The Coronavirus lockdown does not breach human rights (Part One) — Leo Davidson

30 April 2020 by Guest Contributor

Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.

In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.

In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.

Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. 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.

Introduction

With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.

These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough.  As a matter of human rights law, however, they are lawful.  The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.

Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful.  The analysis is wrong, primarily because:

1. It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
2. In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
3. The margin is particularly wide given the complex scientific evidence underlying the decision.

I address these three point in turn, below.

1.     The human rights implications of the pandemic

The starting point of any analysis of the lockdown should be the impact of the pandemic itself, to which the lockdown is a response.  In particular, it should be recognised that the pandemic engages the most fundamental right afforded by the ECHR: the right to life (Art 2 ECHR).

Protecting the right to life is, self-evidently, one of the most basic values of a democratic society (if authority was needed: McCann v UK [1995] ECHR 31 at para 147).  Two further obvious points bear being made explicit: (i) life is a prerequisite for enjoyment of every other right; and (ii) death is permanent.

Art 2 ECHR imposes an obligation on the state to do all that can be required of it to prevent lives not simply from being lost, but also from being avoidably put at risk: LCB v UK [1998] ECHR 108 at para 36.  This overlaps with the Art 8 ECHR right to respect for private life, and imposes similar positive obligations on the state in respect of personal health: Brincat and others v Malta [2014] ECHR 836 at para 102.  Compliance with these obligations is among the highest priorities of a modern democratic state governed by the rule of law: R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10 at para 5.

The obligation to take such positive steps applies in the public-health sphere (Calvelli and Ciglio v Italy [2002] ECHR 3 at para 49), and includes an obligation to ensure access to continuous adequate healthcare by managing risks arising from dysfunction and structural problems (Aydogdu v Turkey [2016] ECHR 719 at para 56).  A duty to take specific measures arises if the authorities (i) know, or ought to know, of the existence of a real and immediate risk to life, and (ii) retain a certain degree of control over the situation: Finogenov and others v Russia [2011] ECHR 2234 at para 209.

The uninhibited spread of the virus would also have a discriminatory impact on the enjoyment of the right to life and the protection of health, and permitting this would be contrary to Art 14 ECHR.  Although there is much to be learned about the virus, one thing that is clear is that the elderly and those with underlying health issues are particularly vulnerable once they have contracted it.  Statistics suggest that ethnic minorities also fare disproportionately badly.  Much work, which cannot be carried out from home and therefore carries risk of exposure, is more likely to be done by those of lower socio-economic status.  Those in institutional settings, such as residential homes and prisons, are particularly vulnerable.

A pandemic spread by human-to-human contact is not strictly analogous to a natural disaster, inasmuch as the spread is a function of human activity.  The state is able to exert control over human activity by making and enforcing law.  The state is therefore able to affect the impact of the pandemic and as a result has a positive obligation under Art 2 ECHR to do so.  Imperial College projected that, absent preventative measures, 550,000 people would die.  With mitigation, it projected excess deaths of 260,000.  More aggressive measures, including but not limited to lockdown, would bring the toll down to the low tens of thousands – meaning hundreds of thousands of lives saved.

It is not necessary for these purposes to argue that the Government is obliged to take any specific step, or that failure to impose the lockdown would itself be a breach of Article 2 (the scope of the duty has been subjected to a fair amount of analysis — clicking on each of those words will take the reader to a different article).  The state has a wide discretion as to how it complies with the duty and balances it against competing considerations, but the existence of the duty itself is clear.

Indeed, even leaving aside any duty under the ECHR to take steps to mitigate the pandemic, the State is still clearly entitled to have regard to the rights of those in its jurisdiction.  Safeguarding life and public health are among the most essential functions of Government and will be weighty objectives to justify interference with other rights.

Seen in this light, any proportionality assessment which takes the restrictions themselves as the starting point is telling only half the story.  Given the duty on the state to safeguard the lives and health of those in its jurisdiction, and the potentially dire consequences of an unchecked spread, the primary duty on the state is to take appropriate steps to minimise the toll of the pandemic.

