Adrian McErlean

Dear Northern Ireland Human Rights Commission,

Since we are forced to wear masks for medical reasons and consent is still required for any medical procedure.
So it is not permissible to force an individual to wear a mask?

Yours faithfully,

Adrian McErlean

NIHRC Info, Northern Ireland Human Rights Commission

Thank you for your email. A member of our team will respond to your
request as soon as possible. If you would like to speak to a member of
staff urgently please contact us +44 (0) 28 9024 3987. 

Htaik Win, Northern Ireland Human Rights Commission

1 Attachment

Dear Adrian

 

Thank you for your email raising your concerns around the wearing of face
masks during the COVID-19 pandemic.

 

Domestically, the Human Rights Act 1998 (HRA) gives effect to the European
Convention on Human rights (ECHR).  It ensures that all legislation passed
by Parliament is compatible with the rights set out in the Convention and
that courts will also interpret laws in a way that is compatible with the
Convention rights. This provides a way for individuals affected by acts of
public authorities to challenge their actions or failure to take action in
domestic courts on the basis that their Convention rights have been
breached.  Public authorities are organisations that carry out a public
function and therefore the act does not generally apply to private bodies.
The Northern Ireland Act 1998 also provides that Ministers of the NI
Executive and the Executive departments should ensure that all legislation
and actions are compatible with the ECHR.

 

The European Court of Human Rights (ECtHR) has confirmed that Article 8
ECHR, the right to private and family life, also protects a person’s
physical and moral integrity.  On this basis, your right to refuse medical
treatment does fall within the protection of Article 8. A medical
intervention without your consent may give rise to an interference with
your private life and in particular your right to physical integrity.
However, the wearing of a face mask has not been categorised as a medical
procedure or treatment so it is not settled that this would indeed engage
an Article 8 right.

 

Further, it is important to note that Article 8 is a qualified right. This
means that it can be limited in some circumstances. Any limitation is
permissible if it is lawful, necessary and proportionate in achieving a
legitimate aim.

One of these legitimate aims is public safety, protection of health, or
the protection of the rights and freedoms of others. This may cover
situations such as the current pandemic. Whether there is a breach of
these rights will be a matter for the Courts to determine. The ECtHR has
recognised that Article 8 could be restricted by public health
considerations and the necessity to curb the spread of infectious disease
([1]Solomakhin v. Ukraine (2003)).

 

The Commission has engaged in correspondence on a human rights basis for
having to wear face masks and does not consider that human rights law
offers an absolute answer to either position. It is effectively a matter
for the NI Executive to determine. The current rules on face coverings can
be found [2]here.

 

All legislation and policy in Northern Ireland must be compliant with the
ECHR under the provisions of the HRA 1998.  The Commission remains
committed to monitoring all government responses to the pandemic as well
as scrutinising Coronavirus related legislation for compatibility with
human rights standards.

 

If you have any further queries, please do not hesitate to contact me.

 

 

 

Many thanks and regards,

 

 

Ms Htaik Win

Solicitor (Legal and Research Officer)

 

Telephone: +44 (0)28 9024 3987 | Email: [email address]

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