Covid-19 and human rights in the UK

Analysis of Covid-19 legislation from a human rights perspective, by Adam Wagner (barrister at Doughty Street Chambers, Visiting Professor in Law at Goldsmiths University of London and special advisor to UK Parliament’s inquiry into Covid-19), in conversation with Professor Dimitrios Giannoulopoulos (Head of the department of Law at Goldsmiths).

Covid-19 deaths are very likely to give rise to significant number of legal claims in courts, in the context of the duty to protect the right to life (under Art 2 of the European Convention on Human Rights). The ensuing litigation will be highly complex: (a) the key question will be whether the government provided wrong or insufficient equipment, despite having an opportunity to provide the right equipment; (b) causation issues will be difficult to tackle, ie did the victim die as a result of having not been provided with the right PPE?; (c) courts are likely to take into account the global shortage in PPE, and generally tend to shy away from what may be considered pure political decision making; (d) whether failures could be seen as systematic would be key (in line with ECHR case law).

On the Covid-19 lockdown legislation in the UK:
Differences in the content of legislation, official guidelines and government guidance to the public have caused confusion and unpredictability as to police enforcement, e.g. regarding restrictions on the amount of times you can go out to exercise: there is no such restriction in the law in England, Scotland and NI, for instance, though government guidance is to go out only once, which is also what the law in Wales provides.
The question whether the police response to the Covid-19 legislation is good or not is an open one too. There were signs of police adopting a heavy-handed approach early on. For example, the Derbyshire Police engaged drones to monitor the lockdown in the Peak District, followed by “lockdown shaming”. The police should have adopted a public-health centred approach instead, ie focus on stopping mass gatherings only (the obvious big threat here), not worrying about “people going out to buy an Easter egg” or “having a picnic in the middle of nowhere” for instance. The powers that police were afforded should be used as a last resort.

A level students reflect on government attitudes towards liberty and the rule of law

Professor Dimitrios Giannoulopoulos, from Goldsmiths University of London, Faculty of Law, gave a lecture to Collyers’ students on the operation and significance of human rights against the socio-political backdrop of continuing Euroscepticism and Brexit.

Janene Weymouth, Head of Law at Collyers, who organised the event, was extremely pleased with its success: “The lecture theatre was full to maximum capacity of students from all disciplines. The event truly demonstrated the enthusiasm of the younger generation engaging in contemporary political/legal issues.”

A-Level Law student Jacob Tasker commented: “The Human Rights lecture was incredibly interesting and highly informative. In addition to the content being an excellent supplement to our A-Level Law course, it encouraged the audience to consider the significance of the European Convention on Human Rights, now more than 50 years old, within a modern society. In particular, the importance of democracy, rule of law, individual liberty, and respect and tolerance within a pluralistic society.”

Deputy Principal Steve Martell was delighted: “Huge thanks to Dimitrios Giannoulopoulos for today’s inspiring and informative lecture. We are also incredibly grateful to Janene Weymouth for co-ordinating this wonderful learning opportunity for our students.”

How is illegally obtained evidence a challenge for human rights?
Inaugurating Goldsmiths Law’s “European encounters”: The Council of Europe and Artificial Intelligence

Goldsmiths Law is delighted to launch a programme of “European encounters”, intended to bring our students, academics and the wider public in the UK in contact with European institutions, to shed light on the work they are doing in key areas of activity influencing our day-to-day lives; justice, security, the environment, commerce, financial services, the rule of law, technology, international human rights.

Picture1 - Inaugurating Goldsmiths Law’s “European encounters”: The Council of Europe and Artificial Intelligence

In this first session in the series, on Tuesday, March 5, 09.30 to 11.30, we have the pleasure of welcoming to the College the Council of Europe’s Charlotte Altenhöner-Dion, who is the Head of the Internet Governance Unit and Secretary to the Expert Committee on Human Rights Dimensions of Automated Data Processing and Different Forms of Artificial Intelligence (MSI-AUT). Book your place here.

Charlotte will bring to our attention the Council of Europe’s efforts to assess both the threats and opportunities of Artificial Intelligence (AI) for human rights. The Council of Europe’s new website on AI provides a useful illustration of recent initiatives, forthcoming events, and projects planned.

The Council of Europe with its 47 member states is the continent’s leading human rights organisation and guardian of the rights of some 830 million Europeans. Technological advancement over the last decades has fundamentally transformed societies by providing new tools for communication, news consumption, education, entertainment, commercial transactions and multiple other facets of everyday activities. Operating on the detection and reinforcement of patterns in large datasets, information processing technology offers the potential to rationalise services and deliver enormous efficiency gains in task and systems performance, which may enhance human flourishing and contribute to creating optimal conditions for the exercise of human rights.

algorithm 3859539 1920 300x200 - Inaugurating Goldsmiths Law’s “European encounters”: The Council of Europe and Artificial Intelligence

Increasing numbers of Europeans reap the benefits of AI every day as unprecedented progress is made in a wide range of fields, including industrial productivity, health care, transportation and logistics. At the same time, there is growing concern amongst the public about the broader implications of the use, and possible abuse, of automated data processing and mathematical modelling for individuals, for communities, and for societies. Can computational data analytics replace the reasoning of a trained judge when applying the law to a specific context? How does algorithmic decision-making affect the delivery of essential public services and our recruitment and employment conditions? Can individuals remain visible as independent agents in societies that are shaped by optimisation processes? What is the effect on freedom of expression and the plurality of public communication spaces when individuals are micro-targeted with messages that are based on profiling? And finally: how does the increasing reliance on mainly privately developed and run technology square with the rule of law and the fundamental principle of democratic societies that all power must be accountable before the law?

