The Legality of Lockdown – Do Coronavirus Restrictions Go Too Far?
Key Contact: Claire Knowles
Author: Adam McGlynn
2020 was a year of rules and restrictions the likes of which no one could have anticipated. Since March, legislative responses to the Coronavirus pandemic have been issued on an almost daily basis, though still often struggling to keep up with Government announcements. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) first brought into effect, on 26 March 2020, the broad restrictions of the UK’s first national ‘lockdown’ which had been announced three days earlier.
The Regulations had a significant impact on civil liberties in that name of preventing the spread of COVID-19 including confining people to their homes, requiring businesses to close, and placing limitations on gatherings. Though the Regulations were subsequently repealed in July 2020, similar restrictions were consistently imposed by replacement legislation over the course of the year and are likely to continue, in one way or another, for the first half of 2021. But were the Regulations lawful? In December 2020, the Court of Appeal passed final judgement on this important constitutional question.
In May 2020, a judicial review was sought to evaluate the impact and appropriateness of the Regulations on the basis that they were unlawful on the following grounds:
- The Regulations were ultra vires the Public Health (Control of Disease) Act 1984 (the Act);
- The Regulations apply ordinary public law principles; and
- The Regulations violate fundamental human rights guaranteed under the European Convention on Human Rights (ECHR).
The application was rejected by the High Court. However, the Court of Appeal decided to hear the application to appeal on the basis that it was in the public interest even though, by this point, the Regulations had already been repealed and the judgement would be largely academic.
The term ultra vires means to go beyond legal powers or authority. In this case, doubt was cast over whether the Secretary of State had been granted sufficient power by the Act to enact the Regulations as (1) the restrictions imposed were similar to those special restrictions which can be imposed by a justice of the peace; and (2) the Regulations applied nationally rather than to a more specific person or group of persons.
However, the Court of Appeal found that the express limitations within the Act, which the appellant relied on, were limitations of the restrictions which could be imposed by a justice of the peace. The Act, in fact, grants the Secretary of State quite wide-ranging powers as it was amended by the Health and Social Care Act 2008, following the SARs epidemic, in order to allow a swift response to a modern epidemic. If the Act imposed such severe limitations of the Secretary of State it would render the power ineffective in the event of such a tragedy and, if it also required an order from a justice of the peace, there would, in effect, be no power granted at all.
Public Law Principles
The appellant argued that the Secretary of State failed to abide by appropriate public law principles when issuing the Regulations. He argued that relevant considerations had not been taken into account including the effect of the Regulations on public health and the economy and whether less restrictive measures would have been more proportionate. There was no proof, however, that the Secretary of State did not consider such things and the Court of Appeal was satisfied, on the evidence available, that such considerations had been made.
The appellant additionally claimed the Regulations to be irrational as there was no justification for applying the restrictions to all members of the public when it could have been limited to more specific cohorts, such as those considered vulnerable. The Court of Appeal, however, recognised the presence of conflating opinions on this subject and found that the Government should be accountable to Parliament for political judgements such as this, rather than the judiciary. In addition, they recognised the presence of scientific and medical evidence considered by the Government and the responses already taken by nations across the world.
Contravention of Human Rights
The Regulations imposed a number of restrictions on the way we live our life in order to prevent the spread of Coronavirus. However, the Court of Appeal found that these restrictions did not infringe upon fundamental human rights, as alleged by the appellant. For example, they did breach the right to personal liberty because the regulations contained proportionate exceptions to the restrictions imposed including an overriding exception of ‘reasonable excuse’. Though the Court of Appeal accepted that the Regulations could arguably interfere with (1) the right to respect for private and family life; (2) the right to peaceful assembly and association; and (3) the right to peaceful enjoyment of possessions, these interferences would be justified as proportionate means towards a legitimate aim, namely the protection of public health. Considering the limitation and exceptions incorporated within the Regulations, the time limits and review mechanisms put in place, and the lack of any evidence that the Regulations were being enforced in a disproportionate manner in practice, the Court of Appeal found no breach of human rights.
Through the Regulations, the Government attempted to strike a balance between civil liberties and public health at a critical moment of the Coronavirus pandemic. The Court of Appeal recognised that the Government’s actions were lawful and that it would not be appropriate for the judiciary to interfere, or hold the Government to account, for matters of political judgement. Nevertheless, as the virus is brought slowly under control, and vaccines are gradually distributed, the Government will need to ensure that any restrictions imposed are necessary, reviewed regularly, and enforced proportionately.
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