The Coronavirus Act 2020, which was passed in less than three days by Parliament, does not contain the restrictions governing the lockdown in England. These are contained in the Health Protection (Coronavirus, Restrictions) (the Regulations) passed under the Public Health (Control of Diseases) Act 1984. Devolved governments have pursued similar strategies in this respect. As Professor Jeff King has argued on this blog, s.45 of the 1984 Act can be ‘construed literally to confer powers to impose the lockdown’ because it allows for restrictions on ‘persons, things or premises in the event’ of a threat to public health. Like all secondary legislation, following s.3 of the Human Rights Act 1998 this needs to be compatible with the European Convention on Human Rights (ECHR). Yet, as this post sets out, some difficult rights trade-offs and restrictions may come from lifting lockdown restrictions requiring us to revaluate what we consider as normal in terms of balancing rights and liberties.
The ‘Hammer and Dance’ and Proportionality
Niall Coughlan has demonstrated how existing limitation provisions under Article 5 (e) of the ECHR, which allows detention for the ‘prevention of the spreading of infectious disease’, could justify its lawfulness. The way in which the European Court of Human Rights (ECtHR) has interpreted this provision (see Enhorn v Sweden) allows a State to pursue a lockdown as a last resort. Critics of the lockdown, such as Francis Hoar, have argued the lockdown is disproportionate because of the widescale limitations of Article 8, 9 and 11 rights. There are reasons to be sceptical about some of these arguments; just because there is a divergence of practice between ECHR signatory States – the Czech Republic has strict laws on face masks whereas in Sweden pubs are still open – does not necessarily mean that a lockdown is disproportionate.
The restrictions contained in the Regulations are justified in its preamble due to the ‘serious and imminent threat to public health’ posed by the Coronavirus which (according to current scientific understanding) has a relatively long incubation period and can be transmitted by asymptomatic individuals. Enforced social distancing of the sort first engaged in China in January is designed to get the virus replication per-person rate (R) below R1 towards R0.6 or some other appropriate benchmark. This slows the exponential growth of the virus and whilst there are other strategies to get <R1, such as testing and tracing, in many countries lockdowns were the only viable strategy of getting <R1 at speed. To achieve that, severe restrictions on movement would need to last around 7-8 weeks given that, according to a Lancet study, the mean duration from onset of symptoms to death is around 18 days and around 25 days from onset to hospital discharge. This is what a popular summary of the data on the subject termed the ‘hammer’ phase where restrictions on movement need to be at their highest to get to <R1. Given this, the 21-day review period for the restrictions at the moment seems to fulfil the four requirements of a proportionality assessment: that restrictions of a right need be in pursuit of a legitimate aim; the restrictions are rationally connected with that aim; can’t realistically be achieved by other means; and the balance of harms falls in favour of restrictions (see Bank Mellat v HM Treasury ).
But, after getting transmission to <R1 we enter the ‘dance’ phase where a government has to hold that rate down, whilst allowing some restrictions to be eased. This changes the ‘legitimate aim’ criteria of a proportionality assessment from ‘reducing the rate of infection’ to ‘maintaining an appropriate level of transmissibility’. Where critics of the lockdown’s proportionality, such as Hoar, would have a point is if the restrictions were to continue even when transmissibility had fallen <R1. If this were the case, the requirement that ‘the means used to impair the right or freedom are no more than is necessary’ might well question the aim of the lockdown (De Freitas v Ministry of Agriculture ). Yet, even in countries currently pursuing alternative strategies to a lockdown, such as South Korea, there are still spikes of infections. So, absent a vaccine or miracle cure, the easing of movement restrictions does not eliminate the underlying public health crisis. Because of this lifting, the restrictions contained in the Regulations is likely to create two novel human rights issues.
