Leviathan Challenged — the lockdown is compliant with human rights law (Part Two)

11 May 2020 by

At present, the lockdown continues. Image: The Guardian

Previously 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.

In the first of two response articlesLeo Davidson argued 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.

In this article, Dominic Ruck Keene and Henry Tufnell argue that the challengers to the legislation have not shown that the measures adopted by the Government are disproportionate in the circumstances of the pandemic.

This is a summary of a paper published here and inevitably simplifies the detailed arguments and considerations within it.  The article represents the views of the authors alone.

Note: This post involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.

Introduction

The inevitable has finally happened – a letter before action has been sent to the Health Secretary challenging the legality of the various restrictions that cumulatively make up the current Covid-19 lockdown within the UK through the mechanism of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) (‘the Regulations‘). The letter before action builds on the opinions previously outlined by Francis Hoar both on the UK Human Rights Blog and in a previous paper concerning the compatibility of the ‘lockdown’ with the ECHR. This post seeks to develop Leo Davidson’s earlier analysis of those arguments.

Here, we make the argument that there has not been a breach of all or any of the relevant ECHR rights, namely Articles 5 (right to liberty), 8 (right to private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 14 (prohibition on discrimination) and by Articles 1 (protection of property) and 2 (right to an education) of Protocol 1. Further, that there is in fact no deprivation of liberty under Article 5.

Engagement of ECHR Rights

The first issue is of course whether the Regulations do in fact engage the ECHR rights claimed at all. We agree with Francis Hoar that Articles 8, 9, 11, 14 and Articles 1 and 2 of Protocol 1 are potentially engaged. However, with respect to Article 5 the current restrictions do not appear to us to amount to ‘deprivation of liberty’ under Article 5.

The current Covid-19 pandemic is a unique situation, unparalleled in history of the ECHR. We point in particular to the potential numbers of infections due to the apparent ease and invisibility of transmission (particularly by the asymptomatic), the very high mortality rates for some in highly vulnerable categories, and the time delay before any vaccine is likely to be widely available.

This must therefore be a paradigmatic situation “where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good,” (De Tommaso v Italy [2017] 65 EHRR 19 at [81]) such that Article 5 is not in fact engaged. The requirements of Article 5 have to be interpreted in light of the context of the unique situation (and the threat to life inherent within it), as well as the current conditions and near universal imposition of ‘lockdowns’ across the ECHR signatory states.” See for example, Creanga v Romania [2013] 56 EHRR 11 at [91], Austin v United Kingdom [2012]55 EHRR 14 at [53-4].

Overall, when considering the “type, duration, effects and manner of implementation of the measure in question” (De Tommaso at [80]), the critical factors concerning the current restrictions are that it is fundamentally different from ‘detention’ or ‘house arrest’ or even ‘close supervision and control amounting to a deprivation of liberty’:

  1. People are not prevented from working, only encouraged to work from home if at all possible. Leaving the home to work is a specified ‘reasonable excuse’ under Regulation 6(2)(f).
  2. People are not prevented from having social contact by all means: there is no restriction on the use of telephone, email, video, or letter. There is also no restriction on someone changing their home – i.e. the ‘place where there are living’ – nor is there a requirement to live in ‘a restricted area’ provided moving is ‘reasonably necessary’ – Regulation 6(2)(l).
  3. No advance permission is required to leave the home, provided that there is a reasonable excuse for doing so.
  4. There is no supervision or monitoring within the home, or a degree of control and surveillance such as in the control order cases: In Surrey County Council v P (Cheshire West) [2014] AC 896, Baroness Hale at [40-41] referred to the question of whether someone was ‘confined’ for the purposes of Article 5 as involving consideration of “whether the complainant was under the complete supervision and control of the staff and not free to leave.” That is clearly not the case under the Regulations. See also SSHD v JJ [2008] 1 AC 385 at [24, 37].
  5. This is not a ‘house arrest’.

By contrast, see the restrictions amounting to a deprivation of liberty in Trijonis v Lithunia (Application No 2333/02) Nikolva v Bulgaria (No 2) [2004] (Application 40896/98) at [53], Lavents v Latvia [2003] (Application 58442/00) at [63], and Buzadji v Moldova 42 B.H.R.C. 398 at [43], De Tommaso at [85,88], Guzzardi v Italy [1981] 3 EHRR 333at [95], HM v Switzerland [2002] (Application 39187/98)at [45].], as discussed on the UK Human Rights Blog here[i].

The Test for Proportionality

The next issue is what the correct test is for considering the proportionality of any restrictions on the ECHR rights engaged. 

The letter before action repeats the assertion previously made by Francis Hoar that: “A determination of the proportionality of the Regulations, imposing a code affecting a number of different freedoms for public health reasons, should be judged through applying the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Right.” He accordingly cites a six part ‘test’ claimed to be found in those principles.

However, the ‘Siracusa test’ as proposed by Francis Hoar is neither found in the Siracusa Principles themselves, nor relevant to the question as to whether there has been any disproportionate interference with any ECHR articles, particularly in circumstances where the United Kingdom has opted not to derogate under Article 15 from the ECHR. The Principles are only potentially relevant where there has been such a derogation due to a public emergency.

