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Will Johnson’s Coronavirus Response Violate Human Rights Law?

The UK government’s response to the coronavirus once again highlights the contrasts between Britain and continental Europe. Johnson adopts a utilitarian approach. He makes an attempt at an overall assessment of where the majoritarian best interests lie and opts for a light touch response to the pandemic sweeping across the globe. The leaders of the rest of Europe do not weigh up the situation. They recognise the crisis and adopt comprehensive measures to mitigate it.

The responses to the coronavirus sum up the differences in approach to human rights. Worryingly, Johnson’s tactics reveal that he does not believe in human rights. Rather than prioritise the lives of the vulnerable, he prefers a strategy aimed at safeguarding short-term economic considerations. For him the right to life is just one factor to be taken into account in responding to the medical emergency. Merkel, Macron and Italy’s Conte on the other hand put human rights first. The right to health for everyone is prioritised. The ultimate distinction between the two responses is that European public policy is rooted in the right to human dignity. If Johnson’s reaction is anything to go by, respect for dignity is not a priority for the British.

Johnson approaches the pandemic as something “to take on the chin.” That idea that multiple deaths, which could be avoided by a lockdown, are to be borne with apparent equanimity is completely at odds with the notion of the right to human dignity. Human dignity represents the guiding principle of post-war European human rights. In this context it requires each human life to be cherished, preserved and valued to the extent that this is possible.

The fact that infection with coronavirus will likely kill a 65-year-old smoker with chronic COPD and only inconvenience an otherwise healthy person resulting in mild flu-like symptoms, cannot justify a response to the pandemic based on the latter which permits the former. Similarly, human dignity cannot countenance the proposition that if we give the virus a relatively free rein, the population may, at some point, develop herd immunity which may, as a consequence, bring the crisis under control. This is anathema to human dignity if to reach that saturation point requires avoidable deaths.

Human rights law, based on human dignity, demands that all is done to preserve the lives of those who wouldn’t otherwise die if they are not exposed to the virus. To accept multiple deaths simply for some greater majoritarian good undermines the dignity of all. Under the right to dignity, preventing exposure to the virus has to be the Government’s principal priority.

The concept of human dignity can be explained by a case that went through the German courts which required them to grapple with the true essence of this right. The principles that case established are equally relevant to managing the coronavirus. 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 highjacked. 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 human dignity by treating it as 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 are dehumanised and are de-legalised. 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 makes clear that Johnson’s approach to the coronavirus violates dignity. In effect the state is not only sanctioning the loss of life, it dehumanises us at the same time.

Human dignity reinforces the right to life. Under the right to life, the state has a positive obligation to protect and respect life. Whilst UK law does not contain an express right to human dignity as such, the Human Rights Act guarantees the right to life. Foreseeable risks to life must be prevented. The state cannot justify violations of the right to life based on the interests of the majority and/or the economic wellbeing of the country, including an already overstretched National Health Service. The right to life requires avoiding the deaths of vulnerable people by reducing their risk of exposure to the virus in the first place. Special measures may need to be adopted to protect those most at risk.

Does Johnson’s strategy discriminate against vulnerable people in relation to their enjoyment of the right to life? Ultimately this will be a decision for the courts, but if it could be established infections and deaths could have been avoided, the government will be in trouble. The rights in the Human Rights Act, including a prohibition on discrimination, can be enforced by the UK courts.

Human rights are solution orientated. They are designed to be practical tools to help governments think through dilemmas and to reach solutions that do not disproportionately interfere with human rights. For example, the right to protection from arbitrary detention permits arresting and confining people as a last resort as a measure to deal with infectious diseases. In a crisis threatening the life of a nation, it is possible, in the short term, to suspend human rights.

As the coronavirus has shown us, we never know when we may need to rely upon our human rights. Amongst the rights in the human rights toolbox is the right to health. In the context of an epidemic it requires that the vulnerable and marginalised are as protected as everyone else.

Whilst we are in the transition period, EU law continues to apply. So does the jurisdiction of the Court of Justice of the EU. The EU Charter of Fundamental Rights also remains in force, alongside the rest of EU law, including the principle of free movement. As well as a right to life, the Charter contains a right to human dignity and a right to health. It will be a fitting tribute to that remarkable document if it were used to show up Johnson’s coronavirus strategy for what it is, a dangerous, elitist, arrogant tactic which considers some lives more worthy of protection than others.

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