2.     The margin of discretion

The decision to impose a lockdown in response to the pandemic involves weighing harms against each other.  Nor do these harms simply relate to public health on the one hand and civil liberties on the other.  There is no strand of social policy which is untouched by the crisis: both action and inaction would have profound implications for the economy, national security, diplomacy, trade, law and order, culture, community cohesion, leisure, politics, education, and personal well-being.  Under the UK’s constitution it is the role of the executive, democratically elected and accountable, to decide what priorities should be and how to achieve them.

In any such endeavour, the Government is afforded a margin of discretion (sometimes also referred to as a margin of appreciation, though this term is somewhat controversial).  This margin will be wider where the decision relates to an area of social or economic policy, let alone a combination of several, which are quintessentially the purview of the executive.

Public health is recognised in law as one of the highest of all public interests, and the margin of appreciation is particularly broad where the objective of a measure is the promotion of a benefit of such great general importance (R (British American Tobacco UK Ltd) v SSH [2016] EWCA Civ 1182 at paras 196 and 223; R (Sinclair Collis Ltd) v SSH [2011] EWCA Civ 437 at para 23).

Adjudicating recently on a decision to free up hospital resources in the context of the pandemic, the High Court noted:

Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. The fact that we are now in the midst of the most serious public health emergency for a century is likely to accentuate the need for such decisions (University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) at para 56).

That is not to say that such a decision is immune from judicial review.  The proportionality test is set out in Bank Mellat v HMT (No 2) [2013] UKSC 39 at paras 20 (Lord Sumption) and 74-75 (Lord Reed).  The third stage of the analysis involves consideration of whether an alternative, less intrusive measure could have been employed without unacceptably compromising the objective.

Two points arise from their Lordships judgments (which agree on the substance of the test).  First, both are clear the “alternative measure” test cannot be applied without having regard to the decision-maker’s margin of appreciation.  Secondly, and more obviously, the less intrusive measure must actually achieve what the more intrusive measure was designed to do.

At para 21, Lord Sumption emphasised the limitations of the judiciary’s role in reviewing executive decision-making, in a passage worth quoting at length:

None of this means that the court is to take over the function of the decision-maker, least of all in a case like this one. … [A]ny assessment of the rationality and proportionality of a Schedule 7 direction must recognise that the nature of the issue requires the Treasury to be allowed a large margin of judgment. It is difficult to think of a public interest as important as nuclear non-proliferation. The potential consequences of nuclear proliferation are quite serious enough to justify a precautionary approach. In addition, the question whether some measure is apt to limit the risk posed for the national interest by nuclear proliferation in a foreign country, depends on an experienced judgment of the international implications of a wide range of information, some of which may be secret. This is pre-eminently a matter for the executive. For my part, I wholly endorse the view of Lord Reed [at para 93] that “the making of government and legislative policy cannot be turned into a judicial process.

One might think (though Lord Sumption himself may not) that a public health crisis of the current magnitude constitutes a no less important issue of public interest, whose potential consequences justify a similarly precautionary approach.

For his part, at para 75, Lord Reed emphasised (citing Dickson CJ in R v Edwards Books and Art Ltd [1986] 2 SCR 713, 781-782) that ‘the limitation of the protected right must be “one that it was reasonable for the legislature to impose”, and that the courts were “not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line”.

“This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois Elections Bd v Socialist Workers Party (1979) 440 US 173, 188-189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a “least restrictive means” test would allow only one legislative response to an objective that involved limiting a protected right.”

Hoar raises the example of Sweden but does not in fact spell out any alternative measures. However, it is not difficult to hypothesise different ways in which the lockdown could have been structured.  There could for example have been a lighter or differently-formulated general restriction, with fewer or different exceptions.  The mechanics of enforcement could have been more informal, perhaps compensated for with a greater focus on public persuasion.  Other tools could include mass surveillance, mandatory testing, rationing, financial incentives, and targeted application (e.g. focusing on those most at risk).

