Harsh criticism, mainly from politicians and the travel industry has been expressed regarding the new government policy, according to which, and from 8 June, nearly all international arrivals at UK ports must quarantine for 14 days. It is surprising that very little has been said about the clear illegality of this policy, despite a very recent judicial review process that has been brought against the policy by a few airline companies. In this post it is argued that the quarantine policy is irrational, unreasonable and disproportionate – and therefore illegal. A preliminary note about the differences between rationality and reasonableness will be followed by applying rationality, reasonableness and proportionality to our case.
Rationality and Reasonableness
Even though UK courts have been applying the concepts ‘rationality’ and ‘reasonableness’ indistinguishably, it is both conceptually possible and helpful to treat them as two separate grounds of review. Whereas ‘reasonableness’ is a balancing test that focuses on the weight that was accorded to the relevant considerations, ‘rationality’ – properly understood – is a logical/causal test that focuses on the relation between means and end. Both tests can be applied with various levels of scrutiny. So, for example, a court may invalidate an administrative decision on the ground of reasonableness, either only when the weight that was accorded to the relevant considerations was extremely distorted – or also when it was mildly distorted. Regarding rationality, the court can invalidate an administrative decision either only when there is absolutely no logical/causal connection between means and end – or also when there is some logical/causal connection, yet a relatively weak one.
Elsewhere I argued that rationality, as a distinct ground of review, one that is not interchangeable with ‘reasonableness’, can only be understood as ‘instrumental rationality’, i.e. as deploying the appropriate means in order to achieve certain ends (whatever these ends may be). Perceiving rationality as ground of review that only focuses on the relation between means and end is the most helpful and accurate way to understand the distinctiveness of this ground of review. This perception of rationality is sufficiently specific – but not too narrow; it avoids vagueness and uncertainties; and it does not apply to cases that are better described and scrutinised by other grounds of review. ‘Instrumental rationality’ is an existing ground of judicial review in the UK – both as one of the sub-tests of the proportionality test (the ‘suitability’ or ‘rational connection’ test), and as a general ground of review in public law, albeit confusingly included in what is often called ‘Wednesbury reasonableness/rationality’ (and see in Balchin, para 27; and Coughlan, para 65).
The suggested distinction between rationality and reasonableness can also mark the distinction between judicial activism and judicial deference. The nature of judicial review and the level of scrutiny applied in every case depends on the context (see in Pham, paras 60, 94, 109). There is a spectrum of judicial review on the merits of administrative decisions (in terms of levels of scrutiny) where at one end we find Wednesbury reasonableness in its original meaning, that almost equates reasonableness as sanity and at the other end we find the proportionality test. Between these ends we find ‘modified/variable reasonableness’ and ‘anxious/strict scrutiny’ (in cases concerning rights). The distinction suggested here between reasonableness and rationality may mean that rationality, properly understood, is placed at the ‘deference end’ of the spectrum, next to Wednesbury reasonableness or perhaps beyond it. Rationality may also be placed beyond the spectrum of judicial review on the merits of administrative decisions because rationality, unlike reasonableness, ‘anxious scrutiny’ and proportionality (stricto sensu), is not a balancing test. It merely reviews the logical/causal connection between means and end.
The quarantine policy – and rationality
The general purpose of the quarantine policy is to ‘save lives’. More specifically, the policy states that the quarantine is necessary ‘in order to keep overall levels of infection down and in line with many other countries’, and that the policy ‘will contribute to keeping the overall number of transmissions in the UK as low as possible’. It is quite clear though that the quarantine policy will not achieve these purposes, not even remotely, because there is no logical or causal relation between the means (14-day quarantine for international arrivals) and the end (keeping the levels of infection down). This is so because compared to other countries worldwide, the UK has one of the worst ‘COVID-19 performances’ in terms of both infection and death rate. The UK is in fact rated as the third worse-performing country in the world. No governmental answer has been given to the obvious question of how applying the quarantine policy to tourists or UK residents coming from countries where the infection and death rate is lower than in the UK, can keep the level of infection down within the UK. With a complete lack of rational or causal connection between the means (the quarantine policy) and the end (reducing health risks), the quarantine policy is irrational and therefore illegal.
