CGP0015

 

Written Evidence submitted by COVID-19 Review Observatory, Birmingham Law School, University of Birmingham

 

Executive Summary:

 

 

 

1. The impact of provision of PPE to NHS and social care organisations on human rights

 

1.1              The provision of PPE to NHS and social care organisations impacts human rights. This includes the ‘right to life’, protected by Article 2 of the European Convention on Human Rights (ECHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR). Both Article 2 ECHR and Article 6 ICCPR impose positive obligations on states to take steps to protect the lives of those with their jurisdictions. Article 6 ICCPR requires states to undertake reasonable positive measures which do not impose on them impossible or disproportionate burdens, in response to foreseeable threats to life.[1]

 

1.2              The ECHR imposes positive obligations on states to ensure the ‘practical and effective protection’ of rights,[2] by taking ‘reasonable’ and ‘adequate’ measures,[3] where this does not impose an ‘impossible or disproportionate burden’ on the state.[4] As has already been noted by a number of leading UK human rights lawyers,[5] and the Joint Committee on Human Rights,[6] there is a strong case for Article 2 ECHR imposing a number of specific duties on states with respect of the provision of PPE.

 

1.3              In the first instance, Article 2 imposes a general or systemic duty on states to protect the right to life.[7] This duty extends to matters of public health. For example, states must have in place regulations requiring hospitals to take appropriate measures to protect their patients lives.[8] The duty also arises in respect of training and the procurement of equipment,[9] and has been applied in the UK in relation to the supply of appropriate equipment to members of the armed forces.[10] Linked to this systemic duty is an operational duty imposed by Article 2 ECHR, which requires the state to protect individuals where there is a ‘real and immediate’ threat to their life of which the state is, or ought to be, aware.[11]

 

1.4              In light of the risks posed to those working on the frontline in the NHS and social care organisations, which are both ‘real and immediate’ and of which the Government has been aware, there is a strong case for the UK being obliged to provide adequate supplies of PPE to these grounds under Article 2 ECHR.

 

1.5               The provision of PPE to NHS and social care organisations also implicates right to non-discrimination under Article 14 ECHR and Article 2 ICCPR. We note the following observation from the Joint Committee on Human Rights:

 

It is also arguable that when it became clear that black, Asian and minority ethnic communities were suffering disproportionately from the effects of Covid-19, the right to life (Article 2 ECHR) read together with the right to non-discrimination in the enjoyment of the substantive ECHR rights (Article 14 ECHR) should have required the prioritisation of the allocation of PPE to (for instance) BAME doctors and nurses. We have received evidence that in some cases the reverse has in fact been the case.[12]

 

1.6              This observation makes clear the potential discriminatory effects of the manner in which PPE is provided to NHS and social care organisations. This may arise either in respect of any disparities in the provision of PPE to different social groups, or in respect of a failure to prioritise the provision of PPE to social groups with particular vulnerabilities.

 

 

2. The Committee ought to seek evidence specifically on rights-related dimensions of provision of PPE during the pandemic

 

2.1              In light of the above, we submit that the Committee ought to seek evidence specifically on right-related dimensions of the provision of PPE during the pandemic. This entails both soliciting rights-related evidence per se, and considering statistical and other evidence submitted to the Committee through a human rights lens. There are three reasons why this is important and appropriate.

 

2.2              First, the UK is legally obliged to protect the rights of all those within its jurisdiction (e.g. Article 1, ECHR). The impact of government action on human rights protection are, thus, appropriate considerations in inquiries such as this one. We stress that questions of rights-related impacts are not limited to the Joint Committee on Human Rights or other dedicated human rights fora. Rather, they are relevant to the work of all of government and, thus, to all parliamentary entities engaged in ensuring accountability for, effectiveness of, and legitimacy of Government action, including its responses to the COVID-19 pandemic.

 

2.3              Second, as outlined in Section 1 above, the provision of PPE raises prima facie questions of human rights compliance that require effective consideration in an inquiry of this kind. These questions are significant for planning procurement and supply of PPE and other essential materials in future pandemics or analogous events.

 

2.4              Third, reviews and inquiries that fail to take rights-implications into account risk missing an important part of the analysis of the in/effectiveness of pandemic responses. We thus urge the Committee to integrate human rights analysis into its inquiry and, in particular, to consider

 

(i)                 What, if any, effects the approach to procurement and supply of PPE had on the rights of those working in the NHS and social care organisations;

(ii)               What, if any, disproportionate impacts the approach to procurement and supply of PPE had on the rights of particular cohorts of people working in the NHS and social care organisations;

(iii)            How, if at all, human rights considerations were incorporated into decisions about procurement and supply of PPE;

(iv)             What the experience of procurement of PPE to NHS and social care organisations might teach us about rights-based planning for future pandemic or similar events.

