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MULTI AWARD WINNING SCOTTISH LAWYERS

The War on Coronavirus – Response to the new laws by Aamer Anwar

On the 25th March the most Draconian piece of legislation will be passed on the basis we are now at war with a virus.

There will be little or no opposition to the bill, wiping out in one stroke civil liberties which we have taken for granted for over half a century. The laws will remain on the statute books for two years, with a possibility of a review at 6 months.

As the scale and severity of the COVID-19 pandemic rises to the level of a global public health threat it can justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement.

However at a time such as this all legislation must be underpinned with a respect for human dignity and rights and that can only happen if there is transparency and resources devoted to the crisis and our media, politicians and lawyers can hold the Government to account.

These laws will impact on all our lives and it is unacceptable if ‘loyal’ opposition parties fail to provide any real parliamentary scrutiny. These laws will not happen in isolation, there has been little practical concern for the poor, the vulnerable, prisoners, immigration detainees, those on zero hour contracts, the self-employed, those renting or those being forced to come to work.

We have seen no measures to mitigate the outcome of enforced school enclosures which will drive families further into poverty, but also increase chances of spreading the virus as workers now considered Key workers are forced to leave children with families. Whilst schools will take children during the day for nurses, doctors and police officers, what happens when they are working through the night?

This Bill presents the option of cutting services where they are already desperately needed only to transfer them to fighting a pandemic which may not have an end for some time. At the same time we are expecting a Conservative Government to protect our NHS when they have been decimating it for years.

We know in the days ahead there will be huge turmoil, riots have started to take place in prions where both the incarcerated and prison officers are terrified of being in a giant Petri dish or rather a burning house whose doors and windows are bolted shut.

We may not have not seen civil unrest on the streets yet, but as the death toll rises and the UK Government fails to offer hope, we will need to limit the harm that will flow from the draconian laws.

The UK government clams it wants to protect and support people but overnight we will be turned into a ‘police state’, albeit to save lives but that does not remove the need for scrutiny, transparency and accountability. The UK government has been exposed as incompetent, callous and uncaring, yet we are expected to provide unconditional support as they go to war against a ‘silent killer.’

On March 16, 2020, a group of UN human rights experts said that

“Emergency declarations based on the COVID-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health… and should not be used simply to quash dissent.”

Why would anyone believe a party which wanted to abolish the Human Rights Act to be trusted with ‘policing’ the greatest crisis to hit the UK since the second World War. The Tories cannot claim to care about saving lives when they have cut hospital beds by 17,000 from the NHS since 2010.

The illegal war in Iraq, saw a ‘sexed up dossier’ and over a million losing their lives- we were told to trust without question, they deceived us then and once more we face a similar danger, only this time it is from one of the most right wing Governments to have occupied Whitehall.

This lengthy bill numbering a total of 401 pages (including the explanatory notes) has been hurriedly drafted. The concern is that the darker elements of the Conservative Party and we know who they are, will see this as an opportunity to carry out an all-out attack on civil liberties.

The Government claimed in the Bill “the UK government’s coronavirus action plan, published on 3 March, set out measures to respond to the COVID-19 outbreak that are reasonable, proportionate and based on the latest scientific evidence.”

All respected medical opinion has shown their response to be woefully inadequate. The Government claims changes to “legislation might be necessary in order to give public bodies across the UK the tools and powers they need to carry out an effective response to this emergency.”

The intro blurb says all the right things-

“The development of an effective response to the epidemic requires a number of actions, including easing the burden on frontline NHS and adult social care staff, some help staff by enabling them to work without financial penalty, and some support people and communities in taking care of themselves, their families and loved ones, and their wider community.”

1. “The legislation will be time-limited – for 2 years – and not all of these measures will come into force immediately. The bill allows the 4 UK governments to switch on these new powers when they are needed, and, crucially, to switch them off again once they are no longer necessary, based on the advice of Chief Medical Officers of the 4 nations.”

Have we forgotten the controversial advice of England’s Chief Medical Officer Chris Whitty, the UK’s chief medical officer for England who said that “holding off on recommending the sort of social distancing other countries have encouraged was a strategic decision,” arguing that imposing it would cause people to become “exhausted and stop participating in it”.

Under this legislation it is Government advisers who will have the final say. Have we forgotten how quickly the ‘science changed’ after doctors and scientists attacked the UK Government’s Chief Science Adviser, Sir Patrick Vallance who said on BBC Radio that one of “the key things we need to do” is to “build up some kind of herd immunity so more people are immune to this disease and we reduce the transmission.”

I need not repeat here the alleged commentary by Dominic Cummings that appeared in the Sunday Times.

2. The Government goes on to say

“The measures in the coronavirus bill are temporary, proportionate to the threat we face, will only be used when strictly necessary and be in place for as long as required to respond to the situation.”