Basing a policy that aims to protect public health on scientific evidence, could help in making the policy rational. Alas, the government has failed to do that. Leading scientists described the policy as one that makes no sense. Section 2.5 of the government policy states that the policy is ‘informed by science’, and that ‘government will continue to be guided by the best scientific and medical advice to ensure that it does the right thing at the right time’. The government, however, refused to reveal the scientific advice behind its policy – presumably because there was none. An indication of this lack of scientific advice that could support the policy can be found in the fact that the government’s chief scientific adviser, Sir Patrick Vallance, refused to back the blanket quarantine policy, saying that the advice from the Sage advisory committee was that ‘quarantines worked best when… applied to countries from higher rates’ and that the decision to introduce the policy was ultimately one for ministers.
Even under the assumption that implementing a quarantine policy by a country that has one of the worst COVID-19 performance in the world makes some sense, the policy itself is inefficient and will fail to achieve its purpose, for two reasons. First, the policy does not apply to many, including ‘a registered health or care professional travelling to the UK to provide essential healthcare, including where this is not related to coronavirus’, ‘a road haulage worker and road passenger transport worker’, and many more. Therefore, health workers, drivers in public and private transportation and many other workers, as specified in the policy, could enjoy a summer holiday abroad and return to the UK without having to quarantine for 14 days. The number of people who can enjoy this exemption is estimated to be 2 million. Generally, when a certain policy allows too many exemptions to it, it may undermine the purpose of the policy itself. Here, if 2 million people are exempt from the quarantine policy, the purpose of which is to keep the infection level in the UK low, the already questionable health benefits of the policy are being undermined even further.
Second, the policy ignores ‘backdoor routes’ that would allow, for example, a tourist from anywhere in the world to fly to Ireland and from there to England, without being checked or quarantined, as arrivals from Ireland are also exempt from the new policy. Thus, even if we take the purpose of the policy on its face value – it is clear that having vast amount of people who are exempt from the policy will make the policy unfit for purpose and therefore irrational and illegal.
The policy – and reasonableness
Even if we assume that the quarantine policy is rational and that it will achieve its purpose, either in full or in part, the policy will still be unreasonable and therefore illegal. Elsewhere I argued that reasonableness, as a distinct ground of judicial review, can only be understood as a weighing and balancing test – one that refers to the content of the administrative decision. An unreasonable decision is one that results from according distorted weight to relevant considerations. As Paul Craig shows, this is how courts in fact apply the reasonableness test, yet often without admitting that what they actually do is to review the merits of the administrative decision.
In our case, the only relevant reason for imposing the 14-day quarantine policy is protecting public health. Even if we assume that the policy will protect public health, there is no evidence, or fact-based or science-based reasonable assumption that the ‘extra protection’ gained by the policy will be meaningful and that it should therefore be accorded significant weight. On the other side of the balancing scale, however, we find numerous reasons against the policy. The policy is limiting people’s freedom of movement and their right to liberty; creating uncertainties regarding the feasibility of summer holidays; preventing travel companies from planning ahead; denying source of income to many whose livelihood depends on international tourism; and significantly increasing the risk of job losses of tens of thousands of people.
This policy, therefore, clearly results from according too much weight to the public health speculative, ill-founded consideration – and not sufficient weight to all the reasons against the policy and the certain harm that will be caused by it. This policy results from conducting an extremely distorted balance of reasons, so distorted that it is ‘so unreasonable that no reasonable authority could ever have come to it’ – thus being even ‘Wednesbury unreasonable’.
