As the COVID-19 pandemic continues and infection rates are again on the rise in England there has been much debate about what the UK Government should be doing and how it should prioritise competing interests such as the economy and the nation’s health. In this piece we take a different starting point for this debate, examining the UK Government’s obligation to respect, protect and fulfil the human rights of everyone in the UK, and in particular what the right to health means in the current context. In drilling down into the right to health we’ll show that’s it’s about much more than just providing healthcare, the UK Government has a duty to prevent, treat and control epidemics and disease and to ensure other rights (such as the right to social security) which help to realise the right to health are also being fulfilled.
With rising COVID-19 cases in England, the NHS Confederation has called on the UK Government to implement ‘Plan B’ (which could include measures such as vaccine passports, mandatory mask-wearing and asking people to work from home where possible).
So far UK Government has resisted these calls, with Business Secretary Kwasi Kwarteng saying it was not time for Plan B yet and that he did not want further lockdowns or to jeopardise the “hard-won gains” of reopening the economy.
But how does this position sit with the UK’s international human rights obligations? While the Government’s handling of the pandemic engages a range of rights, the most obvious is the right to health. However, in looking at this right in more detail, it is clear that the realisation of the right entails a much broader duty on the UK Government than might at first be assumed.
The right to health is recognised in a number of treaties which the UK has signed up to and agreed to be bound by at the United Nations level including the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. In addition, the right is also recognised in the European Social Charter (an instrument of the Council of Europe and so unaffected by the UK’s withdrawal from the EU).
However the treaty in which we find the most detail about what the right to health entails is the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12(1) lays out the basic premise of the right to health, making it clear that:
- it applies to everyone
- the duty to realise it is on the state party (in our case the UK Government)
- that it’s about attaining the highest standard possible
- that it applies to both mental and physical health
Another relevant point for our current situation is that Article 12(2) places a specific duty on the UK Government in relation to epidemics and other diseases. This provision highlights that the duty the UK Government has is not just about the provision of healthcare, it’s also about other measures to protect health, including the prevention, treatment and control of diseases (such as COVID-19). The UK Government must bear in mind this aspect of the right to health when making decisions about when to implement ‘Plan B’ and whether, as the NHS Confederation have called for, to implement ‘Plan B+’.
However, the right to health is more expansive even than this. UN human rights treaties, including ICESCR, have ‘General Comments’ which are comprehensive interpretations of the treaties produced by a panel of independent experts. For ICESCR General Comment No. 14 (2000) explains what the right to health in Article 12 means in more depth. It clarifies that while there is no ‘right to be healthy’ as such (at paragraph 8), the realisation of the right to health involves realising other rights as well,
“The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health.”
What’s clear from this is that human rights, including health, are interdependent and interrelated. Importantly, the list above open-ended and the proper realisation of the right to health could necessitate the realisation of a number of other rights.
In the context of the ongoing pandemic, something that intricately linked to the realisation of the right to health is the recent decision by the UK Government to cut Universal Credit by £20 a week. While the recent budget announcement of an alteration to the taper rate will help those in work and receiving Universal Credit, those who are out of work or unable to work will not benefit from the changes. This being done in the context of rising food, housing and fuel costs. The rise in cost of each of these factors has a direct impact on the realisation of the right to health for those already struggling to afford to stay warm, well fed and to keep a roof over their head.
We’ve already explored why the cut to Universal Credit represents a breach of the UK’s human rights obligations, particularly in relation to the concept of progressive realisation, but this fuller understanding of the right to health illustrates that decisions made by government in relation to other rights, such as social security and adequate standard of living, can have a direct impact on the realisation of the right to health.
Thus, the conversation about whether or not the UK Government must implement Plan B (or indeed Plan B plus) isn’t the only thing they should be considering in relation to realising the right to health. All those other rights which support people’s health such as equality, adequate standard of living (including food, housing and clothing), even issues like the right to culture in terms of mental health, must also be part of the UK Government’s considerations.