By Keith Syrett
The measures taken in the United Kingdom to respond to the COVID-19 pandemic have been described as “almost certainly the most severe restrictions on liberty ever imposed.”
The main legislative vehicle to address the novel coronavirus is a piece of primary legislation, the Coronavirus Act 2020. However, with respect to civil rights, the key measures are contained in secondary legislation, notably the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020.
There are different provisions applicable to Scotland, Wales, and Northern Ireland. While the measures imposed there broadly correspond to those enacted in England, increasing differences in approach between the constituent parts of the U.K. are emerging as the pandemic progresses.
In addition to the closure of businesses and schools, the measures include:
Preventing any person from leaving or remaining outside the place where they live without a “reasonable excuse.” Such “excuses” include obtaining of basic necessities; taking exercise alone or with members of the same household; seeking medical assistance; providing care or assistance to a vulnerable person; travelling to work or to provide voluntary or charitable services where it is “not reasonably possible” to work or provide those services from home, etc;
Restricting any gathering of more than two people outside the same household, save under exceptions including that it is “essential” for work purposes, to attend a funeral, to provide emergency assistance, etc;
Enforcement, including by persons designated by the minister or local authorities, in addition to police constables and community support officers;
Offences of failure to comply.
Government is required to review these restrictions at least once every twenty-one days, and, as soon as one or more is considered no longer necessary, must publish a direction (that is, a form of delegated legislation) terminating it, either generally or with respect to a particular business or service. The instrument containing the measures expires automatically after six months.
Other measures are contained in government guidance rather than law: these include stipulations which also affect civil rights, including “social distancing,” limiting exercise outside the home to one occasion a day, and not travelling unnecessarily for outdoor exercise. Some of these measures were subsequently relaxed after May 10th, 2020.
The primary legislation could not readily be challenged in a court of law due to the doctrine of parliamentary sovereignty. The Regulations, however, could be challenged on the basis that they exceed the powers conferred by the parent Act, which in this instance is the Public Health (Control of Diseases) Act 1984 (as amended). They can also be struck down under the Human Rights Act 1998 if they are incompatible with the articles of the European Convention on Human Rights given effect by that Act (which include the right to liberty, the right to respect for private and family life, freedom to manifest one’s religious belief, freedom of association, and the right to peaceful enjoyment of possessions, etc.).
At the date of writing, there had been no litigation, but the author is aware of at least one proposed challenge to the legality of the Regulations. This letter before action states of the Regulations that “the measures are the some of the most extreme restrictions imposed on fundamental freedoms in the modern era.”
Perhaps surprisingly, there has been little public resistance or dissent to the measures, although there have, of course, been instances where they have been disregarded. One polling company has reported that 79% of the public were following the restrictions as strictly at the end of April 2020 as they had done when they were introduced on March 23rd.
There is considerable caution with respect to lifting of the restrictions, and the most vocal group arguing for relaxation of the measures has been members of the ruling Conservative party, and proprietors of some of the tabloid newspapers.
Evidence is emerging that the novel coronavirus is having a greater impact upon minority ethnic and poor populations. This might be explained by the larger concentration of those populations living in high-density housing in urban areas, especially in London (where the mortality rate is double that of the next highest region). The proposed legal challenge outlined above argues that the restrictive measures are indirectly discriminatory in other respects, for example, upon those with mental illness (in view of isolation), upon women (given an increase in rates of domestic violence), and upon poor and disabled children, whose education has suffered more than others.
Keith Syrett is a professor of health law and policy at the University of Bristol Law School.