Charlotte Altenhöner-Dion will attempt to provide answers to these questions, reflecting on Council of Europe work in this area, including  the adoption of the first European text defining the ethical framework for the use of AI in judicial systems; the draft ‘Declaration on the manipulative capabilities of algorithmic processes’ (which is being discussed on February 12) and the high-level conference in Helsinki on 26 and 27 February 2019 on ‘Governing the Game Changer – Impacts of AI on Human rights, Democracy and the Rule of law’.

Charlotte Altenhöner-Dion has a law degree from Hamburg University and an LL.M. in International Law from Georgetown University. She has been with the Council of Europe for the past ten years, having previously worked for the OSCE and the UN, including in Central Asia, the Balkans, and East Africa. Her current professional focus lies on the human rights impacts of digital transformation, intermediary liability, and the institutional challenges of governing fast-moving technologies in a rights-compliant manner, while adhering to the principles of democracy and the rule of law.

The ”European Encounter” series echoes the Law programme’s intention to offer its students unique opportunities to engage with UK and European policy makers, and to explore cutting edge issues such as the relationship between technology and European human rights. You can read more about areas of specialisation in the LLB Law programme here

ECHR impact in the UK

On 22nd of January 2019, the Royal Society of Arts hosted our latest Knowing Our Rights seminar. Experts in human rights discussed the European Convention on Human Rights’ (ECHR) impact in the UK, from both legal theory and legal practice perspective. The discussions underlined the substantial increase in the protection of British citizens’ rights since the Human Rights Acts 1998 (HRA) came into force (in 2000). All along the seminar, experts aimed to provide keys to understanding the significance of the HRA in citizens’ lives at a time where the Act is being questioned by the government.

Jonathan Cooper OBE (Doughty Street Chambers) recalled how weak the protection of British citizens’ rights used to be before the adoption of the Act. When many fundamental rights, like the right to privacy, the right to equality or the right to protest, were not formally guaranteed by common law, minorities and vulnerable citizens did suffer from serious discriminations and denials (e.g. persecution of homosexuals, denial of LGBT identity, corporal punishment in schools…). Since the HRA was implemented, the proportionality test (balance between an individual’s rights and public interests) has been a key element in human rights’ effective protection.

Nadia O’Mara (Policy and Campaigns Officer, Liberty) explained how Non-Governmental Organizations (NGOs) like Liberty challenge the use of indiscriminate surveillance powers by British enforcement authorities, on the basis of Article 8 of the ECHR (right to respect for private life).

Maya Sikand (Head of the Human Rights team, Garden Court Chambers) went on by evoking her own experience at court, in order to point out the influence of article 8 (right to respect for family life) on British case law. She referred to the more extensive approach recently adopted by courts who take into consideration the defendant’s children’s right to respect for family life before deciding whether to send their primary carer (usually their mother) to prison.

After recalling the British government’s reluctance to grant prisoners the right to vote and the European institutions’ relative tolerance regarding this issue, Ruvi Ziegler (Associate Professor in Law, University of Reading) underlined the upcoming issues related to the right to vote for British citizens living outside the UK or in Northern Ireland after Brexit. 

Liora Lazarus (Associate Professor in Law, Oxford; Fellow, St Anne’s College and Head of Research at Bonavero Institute of Human Rights) drew attention on the tension between human rights protection and security policies that has characterized the last two decades. She condemned the tendency to draw a distinction between deserving and undeserving right-bearers (terrorists…).

This warning echoed Professor Dimitrios Giannoulopoulos’ (Law, Goldsmiths University of London) introductory speech. He had referred to the different theories of human rights: whether they should be considered as universal values or just as legal products with a ‘use by’ date…

Then, Adam Wagner (Doughty Street Chambers, founder of RightsInfo and UK Human Rights Blog) insisted on British citizens’ lack of knowledge of human rights (as to what rights actually consist of). A link could seemingly be established between the lack of education on rights (and misinformation spread by politicians and media) and people’s scepticism and hostility towards human rights.

That’s why it is necessary to make practical use of Convention rights, as Sanchita Hosali (Director, British Institute of Human Rights) explained. Once they are aware of their rights, citizens, in their everyday lives, are able to remind public institutions of their duty to respect those rights.  Concluding the seminar, Sir Geoffrey Nice QC (Visiting Professor in Law, Goldsmiths University of London) called for public awareness of what is at stake as to the future of human rights’ protection. He invites us to ask ourselves: what’s best? Having our rights dealt with by British lawyers, OR having them guaranteed by lawyers and judges, not only from Britain, but from all across Europe?

Britain in Europe Open Society Foundation Goldsmiths University