All of these have pros and cons, winners and losers.  The decision to adopt some and not others is squarely within the Government’s margin of discretion, and each periodic review (due to take place every three weeks) will take into account the latest circumstances.  Quite properly, this will include public opinion (which in turn, of course, will incorporate the public’s level of acquiescence to ongoing restrictions on some of their rights).

The notion that a court would involve itself in this process is implausible, and indeed highly undesirable.

3.     Scientific evidence

Hoar does not merely say that the Government has struck the wrong balance in seeking to avert a public health catastrophe (perhaps recognising the unattractiveness of that position).  Rather, he casts doubt on the reliability of the factual assumptions underlying the Government’s approach, emphasising the uncertainty of the scientific picture.

It is true that there are many unknowns.  While more and better information is being gathered daily, many questions remain as to the actual state of play, and estimates of crucial metrics vary considerably.  Meanwhile, projections and predictions are only as good as the data used to produce them. 

This uncertainty does not undermine the lawfulness of the lockdown.

The Government can only, and must, act having regard to the best scientific advice available to it.  That advice will come from experienced experts in a number of fields, whose professional judgment enables them to identify the highest quality data and draw competent conclusions. 

The Court of Appeal has held that

on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible decision-maker has reached after consultation with its expert advisers (R v Secretary of State for Health, ex p Eastside Cheese Company [1999] EWCA Civ 1739).

For its part, the ECtHR has emphasised that

except in cases of manifest arbitrariness or error, it is not the Court’s function to call into question the findings of fact made by the domestic authorities, particularly when it comes to scientific expert assessments, which by definition call for specific and detailed knowledge of the subject (Lopes de Sousa Fernandes v Portugal [2017] ECHR 1174 at para 199.)

The courts will be even more hesitant to intervene where the relevant factual findings are predictive, rather than findings of existing fact: R (Mott) v Environment Agency [2016] EWCA Civ 564 at paras 68-78.

It is therefore not necessary for present purposes to query Hoar’s methodological approach, much less to consider in any detail the content or credibility of his cherry-picked articles.  Nor need we haggle over exactly how much genuine scientific uncertainty exists.  Taken at its highest, he does no more than suggest the possibility that the Government’s scientific understanding “may” (emphasis original) be wrong.

To reiterate, there is of course scope outside the legal arena to disagree with the Government’s strategy, and to challenge the advice on which it relies.  But no judge, in the UK or Strasbourg, would criticise the Government for relying on reasonable expert advice and acting accordingly.  Still less will the court substitute its own amateur assessment of conflicting scientific evidence without a clear case of error or irrationality.

It is also entirely proper for a decision-maker, faced with uncertain or conflicting scientific evidence, to adopt a precautionary approach.  Positive thinking has its place, but public health policy during a pandemic calls for serious consideration of worst-case scenarios – and it is for the executive to decide what its “worst case” would be.  Once the Government has reached a policy decision as to its priorities and objectives in handling the crisis, its margin of discretion extends to allowing for error on the side of caution.

Conclusion

It is not the purpose of this analysis to defend the merits of the lockdown (even if the author were qualified to do so).  Rather, it is to demonstrate that any controversy as to the Government’s handling of the pandemic – of which there is certainly no shortage – should be litigated in the political sphere, not through the courts.

There is a well-established body of both domestic and Strasbourg authority affording the state a wide discretion as to how it balances various considerations and assesses risk.  The COVID-19 pandemic is a paradigm case calling for a complex balancing of several fundamental rights and interests, where that margin will be substantial.

The choices criticised by Hoar (and others, in both directions) are quintessential questions for the elected branch of Government to debate, decide and oversee.  The courts will not usurp that role, and with good reason.

Leo Davidson is a barrister at 11KBW. He tweets at @leodavidson.

The author is grateful to Tim Pitt-Payne QC, also of 11KBW, for reviewing a draft and providing helpful suggestions. Any errors are of course the author’s alone.