Is the Lockdown Lawful? An overview of the debate
20 April 2020
Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made by the Health Secretary on 26 March 2020. Understandably, given the speed with which the crisis was and still is developing, the Regulations were made using a statutory emergency procedure, meaning that they were not subject to Parliamentary scrutiny. They have yet to be challenged in the courts. In the meantime, a lively and important debate has developed about whether those regulations are lawful.
This post aims to provide an overview of the key contributions thus far, and to provide a starting point for newcomers to the debate. The summaries below are necessarily incomplete, and each of the pieces referred to is well worth reading in full.
Lord Anderson of Ipswich QC, begins with an overview of the Regulations and their relationship to their parent statute, the Public Health (Control of Disease) Act 1984. Reg.6 provides that no person may leave his or her home without reasonable excuse, and gives a non-exhaustive list of such excuses, including to obtain basic necessities, take exercise, and travel to a job that cannot reasonably be done from home. A fixed penalty notice may be imposed on those who do not comply, and Reg.8 empowers the police and others to forcibly remove people to their homes if they consider them to be in breach.
The Regulations were made pursuant to s.45C(4)(d) of the 1984 Act, which permits the Secretary of State to impose a “special restriction or requirement” in response to a public health threat. The permitted restrictions and requirements are those listed in s.45G(2), which may be imposed by a Justice of the Peace.
Lord Anderson considers that “the only remotely close match” is subsection (j) – restrictions on where a person goes or with whom he has contact – but he considers it doubtful whether Reg.6 falls within the scope of that provision for two reasons. First, because this would involve “scaling up” to the entire population measures designed to be imposed on individuals; and second, because Reg.6 goes much wider than s.45G(2)(j) since it prohibits all movement or contact, except for very limited purposes. He concludes that “the impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and arguably beyond”, but that that there are nevertheless plausible arguments for its validity.
Tom Hickman QC, Emma Dixon and Rachel Jones also note the lack of clarity in Reg.8, and raise some interesting questions about the scope of Reg.6 (for example, is leaving one’s house to clap for the NHS on Thursday evenings a “reasonable excuse”?). They include a helpful table showing the differences between the countries of the UK (interestingly, in Wales the law limits exercise to once per day, whereas there is no such limitation in England despite misleading guidance to the contrary.
As to the lawfulness of the Regulations, they point out that the restrictions amount to imprisonment at common law, and that exercise of the Reg.8 power would constitute a trespass to the person in principle. To be authorised, such extreme measures would ordinarily require express words or necessary implication in the statute, which are certainly not present in s.45G(2)(j). Most strikingly, they note that s.45D(3) of the 1984 Act expressly prohibits the Secretary of State from imposing certain restrictions all of which would amount to confinement or a trespass to the person, which strongly suggests that the Act does not sanction confining the entire population to their homes. While there is some authority that, in times of crisis, the courts will interpret statutes more broadly, they conclude that “s.45G(2) is by no means a clear or satisfactory basis for such extraordinary powers”. They also raise the question whether the restrictions amount to a breach of the European Convention on Human Rights, in particular Article 5.
A rare voice in support of the Regulations comes from Professor Jeff King. In Part 1 of a two-part blog post, he points out that s.45G(2)(j) explicitly applies to “groups of persons”; and that the whole point of the power to make regulations is to enable the government to respond to problems for which individual applications are ill-suited. He refers to comments in Hansard about the purpose of 2008 amendments to the 1984 Act which, he says, recognise that the powers might lead to incursions into individual liberties. He further points to the near-global consensus on the matter, arguing that “If so much of the world could come quickly to the view that a lockdown was the only, inevitable and indeed proportionate response to this ‘new or unknown disease or threat,’ it is not unreasonable to read [the 1984 Act] as catering for that kind of situation”.
In Part 2 he argues that the current restrictions do not amount to a “quarantine”, which the Secretary of State is prohibited by s.45D from imposing, since people may leave their homes for specific reasons and have “significant practical discretion in deciding whether these apply”. He argues that the current measures are proportionate, in human rights terms, and their universal application to the whole population strikes a fair balance.
