According to the government quarantine policy, that came into force on 8 June, nearly all international arrivals at UK ports must quarantine for 14 days. Elsewhere we argued that the quarantine policy is irrational, unreasonable, disproportionate and therefore illegal. Here we argue that the policy was introduced mainly because of public opinion – and that public opinion in this case is an irrelevant consideration, one that should not have been taken into account by government.
Was public opinion taken into account in this case?
We have two reasons to believe that the government took public opinion into account when it decided the quarantine policy – and presumably also accorded it significant weight. First, an opinion poll showed that 63% of the public supported the quarantine policy. Second, the Secretary of State for the Home Department, who introduced the policy, openly said that ‘these measures are informed by science, backed by the public and will keep us all safe’. Elsewhere we showed that the government did not provide any scientific evidence to support its policy; that the policy was not informed by science but rather criticised by scientists and was not backed by any of the government’s scientific advisors; and that the policy will not achieve its purpose thus will not ‘keep us safe’. All is left is the open admission that public opinion was a reason for introducing the policy, and with the collapse of the scientific reasons – public opinion was quite possibly the main or only reason for the policy.
Even if the government denies that public opinion influenced its policy, it will not exclude judicial review on the legality of the policy. When a certain public policy cannot possibly be justified by the considerations that the public body claims were taken into account, the court may conclude that the public body had undisclosed considerations that were in fact taken into account (and see, for example, in McMorn, where the court ruled that the public authority had unlawfully taken into account public opinion when deciding its licensing policy).
In our case, one may wonder why government came up with a policy that is so clearly pointless, destructive and illegal – while acting against the advice of its own scientific advisory team (and see in more detail here). With lack of any other reasonable explanation for this unreasonable and irrational quarantine policy, and given this government’s general response to the pandemic, a response that was first led by public pressure or expectations – and was then heavily criticised because of its poor results in terms of protecting public health, it is both likely and not surprising that the government took public opinion into account while introducing its new quarantine policy.
Public opinion as an irrelevant consideration – the relevant criteria
UK courts have rarely addressed the issue of seeing public opinion as an irrelevant consideration in public law. The sporadic rulings and views that can be found in the case-law do not form a coherent jurisprudence on the matter. This lacuna in UK public law calls for further thinking. Public opinion, like most other reasons for or against making a certain administrative decision, is neither an inherently relevant consideration nor an inherently irrelevant one. The relevancy of public opinion depends on the circumstances.
The following is a non-exhaustive list of factors that should be taken into account in order to determine whether public opinion is a relevant consideration at all when public policies are decided – and if it is – the weight that should be accorded to it.
1. The subject-matter: a decision that is based mostly on morality, ideology, political views and so on – or reflects such views – may take public opinion into account. However, a decision that is based or should be based mostly on science, facts, professional expertise etc., should normally ignore public opinion. A decision that should be based on professional expertise but also has ideological aspects, may consider public opinion regarding the latter.
2. The nature of the decision: the more an administrative decision is closer to be quasi-judicial, the less public opinion is a relevant consideration. And when administrative bodies act as judges or sentencers, public opinion becomes a clear irrelevant consideration. That was the case in Venables and Thompson, where the Secretary of State, when making a decision concerning sentencing tariff, had been unlawfully influenced by the large number of public petitions and letters calling for him to impose a life sentence on the two.
3. The impact of the decision on protected human rights: if the decision is likely to infringe on protected human rights, public opinion should either be accorded minimal weight or be perceived as an irrelevant consideration. The reasons for that are twofold: first, from a moral point of view, human rights, by definition, exist and should be protected regardless of the views of the current majority. These rights are being held by humans as humans – regardless of public views or morals. Second, and from a legal point of view, an administrative decision that infringes on protected human rights must be proportionate. There are conceptual, constitutional and moral reasons not to equate proportionality with public opinion. 93 percent of the population supported the lockdown in its early days. That alone did not make the lockdown proportionate and could not have been used as an argument for seeing the lockdown as proportionate. And indeed, despite the massive support from the public, the lockdown was disproportionate after all (and see in more detail here). Within the context of proportionality, public opinion is, quite simply, almost always irrelevant. This view has two notable exceptions.
First, and at the national level, public opinion may lead the court to decide that a certain human rights related question is non-justiciable, i.e. one that should not be decided by the court. That was the case in Nicklinson, where the fact that the issue of assisted dying involved a choice between two mutually inconsistent, fundamental moral values (sanctity of life and personal autonomy), upon which there was no consensus in society, was one of the reasons that led the court to defer to Parliament instead of ruling on the matter.
Second, and at the international level, the concept of public opinion corresponds with that of the margin of appreciation. The doctrine of the margin of appreciation was developed by the ECtHR to judge whether Member States should be sanctioned for limiting the enjoyment of protected rights. Attempting to reconcile differences in how the ECHR is implemented, the doctrine creates a limited right for contracting parties to derogate from the obligations laid down in the Convention. The purpose of the doctrine of the margin of appreciation is to balance individual rights with national interests, as well as resolve any potential conflicts that emerge as a result of diverse moral convictions, often referred to by ECtHR as ‘public morals’ (and see in Bakircioglu). Public opinion, as long as it reflects these ‘public morals’, which are more than mere changeable and short-term preferences, can sometimes therefore decide the scope of protected rights.
