interests. He sought to guarantee a bit of both, thus accepting a degree of exposure to the Covid-19.
For Johnson, the right to life was just one factor to be taken into account in responding to the medical emergency, whereas the right to health for everyone should have been prioritised.
Instead of allowing for the vagaries of utilitarianism, public policy should be driven by the right to human dignity. Under the right to dignity, preventing exposure to the virus would have to be the Government’s principal priority. To accept multiple deaths simply for some greater majoritarian good undermines the dignity of all.
Human dignity can be explained by a case decided by the German Constitutional Court. After 9/11 a law was passed by the German Parliament which authorised the shooting down of a passenger aircraft in the event that it was hijacked. The court found such a law demeaned human dignity. Human dignity is guaranteed by Article 1(1) of the German Constitution, which states, “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
If, mandated by the law, a hijacked aircraft were shot down, the court held, that would subordinate the human dignity of the passengers onboard. It would become a quantifiable entity that can be measured and weighed in the balance. Under that law, people, in such circumstances ceased to be people and instead became mere objects or things, the court found. They were dehumanised. Sacrificing a small number of innocent lives for the greater good could not be sanctioned by a law in this way.
This explanation of human dignity suggests that Johnson’s approach to the coronavirus has violated dignity. By accepting some will be sacrificed for a greater good dehumanises us all.
Human dignity reinforces the right to life. Under the right to life, the state has a positive obligation to protect and respect life. In this context, both the right to human dignity and the right to life requires avoiding the deaths of vulnerable people by reducing their risk of exposure to the virus in the first place. If that meant a lockdown weeks ago, that should have been the course of action that was pursued.
Johnson’s utilitarian approach to the pandemic has failed the British people. Had his starting point been to preserve the human dignity of all within the UK, a far more effective and responsive strategy would have emerged. It would also have provided clarity, legality and certainty. That strategy would have been far more resilient to legal challenge.
Is scarcity of resources, or failure to adequately prepare for the current crisis, a justification for denying human dignity? To seek to establish yardsticks which would value one life over another would fundamentally undermine the core principles of human dignity and to even contemplate drawing up criteria which would formalise the suggestion that one person’s life is worth more than someone else’s could not be countenanced. This need not prevent difficult choices being made, but each one is an individual assessment.
The principal lesson to emerge from this crisis is that UK law needs a firmer underpinning from the right to human dignity. A Human Dignity Act needs to be passed which requires that all branches of government give effect to human dignity in everything they do. The HDA would work in tandem with the rest of UK law, including the Human Rights Act. Conferring upon the right to human dignity the protection of law will enhance government. As we are witnessing, we belittle human dignity at our peril.