Why then does the laws require to remain 2 years on the statute book?

3. “We have worked closely with the devolved administrations to develop an effective package of measures to support frontline staff and individuals involved in this vital national response.”

There has not been a united response to this crisis, on so many occasions the UK Government has been briefing the public via chosen tabloids, pay walls and multiple leaks, with the devolved nations left to explain ‘Whitehall sources’

4. “Containing and slowing the virus – by reducing unnecessary social contacts, for example through powers over events and gatherings, and strengthening the quarantine powers of police and immigration officers”

This Bill will give police and immigration officials the power to detain without any evidence if they suspect we are infected. How exactly will the Immigration Service tagged with the label ‘racist’ along with police officers ensure that their actions do not discriminate on race, religion, sexuality, gender or disability. Where is the monitoring? How will they suspect someone is infected and what if the individual is at the shops, has no ID but happens to be black with a foreign accent, none of this has been thought through.

Windrush is what comes to mind- Home Secretary Priti Patel this week had to apologise for the actions of the Home Office, following the convenient publication of an independent inquiry in the midst of the pandemic panic. The Home Office was accused of showing ‘institutional ignorance and thoughtlessness’ towards the issue of race, they were found to have wrongfully detained or deported people and those affected were let down by “systemic operational failings”.

The publication of the report has prompted calls for an independent review into the Home Office over its racism. In ‘Windrush’ successive governments tried to demonstrate they were being tough on immigration by rushing in laws, expanding the “hostile environment” and showing a complete disregard for the Windrush generation.

Yet despite a brutal indictment by the Windrush Inquiry of the Home Office’s total disregard regard for the rule of law, they are about to be given powers no different to those of a Police State. How ironic that whilst the opposition criticises the barbaric racism of the Home Office, it is trusting them completely in this pandemic not to discriminate, harass, stop and search or detain and deport because of racism.

We have seen no mention in this Bill of what steps are being taken at Immigration Detention Centres or Prisons to protect staff and detainees/prisoner from what can be described as a ‘hotbed for the Coronavirus’. Riots have been reported in Scottish prisons already, family visits are banned, prison staff are becoming ill, all the while prisoners are self-isolating or infected with COVID-19- yet there is silence on any provisions to test and release those from short-term sentences or no longer considered a risk to the public.

If within the next 24 hours both the Scottish Government and UK Government fail to act, then they will be guilty of ‘state sanctioned murder’. It’s a race against time in our communities but that also applies to our prisons which are now an epicentre for this silent killer.

5. Managing the deceased with respect and dignity – by enabling the death management system to deal with increased demand for its services.

What exactly does that mean? Increased demand for burials/cremations will actually lead to reduced respect and dignity without any checks and balances.

6. “provide indemnity for clinical negligence liabilities arising from NHS activities carried out for the purposes of dealing with, or because of, the coronavirus outbreak, where there is no existing indemnity arrangement in place. This will ensure that those providing healthcare service activity across the UK are legally protected for the work they are required to undertake as part of the COVID-19 response.”

This clause needs more clarity, and cannot mean hospitals have ‘carte blanche’ indemnity, one only needs to look to the catalogue of scandals that took place at the Queen Elizabeth University Hospital in Glasgow to understand that the Government can not just hand over ‘blanket indemnity’, that can only be a recipe for disaster.

7. “enable existing mental health legislation powers to detain and treat patients who need urgent treatment for a mental health disorder and are a risk to themselves or others, to be implemented using just one doctor’s opinion (rather than the current 2). This will ensure that those who were a risk to themselves or others would still get the treatment they need, when fewer doctors are available to undertake this function. …….temporarily allow extension or removal of time limits in mental health legislation to allow for greater flexibility where services are less able to respond.”

Mental Health provision is desperately needed throughout the UK, the fact that an individual can now be detained indefintely or released into the community on the basis of one medical opinion is a recipe for disaster, the wrong diagnosis and potential abuse of power.

8. “Allow NHS providers to delay undertaking the assessment process for NHS continuing healthcare for individuals being discharged from hospital until after the emergency period has ended”

Does this mean that hospitals can dispense with duty of care to patients that they are desperate to discharge?

9. “make changes to the Care Act 2014 in England and the Social Services and Well-being (Wales) Act 2014 to enable local authorities to prioritise the services they offer in order to ensure the most urgent and serious care needs are met, even if this means not meeting everyone’s assessed needs in full or delaying some assessments. ……………………temporarily relax local authorities’ duties in relation to their duties to conduct a needs assessment and prepare an adult carer support plan/young care statement under the Social Work (Scotland) Act 1968, the Children (Scotland) Act 1995, the Social Care (Self-directed Support) (Scotland) Act 2013 and the Carers (Scotland) Act 2016 to enable them to prioritise people with the greatest needs”

Again this will allow the dangerous removal of services already in crisis that protect and support some of the most vulnerable in our society.