 

 

3. The potential need for an investigation as per the requirements of article 2 ECHR

 

3.1              If the Committee finds that there is a connection between the manner in which procurement contracts were handled by the Government and a systemic shortage of PPE to NHS and social care organisations, the Committee should recommend this matter be made subject to a public inquiry pursuant to Article 2 of the ECHR

 

3.2              Article 2 imposes an obligation on states to investigate those cases in which the states obligations under Article 2 may not have been fulfilled. The key purpose of an investigation under Article 2 is to secure the effective implementation of the domestic laws safeguarding the right to life, and to ensure state accountability for any deaths linked to the state failing to fulfil its duties under article 2.[13]

 

3.3              In order to fulfil the requirements of Article 2 an investigation must adhere to minimum procedural standards. For example, the investigation must be conducted by an independent body or individual with exemplary diligence and promptness, be subject to a sufficient element of public scrutiny, and gather relevant evidence.[14]

 

3.4              We note that the findings from NAO suggest there may be evidence to establish a link between Government procurement and a systemic shortage of PPE to NHS and social care organisations.  NHS provider organisations told the NAO that while they were concerned about the low stocks of PPE, they were always able to get what they needed in time.[15] However, surveys of care workers, doctors and nurses show that significant numbers of workers considered that they did not have access to the PPE they needed and were not adequately protected.[16] The NAO has also noted that employers have reported 126 deaths and 8,152 diagnosed cases of COVID-19 among health and care workers linked to occupational exposure.[17] We also note the Joint Committee on Human Right’s observation that “[c]are homes and other social care settings also reported lacking the necessary equipment”.[18] Furthermore, the NAO has reported that of the 32 billion items of PPE procured between February and July, only 2.6 billion items were delivered to front-line organisations in that period. Demand for PPE was so high in April and May that stock levels were negligible for most types of PPE.[19]

 

3.5              We note that these figures suggest a prima facie link between the manner in which the UK Government handled the procurement of PPE, systemic shortages of PPE for those working on the frontline in the NHS and social care organisations, and a significant number of deaths of health and care workers. Such a link, if supported by evidence to the Committee, should result in a public inquiry as per Article 2 ECHR.

 

3.6              We therefore urge the Committee to recommend that such an inquiry takes place if the evidence it receives supports a link between procurement of the PPE by the Government and a systemic shortage of PPE to NHS and social care organisations.

 

 

 

About Us

Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School, University of Birmingham. Email: f.delondras@bham.ac.uk

 

Daniella Lock is Research Fellow at the COVID-19 Review Observatory, Birmingham Law School, University of Birmingham. Email: D.Lock.1@bham.ac.uk

 

The COVID-19 Review Observatory is a UKRI-funded research initiative located at Birmingham Law School, University of Birmingham. It tracks, assesses, and engages with parliamentary reviews of responses to the COVID-19 pandemic with a view to ensuring effective consideration of rights protection, and to enhancing accountability and legitimacy by supporting parliamentary review. A key part of its work is participating in such reviews by, for example, submitting to committee inquiries.

 

December 20202


[1] Communication No. 1862/2009, Peiris v Sri Lanka, Views adopted on 26 Oct. 2011, para. 7.2

[2] For example, see Valiulienė v Lithuania [2013] App. no. 33234/07, para 75.

[3] See Opuz v Turkey [2009] ECHR 870, paras 136 and 153.

[4] See Osman v UK [1998] ECHR 101, para 116.

[5] For example, see Elizabeth Stubbins Bates, “Article 2 ECHR’s Positive Obligations—How Can Human Rights Law Inform the Protection of Health Care Personnel and Vulnerable Patients in the COVID-19 Pandemic? Opinio Juris, 1 April 2020 https://opiniojuris.org/2020/04/01/covid-19-symposium-article-2-echrs-positive-obligations-how-can-human-rights-law-inform-the-protection-of-health-care-personnel-and-vulnerable-patients-in-the-covid-19-pandemic/; Paul Bowden QC, “Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic” UK Human Rights Blog, 4 May 2020 https://ukhumanrightsblog.com/2020/05/04/learning-lessons-the-hard-way-article-2-duties-to-investigate-the-governments-response-to-the-covid-19-pandemic-paul-bowen-qc/.

[6] Joint Committee on Human Rights, The Government’s Response to COVID-19: Human Rights Implications, 7th Report of Session 2019-21. HC 265, paras 68 – 72.

[7] Stoyanov v Bulgaria [2012] ECHR 184, paras 50 to 61.

[8] Tarariyeva v Russia [2006] ECHR 1096, para 73.

[9] Oneryildiz v Turkey [2004] ECHR 657, para 89.

[10] Smith and ors v Ministry of Defence (No 2) [2013] UKSC 41.

[11] Osman v UK [1998] ECHR 101, para 115.

[12] Joint Committee on Human Rights, The Government’s Response to COVID-19: Human Rights Implications, 7th Report of Session 2019-21. HC 265, para 69.

[13] Al-Skeini and Others v. the United Kingdom [2011] ECHR 1093, para 163.

[14] Ramsahai and Others v. the Netherlands [2007] ECHR 393, paras 323 to 356.

[15] National Audit Office, The Supply of Personal Protective Equipment (PPE) during the COVID-19 Pandemic (2020) HC 961, paras 3.7, 3.8.

[16] Ibid, paras 3.17 – 3.19.

[17] Ibid, paras 3.17, 3.22 – 3.23.

[18] Joint Committee on Human Rights, The Government’s Response to COVID-19: Human Rights Implications, 7th Report of Session 2019-21. HC 265, para 70.

[19] National Audit Office, The Supply of Personal Protective Equipment (PPE) during the COVID-19 Pandemic (2020) HC 961, paras 2.10, 2.23 and 2.25 – 2.26.