Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Tabatha Baylis
“Unlawful and disproportionate”. The most “sweeping and far-reaching” restriction on our fundamental rights since the second world war. These statements were both made by Philip Havers QC in a statement to the UK High Court in July 2020, as part of a legal challenge that queried the legitimacy of the Government’s emergency COVID-19 legislation.[1]
The Government’s lockdown in March closed schools, shops, and limited free movement across the UK and abroad. Whilst seen by many as necessary given the unprecedented circumstances, Havers’ comments are considered to be a legitimate criticism of the Government’s handling of human rights law during the current crisis. The judicial review was raised by Simon Dolan, whose company, Jota Aviation, has been delivering personal protective equipment to the NHS. The case had been paid for through crowdfunding on the CrowdJustice website.[2]
Whilst the case is still ongoing, the fact that over £250,000 has been donated towards Dolan’s legal fees speaks to the ongoing governmental grapple between the health of the public and the same public’s demand for their individual freedoms.[3] As Rebecca Hilsenrath, the CEO of Equality and Human Rights Commission has commented: “We are walking a tightrope”. There is a clear struggle in finding a balance between upholding the public’s right to life, and also “allowing people the hard-won freedoms that are the framework for those lives”.[4]
Does lockdown violate our personal freedoms?
In short: yes and no. Whilst Havers questioned whether the Public Health (Control of Diseases) Act 1984 and the Health Protection Regulations 2020 had indeed given the Government power to close businesses, and concluded that these were “wholly incompatible with [human rights law]’,[5] the questions as to whether this viewpoint has any actual precedence is debatable.
As Francis Hoar points out, any lockdown that prevents freedom of movement or mass gatherings has a “grave” impact on our rights guaranteed by the European Convention on Human Rights (ECHR). Hoar lists these violations as the following: the deprivation of liberty, engaging Article 5; each cardinal freedom protected by Article 8, including the maintenance of relationships with close family members/romantic partners; the restrictions on gatherings preventing the right of worshipers to attend or gather in any place of worship, as protected by Article 9, other than for funerals; and the interference with political rights of association and assembly protected by Article 11.[6]
Hoar also makes the salient point that the isolation imposed on an individual engages Article 14, as this requirement indirectly discriminates against both those with mental illness and women, given that women are disproportionately affected by the spike in domestic violence incidents that have more than doubled during lockdown. Hoar’s argument also points out many children were denied the “basic minimum of education”, thus engaging Article 2, but this point is less relevant to the second lockdown.[7]
However, as Leo Davidson points out, protecting the right to life can and should supersede any and all other human rights concerns, highlighting that “life is a prerequisite for the enjoyment of every other right”. Article 2 of the ECHR imposes an obligation on the state to do all that can be required of it to prevent lives not simply from being lost. Additionally, Davidson maintains that public health is recognised in law as one of the highest of all public interests.[8]
Davidson’s argument is certainly in line with the UK Government’s response to these concerns. In a report by the Joint Committee on Human Rights concerning the Government’s response to COVID-19, it was concluded that the right to life in Article 2 has been, and must remain, central to the Government’s response to Covid-19.[9] The Government maintained that it has a positive duty to take appropriate steps to safeguard the lives of those within its jurisdiction. The report, however, also acknowledged that some of the actions taken by the Government to preserve lives, as required by Article 2 of the ECHR, have interfered with numerous other human rights. It further admits that “the level of interference with rights was for most people, the greatest they will have experienced in their lifetime”.[10]
The Civil Contingencies Act (CCA) 2004 is also of relevance, which is the main piece of legislation that deals with civil emergencies in the UK. An “emergency” is defined as an event or situation which threatens serious damage to human welfare or the environment, as well as war or terrorism. As the report explains, an event or situation does not cause serious damage to human welfare unless it causes loss of human life, human illness or injury, or disruption to healthcare services. Although the Government has thus far opted not to utilise it as part of its coronavirus response,[11] the coronavirus outbreak clearly qualifies as an emergency based on that definition.[12] Therefore, the report generally concludes that whilst lockdown does impede on our human rights, this interference is deemed necessary to preserve lives.
Possible developments
Whilst there is a case to be made that lockdown interferes with our individual rights, it is generally agreed that these rights must not be treated as more important than our right to life and the greater health of the public. However, with COVID prevention being placed in the hands of technology and a high amount of personal data collection, this consensus could shift in the coming months as the UK government seeks to track new outbreaks wherever possible. There have been multiple instances of track and trace data breaches that could pose problems for the government in the future, especially with regards to the right to privacy.[13] There is also an additional talk of UK citizens undergoing mandatory testing in order to earn a “freedom pass”,[14] an idea that is potentially fraught with legal issues. It will be greatly interesting to track these changes, and their further impact on individual freedoms, as the pandemic progresses.