Positive Article 2 Duties
As Natasa Mavronicola notes, the ECtHR has been consistent in saying that there is a positive duty to protect the right to life in the face of man-made and natural hazards (Stoyanovi v Bulgaria). Equally, the ECtHR have held that the authorities should not passively allow a risk to life to continue (Öneryildiz v Turkey). Knowledge of the risk involved is key in cases involving the preventative duty, which is why, as Merris Amos argues, the duty on the state is ‘to take reasonable measures to avoid the risk.’ The leading authority on preventative measures is Osman v UK which requires the authority to have ‘known or ought to have known’ about a risk to life. A common sense application of this would suggest that some businesses subject to restrictions in Schedule 2 of the Regulations, such as car showrooms, might pose less of a risk of increasing transmission were they to reopen than others, such as nightclubs. Nevertheless this assessment would need to be made and it is hard to imagine, given the transmissibility of the virus, that an approach where there is simply a diminishing list of prohibited practices would be compatible with positive obligations under Article 2. Extended guidance for sectors exiting the current restrictions, or modification to existing guidance (for example see Scottish Government guidance on the Construction Sector) may need to be issued.
The legal mechanism for lifting the restrictions would also need to allow for some form of risk assessment. Tom Hickman QC, Emma Dixon and Rachel Jones argue that, as the restrictions were imposed through secondary and not primary legislation, concerns arise as to the ‘clear or satisfactory basis’ for these powers. By the same token, simply deciding that there is no need for renewal of the restrictions under regulation 3(2) because the transmission rate is currently <R1, would be inappropriate given the positive Article 2 duty. Opening all shops again to try and achieve something close to what was normal in February would significantly increase the transmission rate, which represents a known risk to life. Consequently, there would need to be a separate decision reached about whether the measures lifted would risk increasing transmissibility >R1 and some form of risk management, with potential further regulations on social distancing being part of lifting of the current restrictions.
Fresh Article 5 Concerns
If, as has been suggested, there is some form of staggered lifting of restrictions based on immutable factors – such as age – the discrimination could be objectively justified in this case, but a proportionality assessment would have to be made based on transmissibility relating to this cohort. In a world where scientific understanding of the disease is at an early stage, this assessment is likely to be difficult, but the ECtHR are also likely to be deferential to any State undertaking such an exercise as it would be a means of curtailing the last-resort scenario of a lockdown (see Kuimov v Russia). If, however, restrictions needed to be re-imposed, say in response to an increase towards R1, it may be hard to replicate the high levels of public acquiescence accompanying the initial Regulations – polling suggests 90% supported the original restrictions. A second lockdown could mean tighter restrictions, to prevent the exploitation of ambiguity and hence increased transmission. This was the case with the revised Regulations on the 22nd of April which aimed to close a loophole under regulation 6 of the original Regulations about the circumstances under which an individual could leave their home.
Increasing the scope and severity of the regulations could tip towards engaging Article 5. Given the Supreme Court’s recent judgment in Jalloh that stay at home orders can be considered imprisonment at common law and that the government would be well aware of the potential need for a second lockdown, it would be reasonable to expect these restrictions to be a on a more secure legal footing. As David Allen Green notes in relation to the 22nd of April Regulations, imposing further restrictions on liberty by ‘clarifying’ existing regulations without proper parliamentary approval, is in tension with some very basic constitutional norms about the creation of criminal offences.
A new ‘normal’
It has become trite to say that the Covid-19 crisis is unprecedented. Wartime analogies have abounded, but the nature of this crisis defies them because fundamental uncertainties persist both about the Coronavirus’s epidemiology and the possible medical responses to it. The fact that a lockdown could be an unlawful restriction of rights, but lifting it could also interfere with people’s rights, illustrates how this crisis is inverting normal thinking on the balance of rights. The pathology of Covid-19 challenges the small ‘l’ liberal approach to civil liberties, where an individual needs to think in terms of what the law prohibits, and leads to an emphasis on whether a particular action is necessary to reduce disease transmission as the metric for assessing the balance of liberties.
Dr Frederick Cowell, Lecturer in Law, Birkbeck College, University of London
(Suggested citation: F. Cowell, ‘Lifting the Lockdown: The Human Rights Issues’, U.K. Const. L. Blog (1 May 2020) (available at https://ukconstitutionallaw.org/))