4. The question of obedience: if a public policy is strongly objected by significant parts of the public, and is therefore likely to be ignored or disobeyed in ways that would undermine the purpose of the policy or would cause social unrest, that would be a consideration that should normally be taken into account by the authorities. In a democracy, obedience to public policies is not achieved only by raw power or threat of sanctions but also by public acceptance of either the authority of the policymaker, the content of the policy or the decision-making process. If public policies often contradict public opinion, and if it results in low levels of obedience, that may affect the authority of policymakers, legislatures – and the rule of law itself. The weight that should be accorded to public opinion in these cases may vary, but this consideration should not be ignored.
5. The factors that shaped public opinion: if public opinion was shaped by an informed public debate, facts, and rational reasoning, then (all other things being equal) it could be a relevant consideration. If, however, it was shaped by an ill-informed debate, manipulation, lies, irrational fears, etc., it should be accorded little weight, if any (and see Lord Steyn in Venables and Thompson, who ruled that if public opinion is to be taken into account, it is only in cases where public opinion is ‘formed in the knowledge of all the material facts of the case’). It may be argued that it is not for the court to decide whether the quality of public debate and public discourse passes a certain threshold that allows public opinion to be considered as a relevant consideration. This may be true regarding cases where the content of public opinion can be rationally and reasonably justified – including by factors that may have not been considered by the public. But that is not the case when the content of public opinion is utterly irrational – and to a lesser extent – unreasonable, thus cannot be justified. Courts have the power to invalidate irrational and unreasonable public policies. If irrational or unreasonable policies are supported by the public, it normally means that the public holds irrational or unreasonable views, ones that are most likely to result from ill-informed debate, lack of knowledge, manipulation, lies, or irrational reasoning and fears. Public opinion normally cannot ‘legalise’ unreasonable and irrational administrative decisions. These decisions are either unreasonable (because a distorted balance of reasons has been conducted) or irrational (because they will not and cannot achieve their purposes) – regardless of public opinion. If courts have the power to decide the reasonableness and rationality of public policies – then by extension, they may classify public support of these policies as also unreasonable and irrational – or simply ill-founded, as they were willing to do in the past.
6. Public opinion and public trust: public trust in government is crucial for its legitimacy and ability to carry out its policies. Public trust in government may be diminished if government constantly acts against the majority will. But public trust in government does not necessarily result only from government always following whatever the public wants at any given moment. Public trust in government also results from the understanding that government acts in good faith, rationally, legally and for the public good – even if its policies do not always coincide with public opinion or preferences.
The 14-Day quarantine policy – and public opinion
If we were to use the above non-exhaustive list of criteria, it is clear that UK government should not have taken into account public opinion when it decided on the quarantine policy:
1. The policy is not one that reflects morality, ideology or political views. It is one that is supposed to be based on science, facts and professional expertise – regarding its likelihood to protect public health.
2. The policy infringes on freedom of movement and the right to liberty – with the latter being a protected human right.
3. As to the issue of obedience: should government decide on a full or partial ‘open-borders’ policy, then even if the public strongly objects to such policy, it will not result in disobedience because the public is not required by the policy to either to act or to refrain from acting. An open-border policy does not require public obedience. It merely gives all stakeholders a choice. Under an open-borders policy, airline companies can offer flights to the public – but they do not have to offer them. And the public may decide to board on these flights – but they do not have to board them. An open-borders policy offers a choice and requires no obedience, thus the question of possible disobedience to a policy to which the public objects, becomes irrelevant.
4. With lack of any evidence that the policy will achieve its purpose, and with complete lack of any rational or causal connection between means and end, it seems that public opinion on this issue was shaped by an ill-informed debate, lack of knowledge and irrational fears. Given the lack of any evidence that the policy will protect public health, a sour suspicion arises that the policy implicitly reflects an attitude of ‘us against them’. An attitude about the need to protect the health of British people from dangerous, infected foreigners. Proving that the government acted on such views will be almost impossible. But if these views may have affected public opinion regarding the desirability of a quarantine policy, even if unconsciously, then this should contribute to seeing public opinion as an irrelevant consideration in this case.
5. If public opinion is translated to ‘public trust in government’ then it may be a relevant consideration in this case. It is important to maintain public trust in government and the measures it imposes, especially during times where public obedience to (sensible) governmental policies is essential to protect public health. Here, however, a section of the public appears to support an illegal, irrational, unreasonable and destructive policy. Here, and in similar cases, government will gain the public’s trust in the long run, if it tells the public the truth, and explains in good faith how its policies will benefit the public good. Acting on ill-informed public opinion and against the true interests of the public, just to please the public in the short run, demonstrates a complete lack of understanding of the purpose and responsibilities of government. It is also short-sighted as it may result in the public eventually losing trust in government.
The UK quarantine policy is therefore illegal not only because it is irrational, unreasonable and disproportionate, but also because it was probably introduced mostly or only to please the public. In this case, and for the reasons discussed above, public opinion is an irrelevant consideration, one that should have been ignored by government.
Yossi Nehushtan, Professor of Law and Philosophy, Keele University.
Megan Davidson, LLB – Keele University; LLM – The London School of Economics and Political Science (LSE).
Our thanks are due to Michael Gordon and Alison Young for their usual excellent and most helpful suggestions and comments on an earlier draft.
(Suggested citation: Y. Nehustan and M. Davidson, ‘The UK 14-Day Quarantine Policy: Is Public Opinion a Relevant Consideration?’, U.K. Const. L. Blog (30th June 2020) (available at https://ukconstitutionallaw.org/))