We agree with Leo Davidson that the starting point for considering proportionality in respect of  any interference with Articles 5, 8, 9, 11 and Article 2 Protocol 1 is the test contained in Bank Mellat v HMT (No 2) [2013] UKSC 39.

The following matters are also relevant when considering proportionality:

First, a failure on the part of a decision maker to consider either sufficiently, or even at all, whether there are any alternative less restrictive measures does not necessarily in itself make a measure impacting on fundamental rights disproportionate. As Baroness Hale said in Belfast City Council v Miss Behavin’ Limited [2007] UKHL 19 at [31]:

The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account.

Secondly, a court should in general give significant weight to informed legislative choices, in particular where state authorities are seeking to reconcile the competing interests of different groups of society, and/or make wide ranging social and economic decisions, and/or making critical public health related decisions: see for example, R (Steinfeld) v Secretary of State for Education [2018] 3 WLR., Coventry v Lawrence [2015] 1 WLR 3845.

Thirdly, a court should in particular tread very carefully in any area where there are multiple competing scientific models and analysis of restrictions and their efficacy even within the United Kingdom, let alone when considering any alternative measures adopted in other countries.

We agree with Leo Davidson that a key authority as to the limits of a court’s ability in a judicial review to reach its own assessment of the scientific analysis is likely to be R(Mott) v Environmental Agency [2016] EWCA Civ 564 at [66-77]. If there is to be any assessment of the strength of the Government’s scientific evidence, as is the clear implication of the letter before action, then the Government’s scientific advice should be measured against an appropriate yardstick. As those of us who work in clinical negligence are constantly reminded, two ‘leading experts’ can often come to diametrically opposite (yet seemingly equally convincingly argued) conclusions as to what has happened or will happen in complex medical scenarios. The uncertainties involving in medical negligence are reflected in the specific test for breach of duty – the Bolam/Bolitho test, or whether a clinician has acted in accordance with a logical and responsible body of medical opinion.

We would suggest that when assessing whether or not the Government’s underlying scientific assumptions or advisors are ‘wrong’, or whether their advice could not justifiable be the basis of the restrictions imposed, a similar test of being in accordance with a reasonable and logical body of scientific opinion should be adopted that reflects the sheer impossibility of reaching scientific consensus on the ‘lockdown.’

Fourthly, with regards to Articles 14, and Article 1 of Protocol 1, an additional threshold consideration when considering the fourth limb of the Bank Mellat test is that set out in Stec v United Kingdom [2006] 43 EHRR 47, namely whether the social or economic measure employed is manifestly disproportionate to the legitimate aim pursued: R(Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at [134,140] very recently confirmed the relevance of the ‘manifestly without reasonable foundation’ principle to questions of social or economic policy.

Are the Regulations lawful?

The letter before action does not seek to argue that the objective of the Regulations is not sufficiently important, or that the measures are not rationally connected to the objective.

The focus is solely on proportionality, although neither the letter before action nor Francis Hoar’s previous paper considers at all whether the restrictions on those fundamental rights is proportionate when considering the specific context and content of each Article.

It is simply asserted that:

the question of whether the Regulations are the least intrusive and restrictive measure available is relevant to that of whether they are ‘strictly necessary’ in a democratic society. It is submitted that they are neither.

We would argue that they are both.

The Article 2 obligations

The authors agree with Leo Davidson and others[ii] that it is impossible to separate any consideration of what degree of interference with non-Article 2 rights is necessary and proportionate from an assessment of the degree to which the Government could be held to be required under Article 2 to impose measures for the protection of life from risks to life resulting from of Covid-19, even if those measures extended to the whole population. There are both systemic and operational duties that require the Government to act in light of the clear threat to life posed by Covid-19.

In respect of the degree to which Article 2 places any positive obligations on the Government to act, there is not a precise analogy between a natural disaster such as an earthquake or flood (even a flood from an artificial reservoir as in Kolyadenko v Russia [2013] 56 EHRR 2at [151]) and a pandemic such as Covid-19.

However, it is at least arguable that there are some crucial similarities – Covid-19 is a ‘natural’ disease; its spread is not intentional (albeit spread by human choices to interact with each other); coronaviruses do appear to re-appear regularly and were already a ‘known hazard’; and arguably in a globalised and interconnected world a major country such as United Kingdom could not prevent the population becoming infected to at least some degree.

The relevant case law concerning the specific requirements of Article 2 to mitigate against known risks in the context of natural disasters would suggest that these would be the most naturally analogous situation. For example, the ECtHR in Ozel v Turkey [2016] (Application 14350/05)

We would argue that in a situation where the disaster in question is an evolving process, rather than a one off event, it is logical for the state’s ‘prevention’ obligation to mitigate the (future) risk from Covid-19 to life to be continuous even though the risk to life has already begun to be operative.