Sources [1] Owen Bowcott, ‘High court hears legal challenge to England's lockdown restrictions’ The Guardian (2 July 2020) <https://www.theguardian.com/world/2020/jul/02/high-court-hears-legal-challenge-to-englands-lockdown-restrictions> accessed 1 December 2020 [2] ibid [3] ibid [4] ‘COVID-19 restrictions and the effect on human rights’ Equality and Human Rights Commission (22 September 2020) <https://www.equalityhumanrights.com/en/our-work/news/covid-19-restrictions-and-effect-human-rights> accessed 1 December 2020 [5] Bowcott (n 1) [6] Francis Hoar, ‘A disproportionate interference: the Coronavirus Regulations and the ECHR’ (UK Human Rights Blog, 21 April 2020) <https://ukhumanrightsblog.com/2020/04/21/a-disproportionate-interference-the-coronavirus-regulations-and-the-echr-francis-hoar> accessed 1 December 2020 [7] ibid [8] Leo Davidson, ‘The Coronavirus lockdown does not breach human rights (Part One)’ (UK Human Rights Blog, 30 April 2020) <https://ukhumanrightsblog.com/2020/04/30/the-coronavirus-lockdown-does-not-breach-human-rights-part-one-leo-davidson/> accessed 1 December 2020 [9] Joint Committee on Human Rights, ‘The Government’s response to COVID-19: human rights implications’ (21 September 2020) <https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26504.htm> accessed 1 December 2020 [10] ibid [11] Public Administration Committee, ‘Parliamentary Scrutiny of the Government’s handling of Covid-19’ (10 September 2020) <https://publications.parliament.uk/pa/cm5801/cmselect/cmpubadm/377/37705.htm> accessed 1 December 2020 [12] Joint Committee on Human Rights, ‘The Government’s response to COVID-19: human rights implications’ (21 September 2020) <https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26505.htm> accessed 1 December 2020 [13] Sarah Marsh and Alex Hern, ‘Government admits breaking privacy law with NHS test and trace’ The Guardian (20 July 2020) <https://www.theguardian.com/technology/2020/jul/20/uk-government-admits-breaking-privacy-law-with-test-and-trace-contact-tracing-data-breaches-coronavirus> accessed 1 December 2020 [14] Christopher Hope, ‘Exclusive: Two Covid tests a week could win people a “freedom pass”’ The Telegraph (21 November 2020) <https://www.telegraph.co.uk/politics/2020/11/21/exclusive-two-covid-tests-week-could-win-people-freedom-pass/> accessed 1 December 2020
Bibliography
News Articles
–– ‘COVID-19 restrictions and the effect on human rights’ Equality and Human Rights Commission (22 September 2020) <https://www.equalityhumanrights.com/en/our-work/news/covid-19-restrictions-and-effect-human-rights> accessed 1 December 2020
Hope C, ‘Exclusive: Two Covid tests a week could win people a “freedom pass”’ The Telegraph (21 November 2020) <https://www.telegraph.co.uk/politics/2020/11/21/exclusive-two-covid-tests-week-could-win-people-freedom-pass/> accessed 1 December 2020
Marsh S and Hern A, ‘Government admits breaking privacy law with NHS test and trace’ The Guardian (20 July 2020) <https://www.theguardian.com/technology/2020/jul/20/uk-government-admits-breaking-privacy-law-with-test-and-trace-contact-tracing-data-breaches-coronavirus> accessed 1 December 2020
Bowcott O, ‘High court hears legal challenge to England's lockdown restrictions’ The Guardian (2 July 2020) <https://www.theguardian.com/world/2020/jul/02/high-court-hears-legal-challenge-to-englands-lockdown-restrictions> accessed 1 December 2020
Websites
Davidson L, ‘The Coronavirus lockdown does not breach human rights (Part One)’ (UK Human Rights Blog, 30 April 2020) <https://ukhumanrightsblog.com/2020/04/30/the-coronavirus-lockdown-does-not-breach-human-rights-part-one-leo-davidson/> accessed 1 December 2020
Hoar F, ‘A disproportionate interference: the Coronavirus Regulations and the ECHR’ (UK Human Rights Blog, 21 April 2020) <https://ukhumanrightsblog.com/2020/04/21/a-disproportionate-interference-the-coronavirus-regulations-and-the-echr-francis-hoar> accessed 1 December 2020
Joint Committee on Human Rights, ‘The Government’s response to COVID-19: human rights implications’ (21 September 2020) <https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26504.htm> accessed 1 December 2020
Joint Committee on Human Rights, ‘The Government’s response to COVID-19: human rights implications’ (21 September 2020) <https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26505.htm> accessed 1 December 2020
Public Administration Committee, ‘Parliamentary Scrutiny of the Government’s handling of Covid-19’ (10 September 2020) <https://publications.parliament.uk/pa/cm5801/cmselect/cmpubadm/377/37705.htm> accessed 1 December 2020
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