Section 2.5 of the government policy states that ‘government will ensure that all measures taken to control the virus are proportional to the risk posed, in terms of the social and economic implications’. The rhetoric of the government is committed to according the proper weight to competing considerations. But reasonableness, or proportionality, or any other balancing test, is an outcome-focused test. The facts that government is aware that it is under a legal duty to act reasonably and proportionately – and that government says that it did exactly that – are of little importance. It is the outcome – and here, the content of the policy – that tells us about the weight that was accorded to the competing interests. Here, the content of the policy suggests that the social and economic implications of the policy were not accorded proper weight.
The policy – and proportionality
The proportionality test can be applied to scrutinise administrative decisions only if protected rights were infringed. It can therefore be applied to our case, because the 14-day quarantine policy infringes on the right to freedom of movement (Art 2 of the ECHR) and the right to liberty (Art 5 of the ECHR). The proportionality test adds one element to what has been said thus far – that of ‘necessity’. Proportionality is a four-stage test which includes: (1) legitimate aim, (2) suitability (or rational connection); (3) necessity (or applying the least intrusive measure); and (4) proportionality in the narrow sense (or proportionality stricto sensu). The first sub-test (having a legitimate aim) is met here – with the policy aiming to protect public health. The second sub-test (suitability) is identical to the rationality test described above – and the fourth sub-test (proportionality in the narrow test) is identical to the reasonableness test described above (for a detailed argument about the complete overlap between proportionality stricto sensu and reasonableness, see here). What the principle of proportionality adds to our analysis is the third sub-test, that of necessity. While applying this test we assume that the quarantine policy will achieve its purpose – protecting public health. The necessity test requires government to show that less restrictive measures were considered and found not equally effective. Government is under a legal duty to find the least restrictive measure that is equally (or nearly equally) effective in achieving the purpose of protecting public health. There is no evidence that government tried to meet these legal requirements. The fact that more restrictive measures were avoided (e.g. closing the borders entirely) does not mean that less restrictive measures were considered and rejected – or that they do not exist (e.g. deciding to quarantine only those who come from places where infection rates are higher than in the UK).
The quarantine policy is irrational, unreasonable and disproportionate – and therefore illegal. Recently, a South-African court ruled that a few lockdown rules there were illegal and therefore void. The ruling of the South-African court can inspire UK courts on two fronts. First, it demonstrates that even in times of a pandemic, narrow health considerations (and here – keeping the infection rate down) are not always trump cards. They do not automatically outweigh competing considerations. A balancing process between the narrow health considerations and competing considerations must still be conducted. Moreover, the narrow health considerations may be at odds with broader health considerations. In our case, keeping the infection rate down is achieved by a policy that will result in massive job losses. It is well-known that being unemployed, suffering from financial instability and uncertainty, and being pushed into poverty affect one’s mental and physical health. So even if health considerations are paramount, they do not necessarily side with focusing only on infection rates.
Second, the South-African ruling suggests that courts should not rush into declaring that the subject-matter of this case is institutionally non-justiciable, i.e. that this is a case that should not be decided by courts. Without elaborating on that point, courts should be very careful before they decide that a clearly illegal decision, one that has significant social and economic implications and does not lie at the heart of a paradigmatic non-justiciable subject (e.g. foreign relations) – is institutionally non-justiciable.
Evaluating the legality of lockdowns generally or a set of complicated and intertwined lockdown rules is a mighty task. Here, however, we face an isolated policy, the legality of which is as clear as the sun in places we are not allowed to visit without being quarantined upon our return.
Yossi Nehushtan, Professor of Law and Philosophy, Keele University.
My thanks are due to Alison Young and Michael Gordon for their exceptionally challenging, insightful and helpful comments on a previous draft.
(Suggested citation: Y. Nehushtan, ‘The 14-Day Quarantine Policy is Illegal’, U.K. Const. L. Blog (17th June 2020) (available at https://ukconstitutionallaw.org/))