The UK government’s introduction of new restrictions to deal with the “omicron emergency” has prompted backlash from some politicians. When the changes were put to the House of Commons, more than 100 Tory MPs voted against the plans. Several expressed concern over the impact measures such as having to show proof of vaccination to enter certain venues would have on people’s “civil liberties”. They have essentially been invoking human rights arguments to oppose pandemic emergency powers. However, their opposition is based on a misguided and libertarian understanding of the nature of human rights.
Such libertarian opposition to the new restrictions can be seen from some MPs’ recent commentary. Conservative MP Steve Baker, who is in the Covid Recovery Group and a vocal backbencher, accused Prime Minister Boris Johnson of creating a “miserable dystopia” by bringing back rules on face masks and testing and introducing vaccine passes.
Libertarians essentially argue that human rights prevent the state from acting or interfering with your freedom. Any interference to which you do not consent is an act of aggression and is therefore illegitimate. In my book Emergency Powers in a Time of Pandemic, I argue that libertarian understandings of rights as only restricting the power of the state are inappropriate for dealing with a pandemic.
On the face of it, human rights such as those in the European Convention on Human Rights and incorporated into British law by the Human Rights Act 1998 appear to require non-intervention by the state. Everyone has the right to life, everybody has the right to liberty, everybody has the right to privacy, everybody has the right to freedom of expression. Essentially, the state should just leave people alone.
A pandemic, however, actually requires states to be more active, taking positive steps to protect human rights.
For example, the right to life enshrined in Article 2 of the European Convention on Human Rights does not simply require states to refrain from taking people’s lives, it also requires states to protect people from “real and immediate risks”. Likewise, the state must spend resources and implement measures to ensure that conditions in state-run institutions (like hospitals and prisons) do not deteriorate to the level that they infringe on people’s rights to humane treatment.
If MPs truly want to protect people’s rights, they should be in favour of a robust pandemic response. A person cannot exercise their other rights if their right to life is not protected. A human rights law limiting the state’s ability to protect people from a deadly threat would not be of much value. Rather than conceiving of human rights law as simply stipulating non-intervention by a state, the key to the success of the human rights movement is its ability empower or “emancipate” people. This places strong obligations on states to protect and vindicate people’s rights.
Whose rights matter?
At the time of the vote, over 800 people had died within the past seven days from COVID-19. While these numbers appear relatively low when compared with the height of the pandemic, they are significantly higher than the deaths caused by other threats that have prompted the British state to enact draconian powers. From April 2003 to March 2020, for example, 95 people were killed in terrorist-related incidents in England and Wales.
It is striking that, while they are opposing new COVID-19 restrictions on a civil liberties basis, MPs are reluctant to voice concerns over other legislation that clearly infringes on human rights. On the very same day as the vote, the government proposed striking changes to the 1998 Human Rights Act, including restricting the right to family life to make it easier to deport people.
Conservative MPs also recently voted through legislation allowing the home secretary to strip people of their British citizenship without notice, and substantially curtailing the right of people to protest —- a fundamental right in any democracy.
At best, this is inconsistency. At worst, it is rank hypocrisy.
The reason for this can be boiled down to an “us v. them” mindset. Ultimately, it is the idea that most of “us” – “ordinary”, law-abiding people – will feel that counterterrorist powers do not affect us, or that we ourselves are not at risk of being deported. Instead, we view these kinds of human rights restrictions as only impacting the rights of the “other” -— the terrorist, the undeserving. In contrast, the effects of COVID emergency powers apply to everyone.
While this distinction explains opposition to some rights restrictions but not others, it cannot justify this inconsistency. This idea of those deserving versus those undeserving of civil liberties has no place in human rights. We have rights by virtue of the fact that we are human, not simply because we are good citizens.