The Coronavirus Act presents a prime example that it is not enough for the law to disregard questions of race and ethnicity emergency legislation. While provisions such as the “Powers to direct or remove persons to a place suitable for screening and assessment” (schedule 21, Part 1, section 6(1))[1] are non-discriminatory in themselves, they have demonstrably been used to disproportionately target people from BAME backgrounds. Analysis presented by Liberty Investigates in collaboration with the Guardian has found that BAME people are 54% more likely to be fined than white people, and data from the Metropolitan Police shows that this number is almost the same for arrests.[2] By the Metropolitan Police’s own admission “higher proportions of those in black and minority ethnic groups were issued with Fixed Penalty Notices (FPNs) or arrested across London as a whole”. Multiple reasons have been suggested for this inequality, with the Metropolitan police claiming that the reasons for this are “complex and represent a range of factors”. It has been suggested that this is due to the “continued focus on crime and violence” in areas such as London, leading police to be more densely stationed in areas which have a higher number of BAME people. As a result, BAME individuals are more likely to be stopped by the police, and by placing a higher concentration of officers in these areas, police are creating a system where BAME individuals are policed higher than other racial groups for the same breaches of lockdown rule. This is not only creating an issue in terms of inequality, but it is also serving as an adverse effect on the fight against the pandemic.

 

The enforcement of the Coronavirus Act has contributed to deteriorating levels of trust between police and civilians in the UK, particularly in BAME communities. With public figures, such as Dominic Cummings, being given nothing more than a slap on the wrist for their own breaches of lockdown rules, the disproportionate policing of lockdown rules among BAME communities becomes even more disingenuous. The lack of a fine for Cummings creates the perception that rules seemingly don’t apply to the privileged. The YouGov poll found that one in five people in the UK started breaking lockdown rules more often following Cummings’ trip to Barnard Castle. It becomes clear that rules should not only be put in place, but they must also be implemented equally; an uneven and unjust distribution of punishments erodes people’s trust and subsequently causes more violations of said rules.

 

These issues of racial inequality and deteriorating trust in the police are not specifically Coronavirus issues; the underrepresentation of BAME individuals in the justice system and issues of institutional racism in the UK police force have been a pressing concern long before the pandemic. The Coronavirus Act has helped to exacerbate tensions and inequalities that not only pre-existed the virus, but were getting worse year by year. With black people being ten times as likely to be stopped and searched by police officers before the pandemic, it is little wonder that granting the police extra authority has magnified these inequalities. Yet if the government were to legislate in order to control a pandemic, it is not only more fair but more effective if it was done in a manner that treated everyone equally. By granting the police such powers, without ensuring that they will be executed in an even distribution, the fight seems like an uphill battle, alienating individuals and creating resistance towards law enforcement.
 

What further complicates matters is that BAME communities have not only been disproportionately hit by Coronavirus regulations but by Coronavirus itself. In particular, black ethnic groups represent the highest number of Coronavirus cases as a percentage of their population, with black males being almost three times as likely to receive a positive diagnosis and twice as likely to die from the disease as their white counterparts.

 

 Additionally, the Coronavirus Act itself can be seen to exacerbate UK health inequality. The 2014 Adult Psychiatric Morbidity survey found that psychotic disorder diagnoses are far more prevalent in Black men (3.2%) and Asian men (1.3%) than among white men (0.3%).[3] With this in mind, the act’s temporary amendments to mental health legislation cannot be overlooked if racial inequality was to be challenged. These amendments increased the time limits for an individual’s detention whilst also removing the requirement for two separate opinions in order to detain a person. The need to reduce pressure on healthcare workers is completely understandable, yet when the criteria for detaining people with mental illnesses are reduced, not only does the risk of unfairly and unjustly detaining them increase, but it is also done so in a manner that disproportionately affects BAME backgrounds. In his report ‘Breaking the Circles of Fear’, Dr Frank Keating found that many Black communities have a strongly grounded mistrust of mental health services, seeing them as both inhumane and unhelpful.[4] He explores how this is not an unfounded position, as there is a self-sustaining cycle which perpetuates this distrust.

 

The historic unequal treatment of Black individuals has created an attitude of resentment towards mental health institutions and in doing so often leads to individuals being reluctant to seek treatment and subsequently are only able to experience this treatment when forcibly detained. Through this, one can see that certain elements of the Coronavirus Act are counterintuitive; the easing of the requirements for detention on the grounds of mental health was intended to reduce the stress on the NHS, yet in doing this the already low levels of trust between these mental health services and BAME communities may further deteriorate. The stigma that these services are dangerous will only be perpetuated by the removal of certain requirements for detention and the resistance towards proactive mental health treatment will result in an increase in mental health issues that are both more detrimental and more difficult to treat. While the NHS must have some of its workload relieved to deal with the pandemic, attempting to do this so flippantly in the mental health services will likely only increase the numbers of those detained and those numbers will be disproportionally people from a BAME background. In order to legislate justly it is therefore necessary to take into account this relationship between BAME individuals and mental health services in the UK. This is something that the Coronavirus Act fails to do as it strips away certain protections in the name of convenience. Especially and in light of the growing concerns over people’s mental health and wellbeing in the pandemic, focus should be placed on challenging the stigma surrounding mental health services, particularly in BAME communities. The best way to do this is by focusing on making these services preventative rather than responsive. Only in that way would legislation such as the Coronavirus Act enjoy a longevity that prevents the accumulation of negative criticism and subpar holistic protection.

