Coronavirus Bill

Baroness Ludford Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 24th March 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, the only bright spot in this crisis is that experts are being listened to; long may that continue.

Obviously, the overarching concern is that the powers in the Bill should last no longer than is strictly necessary, should not overreach and should not set unwelcome precedents—one thinks, for example, of the reduction to one doctor for the exercise of Mental Health Act powers and the problems around care assessments. Moreover, the powers should not impact unfairly on disadvantaged minorities or marginalised groups, and should not go further than can be truly justified. It is not entirely clear why the Civil Contingencies Act or the Public Health Acts were insufficient in various areas.

In Schedule 21, there is a test of necessity and proportionality which is strangely absent from Schedule 20—the one that affects directions to people. From these Benches, we will therefore table an amendment to require that all the powers in the Bill should be exercised in accordance with the principle of necessity, proportionality and non-discrimination, respecting the European Convention on Human Rights and other human rights instruments. We also want the Government to keep the powers under frequent review and to publish reasons and explanations for any measures introduced under the Bill.

Although the right to life—Article 2 of the ECHR—underpins the response to this pandemic, human rights issues under several articles of the convention are engaged: Article 5 on the right to liberty; Article 8 on the right to family life, as relating to isolation, quarantining and restriction of family visits; Article 11 on freedom of assembly and association, relating to the prohibition of public meetings and gatherings. These are just some of the examples. I am glad that the Joint Committee on Human Rights, chaired by the right honourable Harriet Harman—I declare an interest as a member—is conducting an inquiry into the human rights implications of the response to Covid-19.

There have been shocking cases of victimisation and blaming of certain people due to their perceived ethnic or national origin, particularly those of Chinese and other east Asian appearance. The power for local authorities not to meet some assessed care needs and to avoid the duty to conduct a care needs assessment will impact on the vulnerable. The Government should, at a minimum, notify the Council of Europe and the United Nations, as stewards of the ECHR and international human rights instruments respectively, that the UK is enduring a national emergency, and of the measures being taken. Do they in fact need to formally derogate? Perhaps the Minister could tell us.

People need to be able to assess, scrutinise and, if necessary, question and challenge the Government. It is not helpful to have a Minister on Twitter call someone by a rather vulgar term because they had the temerity to raise questions about the Government’s approach, as happened yesterday. Apparently, there have been no advertisements on social media. I am on only Twitter so I do not see Facebook, Instagram or any of the others but, considering that a lot of money was spent on Brexit no-deal ads on social media, this omission seems anomalous.

Assessing Schedules 20 and 21 is a bit difficult, as we do not yet know how the Government will give effect to the measures heralded in the Prime Minister’s announcement last night. I imagine that is still being worked through. Schedule 20 does raise a lot of concerns. Where are people to be directed or detained? Is a police station envisaged or just home? What screening is to take place, especially given the lack of current testing capacity? Will there be any judicial authorisation of detention or any provision for appeals? What about people who, for one reason or another, do not have a home to go to—the street homeless, sofa surfers, victims of domestic abuse, some immigrants and refugees, who get little or no support? Surely imposing isolation and quarantining restrictions on people living in abusive or dangerous environments would place them in an impossible situation. As concerns Schedule 21, are the closure of premises regulations issued just last Saturday under the public health Act—they were mentioned by my noble friend Lord Newby—to be revoked in the same way as the February regulations on direction and detention of persons are repealed by this Act in Schedule 20?

I want briefly to mention one or two other things. I entirely agree with the noble Lord, Lord Falconer, and the right reverend Prelate the Bishop of Rochester, who raised issues about funerals and religious beliefs as concerns the need for burial and not cremation. As someone who organised my late husband’s funeral just five months ago, and a memorial service four months ago, this is very important to me. I will perhaps have more chance tomorrow to raise concerns about immigration powers as they affect people in immigration detention as well as in prison. Also, the fear of data sharing with the Home Office could deter people from seeking health treatment. Will the Home Office undertake to suspend that data sharing?

There are also some concerns about video hearings in court. Much as one accepts that they are necessary in the circumstances, various safeguards would be required. There are also concerns about changes to the Investigatory Powers Act and the extension to 12 days for a warrant. From experience, we know that there is a ratchet effect of expansion of state powers, as terrorism legislation has shown. We will need to be vigilant to prevent spillover.

Coronavirus Bill

Baroness Ludford Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 25th March 2020 Lords Chamber

[Baroness Ludford (LD)]

As a signatory to the amendment moved by the noble Lord, Lord Anderson of Ipswich, I give it very strong support. I agree with everything that he said. He referred to his experience as the Independent Reviewer of Terrorism Legislation and to how valuable he found the transparency of reasons being given. That should send a very strong message to the Government about how important his amendment is.

--- Later in debate ---

Moved by

[Baroness Ludford]

13: After Clause 99, insert the following new Clause—
“Powers within the Act: necessity and proportionality All powers under this Act must be exercised in accordance with the Human Rights Act 1998 and the Equality Act 2010, especially with regard to the principles of necessity, proportionality and non-discrimination.”Member’s explanatory statement
This amendment would require the powers in this Act to be exercised in accordance with the principles of necessity, proportionality and non-discrimination and to be compatible with human rights law.

