‘Quarantine’ or mere ‘Restriction’?
In the post published yesterday, I explained that under Part 2A of the Public Health (Control of Diseases) Act 1984, UK and Welsh ministers can make regulations to protect public health that can impose ‘special restrictions’ on persons, things and premises. They can impose such restrictions in the same way that Justices of the Peace may do against individuals and groups. However, there are four exceptions to that general rule (section 45D(3)). The general regulation-making powers cannot be used to force a person to (a) submit to medical examination; be (b) removed to or (c) detained in a hospital or similar establishment, or, and mostly notably, (d) ‘be kept in isolation or quarantine.’ The rationale for the exclusions seems to be that these highly invasive things must be done on a case-by-case (i.e. person or group) instead of community-wide basis.
So, does the lockdown amount to a ‘quarantine’, forbidden by section 45D, or is it a restriction on movement and contact, empowered by section 45G? The 1984 Act does not define ‘quarantine’ but some public health experts appear at times to describe the enhanced ‘community containment’ procedures as tantamount to a nationwide quarantine. For example, in a recently published study, Annaliese Wilder-Smith and David O Freedman catalogue different health responses to infectious pandemics, including isolation, quarantine, social distancing and community containment. They observe that ‘[i]t is a continuum to expand from social distancing to community-wide quarantine with major movement restrictions of everyone.’ And they add that China is experiencing a ‘community-wide quarantine on an order of magnitude that mankind has never witnessed before.’ The American public health law expert Lawrence Gostin and his co-author Sarah Wetter in an article published in The Atlantic equate a lockdown to a ‘nation-wide quarantine.’
Whatever the temptation of using the word ‘quarantine’ in natural language, I would argue the current lockdown should not be seen as a ‘quarantine’ within the meaning of the 1984 Act. Invasive as they are, the restrictions imposed fall short of what a quarantine typically is, and are of a different character in crucial respects. One can leave the house for thirteen enumerated reasons, and people have significant practical discretion in deciding whether these apply. The parks and roads are still reasonably busy with reasonably compliant people. That kind of license is simply incompatible with the assumptions built into a standard quarantine scenario. Furthermore, a quarantine is imposed to prevent the risk of the quarantined person transmitting the disease. The lockdown aims at restricting intermixing between persons who might transmit or who might catch it, which imposes no analogous potential stigma. The measures aim at preserving the public health system from being overwhelmed rather than at controlling suspected cases of infection.
Even so, it remains the case that measures that ask persons to self-isolate could not be made directly enforceable en masse by way of regulations under the 1984 Act. The 1984 Act does not permit ministers to make regulations that directly impose isolation on anyone. To convert ‘self-isolation’ into ‘enforced isolation’ is not straightforward. What they can do by regulations under the 1984 Act is to extend the power to act on a case-by-case basis to persons other than Justices of the Peace. That is what they did in the previous Health Protection (Coronavirus) Regulations 2020, which were replaced by a fuller regime allowing ‘public health officers’ (either previously recognized or designated as such by ministers) to have powers relating to ‘potentially infectious persons’ in schedule 21 of the Coronavirus Act 2020. Under that schedule of the 2020 Act, a public health officer can impose isolation (reg 14(3)) after assessment, but there are several safeguards built in at regulation 15. Nevertheless, from what I can tell, neither the 1984 Act nor the 2020 Act contains any power for a minister to impose directly a nationwide isolation requirement on a class of persons. That would take a new statute. The reality is that strong encouragement followed by action in individual cases of non-compliance would in all likelihood make a direct conferral of isolation imposing powers unnecessary.
Human Rights and Proportionality
The present Government can be applauded for not suspending the operation of the European Convention on Human Rights when it passed the Coronavirus Bill (now Act) 2020. During Lords debate on the Bill, Lord Bethell declared for the Government that ‘every exercise of power by a public authority under this Bill is already required to be compliant with the Human Rights Act. I further reassure the House that, at all times, this Government will act with proportionality.’ (HL Deb., Vol. 802, Col.1777 (25 March 2020)). If reasonable access to the High Court is provided to enable judicial review – an issue to which the House of Lords Constitution Committee placed significant emphasis in its report on the Coronavirus Bill – it means that specific regulations as well as specific directions, orders, fines and prosecutions under the regulations will be subject to review under the common law and under the Human Rights Act 1998. The 1984 Act itself also requires that any special restriction imposed ‘is proportionate to what is sought to be achieved by imposing it.’ (section 45D(2)).