Alternative measures

A core argument made by Francis Hoar is that the Regulations must be disproportionate because Government has given insufficient or even no consideration to alternative and less restrictive measures. This would pertain to the third limb of the Bank Mellat test.

However, even on the basis of the limited information that has been made public, there is evidence of such consideration having been given to the extent possible and continuing to be given. In particular, the critical SAGE paper ‘Potential impact of behavioural and social interventions on an epidemic of Covid-19 in the UK’ dated 9 March 2020 considered the effectiveness of using all or any of the interventions analysed, namely stopping large scale events, closure of schools, home isolation of symptomatic cases, whole household isolation, social distancing, and social distancing solely for the elderly.

This is exactly the kind of comparative exercise that is alleged not to have been conducted adequately.

We would also point out that neither the letter before action nor the previous paper sets out any less intrusive or restrictive measures that would not have unacceptably compromised the aim of mitigating the risk to life posed by Covid-19, save for indirectly by referring to Sweden.

Individual articles

There a number of additional factors concerning individual Articles that go to reinforcing the argument that whether taken individually or as a whole the Regulations are compliant with the ECHR rights cited.

Article 5

If Article 5 is in fact engaged, then a deprivation of liberty is possible under Article 5(1)(e) ‘for the prevention of the spreading of infectious diseases’. There is no relevant domestic caselaw, and limited consideration by the ECtHR of this provision. The only substantive judgment is Enhorn v Sweden [2005] (Application 562529/00)[iii]. An HIV-positive man was placed in compulsory isolation having been deemed not to have complied with measures under the Swedish Infectious Diseases Act aimed at preventing him spreading HIV.  The ECtHR held at [43]:

the essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are whether the spreading of the infectious disease is dangerous to public health or safety, and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest.

We agree with Tom Hickman et al that the underlying rationale behind Article 5(1)(e) of allowing the effective mitigation of the risk posed by infectious diseases suggests it should not be limited to the detention of infectious persons, but also those potentially infectious.

The present global pandemic illustrates that when required to combat the spread of an infectious disease, measures seeking only to isolate infected persons, or even persons suspected of being infected, will sometimes be insufficient.

Article 9

It is accepted that Article 9 and the right to public and communal worship is engaged. Nevertheless, it is relevant that the Regulations do not in any way restrict the Article 9(1) right to hold a belief, or choices made regarding personal behaviour outside the context of places of worship.  Further, the ECtHR held in Pavlides v Turkey [2013] (Application 9130/09) at [29] that

Article 9, taken alone or in conjunction with Article 11, does not bestow a right at large for applicants to gather to manifest their religious beliefs wherever they wish.

We note that specific consideration was given to the issue of religious services by SAGE in the context of preventing public gatherings and it was stated that “religious services with a high level of physical contact would be higher risk[iv]”. Again, insufficient weight has been given to the degree to which worship can continue online[v].

Article 2 Protocol 1

With regards to any interference with the right to education, we would emphasise that as Lord Bingham held in Ali v Lord Grey School [2006] UKHL 14, the key is that the essence of the right is protected and that it is not deprived of effectiveness: at [12]. Further

there is no right to education of a particular kind or quality, other than that prevailing in the state … The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils: at [24].

Similarly, Lord Hoffmann at [56] held

Everyone is no doubt entitled to be educated to a minimum standard … but the right under article 2 extends no further …

We would argue that there is no conclusive evidence cited to demonstrate that any pupil has been prevented by the Regulations from accessing state educational facilities (in particular by way of remote access) to the extent that they can reasonably be provided within the context of the social distancing measures required by Covid-19.

Conclusion

Of course, the duration of the lockdown is a key factor in its proportionality.  The objective is to buy time, and it must be expected that the Government will use that time wisely, with a view to easing the restrictions as soon as it is safe to do so. But at present, our view is that a court would be unlikely to find that the lockdown breaches human rights legislation.

This article has two authors: Dominic Ruck Keene is a barrister at 1 Crown Office Row and Henry Tufnell is a pupil barrister at 1 Crown Office Row.

This paper represents the views of the authors alone and not those of 1 Crown Office Row Chambers.

The authors would like to express their gratitude to Darragh Coffey of 1 Crown Office Row for his insightful comments and suggestions on earlier drafts of the article.


[i] See also http://echrblog.blogspot.com/2020/03/an-analysis-of-covid-19-responses-and.html (accessed 6 May 2020)

[ii] In particular Jeremy McBride http://echrblog.blogspot.com/2020/03/an-analysis-of-covid-19-responses-and.html?m=1), (accessed 4 May 2020)

[iii] See e.g. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576496 (accessed 6 May 2020)

[iv] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873748/12-spi-m-o-consensus-view-on-public-gatherings.pdf (accessed 6 May 2020)

[v] https://eandt.theiet.org/content/articles/2020/03/church-of-england-attracts-five-million-worshippers-to-its-first-virtual-service/ , https://news.sky.com/story/coronavirus-big-audiences-for-online-church-services-amid-uk-lockdown-11971643  (accessed 6 May 2020)

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