--- Later in debate ---

[Baroness Ludford]

My Lords, my amendment is supported by the noble Lord, Lord Anderson, and I believe that the noble and learned Lord, Lord Falconer, is also in favour. It is pretty self-explanatory and should not cause the Government any problems in accepting it. Indeed, the Minister, in replying just now, talked about getting advice from scientists on what was necessary.

The Minister has made a declaration that the Bill is compatible with the European Convention on Human Rights, but the amendment would provide further reassurance. According to the long title, the Bill is to:

“Make provision in connection with coronavirus; and for connected purposes.”


That is quite wide. There are references to a test of necessity—or, variously, necessity and proportionality—in some provisions in the Bill but not in others. There is no consistency, for instance, even between Schedules 21 and 22.

Our Constitution Committee, which I thank for its report, says at paragraph 16 that

“there may be a need to resolve difficult legal questions concerning the proportionality and necessity of restrictions and directions, and of their compliance with the Human Rights Act 1998”,

and by “resolve” it means in the courts. It would obviously be preferable to front-load those tests by requiring the Government to observe them in exercising all their powers under the Bill, which is what this umbrella amendment would provide, rather than load up the courts.

In parallel with these tests, the Delegated Powers Committee report, which I thank the committee for, drew attention to the absence in some clauses of a reference to the coronavirus crisis as justification. That mainly concerns postponement of elections, but not exclusively. I am therefore doing precisely what the committee suggests in paragraph 9 of its report—I have given the Minister notice of these requests: I

“seek an explanation from the Minister about why these powers are not, on the face of each individual clause, explicitly linked to coronavirus”,

and

“look to the Minister to provide an ironclad assurance that the powers contained in the Bill will be exercisable in relation to the coronavirus outbreak only and in no other circumstances.”

Lastly, will the Minister clarify the situation with regulations? The ones issued last Saturday under the Public Health Act, on premises, are not abolished by the Bill, but the February ones, on persons, are. In a reply during Second Reading yesterday, the Minister said that the powers to enforce the Prime Minister’s instructions regarding essential travel and gatherings

“will be introduced by regulations under the Public Health (Control of Disease) Act 1984.”—[Official Report, 24/3/20; col. 1733.]

But I have learned from tweets by journalists that those will be introduced tomorrow, when we are not here. As I asked at Second Reading yesterday, how will these regulations mesh with the Bill and with regulations to be made under it? I beg to move.

[Lord Anderson of Ipswich]

My Lords, I signed Amendment 13 and I offer two sentences on it. The amendment will have no legal effect because, admirably, nothing in the Bill seeks to oust or modify provisions of the Human Rights Act or the Equality Act. But if the Minister can confirm that there is no intention of departing from those important statutes, that would be a powerful signal to the sceptics and conspiracy theorists, both here and abroad, who might otherwise wrongly suggest that in enacting this unfortunately necessary legislation, we are abandoning some of the fundamental legal and moral principles that bind us together.

--- Later in debate ---

[Lord Bethell]

My Lords, the noble Baroness, Lady Ludford, and all those who have signed up to this amendment have made incredibly important points that the Government utterly confirms. I reassure the Committee that this Bill is very clearly focused on the present danger of SARS-CoV and the Covid-19 disease. If there is any other virus—and even if this virus mutates— we will need a new Act or at least to amend this one.

The Government are 100% committed to protecting and respecting human rights. We have a long-standing tradition of ensuring that rights and liberties are protected domestically and of fulfilling our human rights commitments. That will not change. We have strong human rights protections, with a comprehensive and well-established constitutional and legal system. The Human Rights Act 1998 gives further effect in UK law to the rights and freedoms contained in the European Convention on Human Rights. Nothing in this Bill contradicts that.

I reassure a number of speakers—including but not limited to the noble and learned Lord, Lord Falconer, the noble Lord, Lord Anderson, and the noble Baroness, Lady Kennedy—that there is nothing in this Act that allows the Government to breach or disapply the Human Rights Act or the Equality Act. The Bill itself is fully compliant with the Human Rights Act and the Government have certified this on the face of the Bill— in fact, I signed it myself in accordance with Section 19. Pursuant to Section 6 of the Human Rights Act, every exercise of power by a public authority under this Bill is already required to be compliant with the Human Rights Act. I further reassure the House that, at all times, this Government will act with proportionality.

I am advised by legal counsel that the amendment is potentially both unnecessary and unhelpful. If we accept it, it might imply that the Human Rights Act and Equality Act do not apply in this way in other Bills or Acts that do not feature this sort of provision. For that reason, I suggest that the amendment should be withdrawn.

[Baroness Ludford]

My Lords, I thank the Minister for what he said, which gave considerable reassurance—up to the last sentence or two. I was permitted by the Public Bill Office to table this amendment, so I am therefore slightly surprised at his reporting of the advice he has had from legal counsel. Obviously, I have to take note of what he said. No doubt they have greater legal minds than mine, although I note that the noble Lord, Lord Anderson, co-signed my amendment. I am a little taken aback by what the Minister said, but I none the less welcome the rest of his response. I beg leave to withdraw my amendment.

Amendment 13 withdrawn.