In a response to Professor King published on this blog, Robert Craig argues that the Regulations in fact go well beyond the scope of the 1984 Act. He emphasises that the restrictions in s.45G(2) would normally have to be explicitly justified in each case before a member of the judicial branch of government. While the Act envisages that this may not always be possible in a time of crisis, he (like the members of Blackstone Chambers) highlights the fact that some of the most stringent restrictions available to a JP are not available to the government, which strongly suggests that Parliament did not intend to give the executive even wider powers. He draws attention to passages in Hansard which support this view, and highlights the absence of any right of appeal against a decision made under the Regulations, which contravenes s.45F(6) of the Act. He points out that “groups of persons” in s.45G(2)(j) means groups of persons who may be infected, which cannot plausibly extend to the population as a whole.
He concludes that the Regulations cannot lawfully be grounded in the 1984 Act; but under the present circumstances he advocates for a declaration, rather than an order quashing the Regulations, so as to allow the government the opportunity to put them on a more secure legal footing.
In a separate response to Professor King which focuses on the human rights issues involved, Yossi Nehushtan has argued that the lockdown is disproportionate. He acknowledges that saving lives is, of course, a legitimate aim, but says that suitable measures would need to achieve the narrower aim of “saving more lives than the lives that will be lost as a result of the lockdown”. He argues that neither Professor King nor the government has properly addressed whether that aim could be achieved by way of other, less restrictive measures. Moreover, he argues that the aim of saving more lives – mostly the lives of older people who would soon have died of other causes in any event – does not justify the huge and largely unquantified damage to other interests, including the social and mental well-being of individuals, and the economy.
Lord Sandhurst QC and Anthony Speaight QC, writing for the Society of Conservative Lawyers, note the various contributions to the debate set out above. While they do not reach a firm view on the question of legality, they conclude that “the strength of the debate and the arguments advanced by three different sets of legal authors make it, in our view, important for the Secretary of State and Parliament to ensure that going forward the matter is put beyond doubt.” They also draw attention to other deficiencies in the government’s response, including government guidance which makes exaggerated claims about what the law requires, a lack of clarity on enforcement powers. In particular, Reg.8 empowers a relevant person (which includes a community support officer and other, unspecified persons designated by the Secretary of State) to forcibly remove a person to his or her home if the relevant person “considers” that person to be in contravention of Reg.6. There is no explicit requirement for reasonable grounds. Yet there is no, or at least no express power to stop and demand an account from anyone. The authors take different views on this point: Lord Sandhurst QC suggests that such a power is probably implied, whereas Anthony Speaght QC considers that that would require clear and unambiguous statutory wording. Either way, they conclude that “the Regulations as they stand are, in terms of the rule of law, profoundly unsatisfactory”.
Recent contributions to the debate have focused on what should be done to remedy these problems. In an updated paper, discussed in more detail on this blog here, Lord Sandhurst QC and, on this occasion, Benet Brandret QC have provided concrete proposals for action. The paper helpfully summarises and responds to some of the arguments explored above. In summary, the authors suggest three routes to rectifying the deficiencies in the current Regulations:
- Making redrafted regulations under the Civil Contingencies Act 2004, which is specifically intended for extraordinary crises such as this one and grants far more substantial powers to the executive but also requires more stringent safeguards;
- Amending the 1984 Act; or
- Amending the Coronavirus Act 2020, with redrafted regulations, as the 2020 Act as currently drafted does not provide the necessary powers, a curious fact noted in several of the pieces discussed above.
Most recently, Tom Hickman has proposed a sensible list of eight ways to revise and reinforce the current restrictions in order to ensure that they are clear, sound and robust, and adequately tailored to meet their aims without creating unnecessary tensions with individual liberty. These are:
- Place the core restrictions and associated enforcement powers on a clear and explicit statutory basis.
- Require regular renewal by Parliament.
- Remove the subjective nature of the powers (for example by including a “reasonable grounds” requirement in what is currently Reg.8).
- Clarify or limit when force can be used, and by whom.
- Prescribe or limit the power for a “relevant person” to give mandatory instructions to any person they consider to be infringing the measures, which is currently overly broad.
- Make clear that normal shopping for food and drink, including for “non-essential” items, is not an offence (a point also raised by Lord Sandhurst QC and Anthony Speaight QC).
- Remove differences between parts of the United Kingdom unless they have a clear rationale.
- Set out in law additional grounds for persons leaving home where these are accepted by Government.
It is clear that the government has further work to do to clarify and to ensure a secure legal footing for the current restrictions. In the meantime, the debate will no doubt continue to develop.
Hannah Noyce is a barrister at 1 Crown Office Row