 

The question of how we reform these laws is a difficult one, yet it is clear that whatever the solution is it must be one that incorporates both an immediate method of dealing with the pandemic, whilst also giving appropriate consideration to the dangers of exacerbating existing issues. Emergency legislation such as the Coronavirus Act is not enforced within a vacuum but instead acts within the context of contemporary injustices and inequalities. Therefore, it is important that when creating these laws, they must be done with diligence paid towards the potential ramifications it could have on the most marginalised in society. In particular, amendments to the mental health legislation show that prioritising convenience can often disregard the inadvertent effect that legislation can have on marginalised groups. Especially in light of the increasing rates of mental health issues and depression in the pandemic, the law must encourage proactive engagement with these services and challenge the stigma surrounding them. Furthermore, the increased infection rates among BAME communities is not a cause for targeting these communities but instead adopting an approach that seeks to understand and mitigate the injustices that have led to these conditions. If it is the case that the discrepancies in Coronavirus deaths is largely down to demographic, geographical and socioeconomic factors, then the best method of dealing with them is by responding to untouched issues before the strike of another pandemic. Coronavirus and the Coronavirus Act have taken these discrimination issues and made them far larger and more noticeable, the only way of prevention being that of minimalising and eliminating such issues before they can be magnified by external factors. One potential way of mitigating these issues is the adoption of the changes proposed in the Marmot Review. When asked to propose the most effective strategies for reducing the inequalities in the UK healthcare system, Sir Michael Marmot suggested that this could only be achieved by completing six objectives:[5]

 

• Giving every child a good start in life

• Enabling all people to maximise their capabilities and have control of their lives

• Creating fair employment and good work for all

• Ensuring healthy standards of living for all

• Creating and developing healthy and sustainable places and communities

• Strengthening the role and impact of ill health prevention

 

Moving forward, this seems to be an admirable and desirable goal. The Coronavirus Act’s amendments to the Mental Health Act and increase in police powers are harming marginalised communities, but this harm can be traced back to these objectives and how they have not been fulfilled.

 

[1] Coronavirus Act 2020

[2] (BAME People Disproportionately Targeted by Coronavirus Fines | Liberty Investigates, 2021)

[3] Sally McManus, the Adult Psychiatric Morbidity Survey 2014

[4] Frank Keating, Breaking the Circles of Fear (London: Sainsbury Centre for Mental Health)

[5] Michael Marmot, ‘Fair society, healthy lives : the Marmot Review : strategic review of health inequalities in England post-2010’, p.9

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To conclude, for a situation such as the Coronavirus it is not enough to simply rely on long-term strategies; while it is clear that not enough is being done to tackle these racial inequalities in the UK, the pandemic also necessitated a short-term solution to deal with the immediate illnesses and deaths. The failures of the Coronavirus Act are therefore understandable to an extent, and from it one can learn that emergency and short-term legislature must respond not only to the immediate issue but the potential issues of discrimination that may be aggravated by such implementation.

 

With this in mind, the Coronavirus Act should be reformed; first by ensuring that the quarantine rules are enforced equally in all areas rather than simply relying on the current police distribution to make these arrests. The enforcement of Coronavirus restrictions is at its most effective when people feel they are treated evenly and fairly. As a result, high-profile people bending the rules while certain communities are extremely overrepresented in arrests and fines undermines faith in the police and thus leads to a backlash against the laws. In this regard, it is not only important to challenge discrimination for its own sake, but also for the practical outcome of allowing discrimination to occur. Additionally, the Coronavirus Act should not only ignore issues of discrimination in healthcare but instead engage with them head on. Whilst long-term strategies are to be preferred, this should not imply that short-term policy can disregard possible effects on certain individuals. As such, to effectively combat both discrimination and the pandemic, the Coronavirus Act must be amended in order to increase preventative measures to stop an overburden on mental health services. These preventative measures must focus on engaging with communities who hold negative preconceived views of these services, challenging these damaging stigmas. It is through the acknowledgement of structural inequality and discrimination and subsequent mitigatory measures that short-term legislation such as the Coronavirus Act should not only be fair but also effective

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[1] Coronavirus Act 2020

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[2] Liberty Investigates. 2021. BAME People Disproportionately Targeted By Coronavirus Fines | Liberty Investigates. [online] Available at: <https://libertyinvestigates.org.uk/articles/bame-people-disproportionately-targeted-by-coronavirus-fines/> [Accessed 28 March 2021].

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[3] McManus, S., Bebbington, P. E., Jenkins, R. and Brugha, T. (2016). Mental Health and Wellbeing in England: the Adult Psychiatric Morbidity Survey 2014. Leeds, UK: NHS Digital.

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[4] Keating, F., Sainsbury Centre for Mental Health and Sainsbury Centre for Mental Health (2002) Breaking the circles of fear : a review of the relationship between mental health services and African and Caribbean communities. London: Sainsbury Centre for Mental Health (The Sainsbury Centre for Mental Health / Report).

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[5] Marmot, M. Fair society, healthy lives : the Marmot Review : strategic review of health inequalities in England post-2010. (2010) ISBN 9780956487001