Adrian McErlean

Dear Northern Ireland Human Rights Commission,

Is the right to freedom of movement still a basic human right? As for the last year we've lost that human right

If human rights can be removed can they still be a called a human right?

Can the government discriminate against people that refuse a vaccine product? Eg stop people from entering places

If they can how can the government remove human rights as they feel fit

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. 

NIHRC Info, Northern Ireland Human Rights Commission

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Dear Adrian,

 

We have considered your email and can confirm we are not treating it as
Freedom of Information request as you have asked for an opinion which the
Commission does not hold on record.

 

A member of the team will be in touch to provide you with some guidance on
the question you have raised.

 

Kind regards

 

 

Claire Martin

Director (Communications, Information and Education, Public and Political
Affairs

 

 

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References

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Htaik Win, Northern Ireland Human Rights Commission

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Dear Adrian

 

Thank you for your email raising your concerns around the Government’s
response to 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.

 

Your query has raised the following Convention rights:

 

Article 5

The issue of free movement falls under Article 5 of ECHR which enshrines a
fundamental human right to ensure that no one is deprived of their right
to liberty arbitrarily by the State. In order to determine whether someone
has been “deprived of his liberty” within the meaning of Article 5, the
court will take account of a range of criteria such as the type, duration,
effects and manner of implementation of the measure in question. The
difference between deprivation of and restriction upon liberty is one of
degree or intensity, and not of nature or substance (Medvedyev and Others
v. France (2010)). Relevant objective factors to be considered include
the possibility to leave the restricted area, the degree of supervision
and control over the person’s movements, the extent of isolation and the
availability of social contacts (H.L. v. the United Kingdom (2004)).

 

If the facts demonstrate a person has been deprived of their liberty, then
it is necessary to see if this deprivation is allowed under one of the
grounds listed in Article 5.  People can be detained lawfully for the
prevention of spreading an infection disease if it is dangerous to public
health or safety and if the detention is a last resort in preventing the
spread of the disease in safeguarding the public. Decisions about the
imposition or lifting of restrictions is a matter for the government. This
careful balancing exercise between public safety and the rights of
individuals requires regular review to ensure that any restrictions
continue to be necessary and proportionate.

 

Article 11

Article 11 protects your right to protest by holding meetings and
demonstrations with other people. These are qualified rights, which means
that they can be limited in certain circumstances without the existence of
these rights being removed. Any limitation must be necessary and
proportionate in pursuit of a legitimate aim such as public health. This
is relevant at present with COVID-19 and is reflected in the powers set
out in the UK-wide Coronavirus Act 2020 and the Health Protection
(Coronavirus) Regulations in Northern Ireland.

These powers enable restrictions to be imposed on physical mass gatherings
as long as the restrictions are necessary for tackling COVID-19 and a
proportionate way of achieving that aim. In terms of retaining the right
to protest, the government continues to permit other forms of protest that
fit within the regulations as currently formulated, including many online
options that remain available and are not restricted.

 

 

Article 8 and 14 ECHR

Informed consent is still required for any medical procedure which
includes vaccinations and therefore it is not permissible to force an
individual have the vaccination if they have capacity to give informed
consent.  This is in line with the right to respect for private and family
life protected under Article 8 ECHR which includes a person physical and
moral integrity. However, 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)).

 

Article 14 ECHR allows the enjoyment of the Convention rights without
discrimination and therefore only applies if the act complained of is
within the scope of another Convention right.  If Article 8 is engaged
then it would not be permissible to discriminate a person on that basis. 
Though it is important to note that discrimination in the Article 14
context is not unlawful if it can be justified by the public authority.

 

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]

Sign up to our monthly e-newsletter [2]here.

 

[3]Website   |  
[4]Twitter   |   [5]Facebook   |   [6]YouTube   |   [7]Instagram 

 

Northern Ireland Human Rights Commission, 4th Floor, Alfred House, 19-21
Alfred Street, Belfast, BT2 8ED

Telephone: +44 (0)28 9024 3987   |   Email: [8][Northern Ireland Human Rights Commission request email]   |
  Textphone: +44 (0)28 9024 9066   |   SMS Text: +44 (0)77 8620 2075

 

Our privacy notice in line with General Data Protection Regulation (GDPR)
can be found [9]here.

 

This email is confidential and privileged. If you are not the intended
recipient, please accept our apologies. Please do not disclose, copy or
distribute information in the email nor take any action in reliance of its
contents - to do so is strictly prohibited and may be unlawful. Please
inform us that this message has gone astray by return before deleting it.
Thank you for your co-operation.

 

 

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