10. “enable the Home Secretary to request that port and airport operators temporarily close and suspend operations if Border Force staff shortages result in a real and significant threat to the UK’s border security. This is to ensure the UK can maintain adequate border security throughout the pandemic and protect the public from the threat of criminality or importation of prohibited items that could result from an inadequately controlled border.”

What this does not mention is whether we will meet our international obligations on welcoming those seeking asylum, or will simply turn away boats of young children and their families to die on the open seas?

11. “Ensure that the Treasury can transact its business at all times, by making it possible for a single commissioner or a single Treasury minister to sign instruments and act on behalf of the commissioners, during a COVID-19 emergency period….This change will ensure that the Treasury can transact its business at all times during a COVID-19 emergency period, should commissioners be unable to fulfil their duty”

Can we trust a Government mired in corruption and nepotism to use such financial powers legitimately and impartially, or will it be another excuse for the rich to profiteer at our expense?

12. “allow temporary judicial commissioners (JCs) to be appointed at the request of the Investigatory Powers Commissioner, in the event that there are insufficient JCs available to operate the system under the Investigatory Powers Act 2016. This is the one of the critical pieces of domestic legislation for national security. ….These warrants provide the agencies with the capability they need to protect national security and investigate and prevent serious crime. “

Will this section be used as a cover to curtail freedom of expression and access to critical information? We are ‘sleepwalking’ into a Chinese scenario where the state withheld critical information from the public on coronavirus, whilst detaining people for reporting the virus via social media.
For years successive Governments have tried to use the ‘War on Terror’ to bring in greater surveillance powers but have been stopped from doing so in the name of democracy.

There is no detail or any real judicial oversight of what the police and state will be able do to access our personal information and data.

In essence the UK Government is using this law to bring in surveillance powers through the back door, only now the excuse is to fight war on a virus.

There is no explanation as to why in this new war, they need to hack our computers and phones or intercept our digital communication. To allow them permission to do so with no scrutiny at all means they can access all our personal and sensitive data.

We should never forget the name of a Doctor Wenlianmg at a hospital in Wuhan where he was treating patients for Corona virus, he was detained and died from the virus in February.

In Thailand we have seen the Government take action against those who expose corruption and stockpiling of food, medicines and masks. At the same time medics who tried to speak up about severe shortages at hospitals faced disciplinary action, dismissal or imprisonment.

“In mid-January, authorities in China quarantined close to 60 million people in two days in an effort to limit transmission from the city of Wuhan in Hubei province, where the virus was first reported, even though by the time the quarantine started, 5 million of Wuhan’s 11 million residents had left the city. Many experienced difficulties in accessing ‘medical care or life necessities.

Chilling stories have emerged of deaths and illnesses. A boy with cerebral palsy died because no one took care of him after his father was taken to be quarantined. A woman with leukemia died after being turned away by several hospitals because of concerns about cross-infection. A man with kidney disease jumped to his death from his apartment balcony after he couldn’t get access to health facilities for dialysis. Authorities have also reportedly used various intrusive containment measures: barricading shut the doors of suspected infected families with metal poles, arresting people or refusing to wear masks, and flying drones with loudspeakers to scold people who went outside without masks. The authorities did little to combat discrimination against people from Wuhan or Hubei province who traveled elsewhere in China.”

Many other countries have followed suit in their attempt to halt the march of the virus, whilst the stories in China may at this point seem implausible for the UK, why then arm our authorities with the power to take whatever action they deem necessary.

13. “enable the government to restrict or prohibit events and gatherings during the pandemic in any place, vehicle, train, vessel or aircraft, any movable structure and any offshore installation and, where necessary, to close premises”

“The bill will enable the police and immigration officers to detain a person, for a limited period, who is, or may be, infectious and to take them to a suitable place to enable screening and assessment.”

We are now limited to gatherings of two, and such draconian laws are necessary if we are to contain massive number of deaths, but once again there is no clarity of whether this law could be used at end of the pandemic and of course whether it is used specifically to fight the virus. In six months time could this law be used to stop doctors and nurses demonstrating or holding a press conference to expose Government failures leading to deaths?

14. “postpone the local, mayoral and Police and Crime Commissioner elections that were due to take place in England in May this year until May 2021. Provision will also be made to postpone other electoral events over the course of the year (such as by-elections)”

How convenient, what if opinion polls in a year’s time shows the Government has totally lost the confidence of the people, do we really believe that Boris Johnson will put democracy before his own self-interest?

Legislate in haste, repent at leisure- 24th March 2020

In the days and weeks ahead we will be publishing details of new police and local authority powers on the Website- Our office will remain open virtually and we are available to consult via telephone and Skype, Zoom and Facetime also. Please stay at home and remain safe- We wish you all the best.

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