These statutory, common law and human rights safeguards tend to support the vires of the whole scheme. It may be ironic for both legal and political constitutionalists that fulsome powers of judicial review would actually vouch for the lawfulness of the sweeping executive action taken here. If the lockdown is disproportionate or unfair in points of detail there are legal remedies available, e.g. reading in exceptions, reading restrictions down (both under section 3(1) of the Human Rights Act 1998 and using the principle of legality), or quashing individual prosecutions or fines against persons.
To the more general question of proportionality, there is no doubt that the lockdown is a profound intrusion into our freedom of movement. But there are a number of factors that vouch for the proportionality of the measures (i.e. that the measures are suitable, necessary and strike a fair balance between rights and the ‘general interest of the community’ (as the phrase is put in Soering v United Kingdom). A number of other response measures in Britain were tried and found wanting. The social distancing ‘advice’ was effectively ignored. (The idea that the measure must be the ‘last resort’ was the most decisive proportionality criterion in the one European Court of Human Rights case which analysed deprivations of liberty to deal with infectious diseases (Enhorn v Sweden (2005), [44)).The lockdown itself contains a range of ‘reasonable excuses’ permitting a measure of personal freedom, shopping, movement and exercise. There are compensatory social security and public investment measures to help employees, the self-employed and various businesses. And the regulations require the Secretary of State to reconsider the necessity of the measures every 21 days. They therefore appear suitable and necessary within the legalistic understanding of both ideas.
But do they strike a ‘fair balance’? It seems to me that there are few conceivable cases, and perhaps none, in which so weighty a constraint on liberty has been so evenly borne by the entire population (though clearly not every Englishman’s home is a castle). That means that the views of the general population bearing the incredible weight of the lockdown measures are a material indication of their fairness. A recent YouGov poll found that 93 percent of the population supported the lockdown (76% ‘strongly’), with no significant party, age or regional differences. Another found that 46% of people found that the police were enforcing it about rightly, while 29% felt they were doing so ‘too lightly.’
Neither is there any conceptual misunderstanding afoot here, whereby one ‘balances’ human rights on the one hand against the public welfare on the other. Rights are meant to trump countervailing policy arguments, after all. But in reality, there are human rights on both sides of the scale. Equally acute are the rights to life and health of vulnerable groups such as the elderly, homeless, and those with underlying health conditions, as well as the rights to just working conditions of NHS staff and other providers of essential services. The UK is under various international obligations to respect all of these rights. A harmonious interpretation of all human rights does not support an interpretation of liberty that would disable state power to protect in these circumstances. That power is eminently justifiable in human rights terms. Indeed, on 22 March 2020 the French Conseil d’Etat ruled on a case brought by a union for doctors (Jeunes Médecins) arguing that respect for the human rights of the population and for health and other essential care workers actually required a ‘total confinement of the population’ instead of the policy adopted on 16 March 2020, one which was quite similar to the English and Welsh lockdown. The court rejected the central claim, but did find there was enough to the argument to cause it to order the government to issue more specific and more constraining regulations on permissible travel and exercise. The government responded overnight by issuing new regulations.
The basic compatibility between the lockdown and human rights principles should not encourage apathy. The exercise of powers under both the 1984 and the 2020 Acts must respect all human rights and be lawful, non-discriminatory and strictly proportionate. Public authorities may seek to use intrusive forms of surveillance, may fail to adjust measures when medically indicated, or may bid for an extension of powers whose duration or scope is not justified. Only vigilance in Parliament, civil society and by judges mindful of their constitutional duties can ensure that the lockdown is remembered as an historic public health success rather than as a legally and ethically dubious clamp-down on human rights in the name of public health.
Jeff King is a Professor of Law, University College London and a Legal Adviser to the House of Lords Constitution Committee. The opinion in is written in a purely personal capacity
The author thanks Alison Young, Daniel Greenberg, Stephen Tierney, Francois Lichère and Duncan Fairgrieve for comments (and offers his apologies for omitting a careful discussion of the Civil Contingencies Act 2004).
(Suggested citation: J King, ‘The Lockdown is Lawful: Part II’ UK Constitutional Law Blog U.K. Const. L. Blog (2 April 2020) (available at: https://ukconstitutionallaw.org/)).