New legislation to combat COVID-19 is so vast that a new official based on the Independent Reviewer of Terrorism Legislation should be created to monitor its efficacy and impact on civil rights, according to a new report.
The report argues that in language, scope, and purpose, the state response to the public safety emergency triggered by COVID-19 is comparable to measures it has adopted in the past to respond to the war on terror. Accordingly, it claims that lessons can be learned from these efforts.
Identifying cross-overs between terrorism and pandemic legislation, the report raises questions on:
- Emergency legislation and the potential for unforeseen consequences in legislation enacted with a minimum level of scrutiny.
- Data mining or the use of bulk collection and analysis of private data in the interests of public safety.
- Privacy and whether the state’s need to collect data — including through ‘contact tracing’ — could mount a threat to privacy rights.
- Accuracy — whether making decisions about people based on data, is fair, accurate, and free of discrimination
- Courts and detention, including whether virtual justice upholds the rights of parties to proceedings.
The report concludes that, given the similarities in responses, if legislation on COVID-19 is to stay in place for more than two years, the government should appoint an independent expert to review this legislation in the same way as currently takes place for terrorism legislation. In addition, it recommends enhanced air transit practices, publishing pandemic exercise results, and funding pandemics and terrorisms from a common national security pool.
The call to adopt an Independent Reviewer of Pandemic Legislation are backed by the UK’s former Independent Reviewer of Terrorism Legislation, Lord Carlile, who agreed that “a new Independent Reviewer of Pandemic Legislation should review and advise on the legislation and its consequences for the public”.
Lord Carlile CBE QC, the UK’s Independent Reviewer of Terrorism Legislation from 2001 to 2011, said:
“The UK Government and Parliament must address the balance between civil liberties and securitisation for the sake of public safety.
There are lessons to be learned from experience in the counter-terrorism space. If emergency legislation on COVID-19 remains in force for a prolonged period, or any significant part of the emergency legislation is made permanent, I agree with the view that a new Independent Reviewer of Pandemic Legislation should review and advise on the legislation and its consequences for the public, as does the Independent Reviewer of Terrorism Legislation.
By doing this, we can ensure that areas such as aviation security, contact-tracing apps, and policing in relation to infection are accurate, transparent, and proportionate in the context of human rights.”
“Much like responses to terrorism, the response to COVID-19 has involved navigating the balance between civil liberties and national security.
This report highlights several areas where these spaces overlap, including emergency legislation, policing and national security determinations, detention and trials, powers related to infected persons, and data collection and surveillance.
What we need now is greater transparency, oversight, and accountability. The results of counter-terrorism exercises have been made public by reports released by the Independent Reviewer of Terrorism Legislation. Similar results should be made available by a new Independent Reviewer of Pandemic Legislation.
As lockdown constraints are eased, we must ensure that an internal watchdog or independent position should be created to review the effectiveness of the government’s response to COVID-19, and its preparedness for any public health emergency in the future.”