The lockdown measures imposed by the Health Protection (Coronavirus, Restrictions) (England) Regulations are some of the most extreme restrictions on fundamental freedoms imposed in the modern era. They are a disproportionate interference with the rights and freedoms protected by the European Convention on Human Rights and therefore unlawful.
In considering their proportionality, the failure to derogate from the European Convention on Human Rights (under Article 15) is a relevant factor, as it might suggest that the public health crisis is not one that threatened the ‘life of the nation’. Likewise, the failure to use the Civil Contingencies Act is both relevant to the question of whether the Regulations could lawfully have been passed under the delegated powers of the Public Health (Control of Disease) Act 1984 and to proportionality, given that the Civil Contingencies Act requires much more regular Parliamentary scrutiny and has specific limitations on the extent of any regulations passed under its delegated powers.
The Regulations gravely impact a number of rights and freedoms, including at least to:
- family and private life (Article 8),
- religious practice (Article 9),
- association and assembly (Article 11),
- property (Article 1 of Protocol 1) and
- education (Article 2 of Protocol 1) and probably to
- liberty (Article 5).
They represent an unprecedented intrusion into the freedoms and livelihood of the public at large and the gravity of this impact is a key consideration in determining whether they are the least restrictive means of tackling, proportionately, the spread of the virus.
Article 2 of the Convention (the right to life) does not impose a positive obligation to impose Draconian restrictions as a public health measure and is limited (in so far is relevant) to imposing positive obligations on states to ensure a functioning criminal justice system and to react proportionately to immediate and individual threats to life.
The means by which proportionality should be judged are the Siracusa Principles, developed and recognised by international law to determine the proportionality of quarantines and measures responding to public health crises. These require such measures to be:
- provided for and carried out in accordance with the law;
- directed toward a legitimate objective of general interest;
- strictly necessary in a democratic society to achieve the objective;
- the least intrusive and restrictive available to reach the objective;
- based on scientiﬁc evidence and neither arbitrary nor discriminatory in application;
- of limited duration, respectful of human dignity, and subject to review.
The 5 tests for the continuance of the Regulations declared by the First Secretary of State on 16 April, were as follows:
- That the NHS is able to cope;
- a "sustained and consistent" fall in the daily death rate;
- reliable data showing the rate of infection was decreasing to ‘manageable levels’;
- that the supply of tests and Personal Protective Equipment (PPE) could meet future demand; and
- that the government can be confident that any adjustments would not risk a second peak.
It is submitted that these tests: (a) impose an over-rigorous and unreasonable fetter on the government’s discretion to remove or reduce the restrictions and are wholly incompatible with an application of the Siracusa Principles; (b) would (if applied) retain the restrictions (if, for example, there was not a ‘sustained and consistent’ fall in the death rate) even if an objective evaluation showed that less restrictive measures might have the same object; and (c) fail to require the Secretary of State to have any regard to the impact of the Regulations on the important rights and freedoms they restrict.
An evaluation of the scientific evidence would be unavoidable for any court reviewing the lawfulness and proportionality of the Regulations, as it would otherwise be unable to consider whether the measures were the least restrictive necessary in a democratic society. This scientific evidence is far more uncertain than is generally accepted and there is, in particular, a great deal of uncertainty about the effectiveness of lockdowns in containing spread, the true mortality and infection rates and the accuracy of the modelling from Imperial College that has been key to government policy.
In conclusion, the application of the Siracusa Principles in a judicial review, taking account of the gravity of the removal of so many and such important rights and freedoms with so little democratic scrutiny, is likely to conclude that the measures are disproportionate to their object, were imposed following an unreasonable fetter on the government’s discretion and are thus unlawful.
This is an executive summary of a more in-depth article which is available from the link below. Inevitably, the summary simplifies the detailed arguments and considerations.
The author would like to express his gratitude to Anna Dannreuther, a pupil at Field Court, for her excellent and detailed research that was of great assistance in drafting this article;and thanks Prof Colm O’Cinneide, of University College London, Robert Craig, AHRC PhD Candidate and tutor in law, University of Bristol, and others for their comments and suggestions on earlier drafts of the article.
The article represents the views of the author alone and not those of Field Court Chambers.
Any errors are, of course, the author’s own.