In What Circumstances are Lockdowns Justified?

We’re publishing a guest post by Dr David McGrogan, an Associate Professor of Law at Northumbria Law School, asking whether the state is ever justified in imposing a lockdown? Dr MrGrogan thinks it might be justifiable in certain limited circumstances, but those haven’t arisen over the past 16 months and are unlikely to rise in the near future.

Whether we like it or not (spoiler alert: none of us does), lockdowns, mandatory face mask wearing, social distancing and so on are now tools of public health policy and will be deployed again – probably next winter. We must continue to oppose this. But we must also recognise that for most of the population – and certainly for our politicians – the question simply is no longer whether these restrictions should be imposed, but which ones and in what circumstances. My personal answer to those questions is ‘none’ and ‘never’, but I have to recognise that insisting on ideological purity on this point will get us nowhere.

We need, in other words, to think seriously about when governments should be permitted to use these extraordinary powers if we have to accept as a matter of fact that they evidently do in practice have them.

Our courts have been singularly unhelpful in providing any guidance on this, having repeatedly spurned opportunities to do so. So have our legislators, who – with honourable exceptions such as Steve Baker and Charles Walker – have at best been pusillanimous, and at worst simply egged the Government on. It is incredible that 18 months into all of this it should still be the case that Government ministers simply appear on TV and in newspapers to tell us what we can and cannot do from month to month without any principled or evidentiary basis, let alone any reference to legal principle. But that is indeed what is happening. This is a humble attempt to remedy that situation.

First, let’s begin by granting that governments should have emergency powers and that this is arguably ultimately what being a government is all about. Few would suggest that the Government’s widespread use of emergency powers during WWII was illegitimate, to use the paradigm example. And let us also grant that there may be circumstances in which governments should exercise those powers to protect the health of the population through controlling disease. If the ‘brain-eating amoeba’, which has an IFR above 95%, were to somehow become airborne and communicable, for example, then there are few who would suggest that the government should not act to attempt to restrict its spread. Magistrates have for many years had the power to order quarantines and restrictions on movement for individual people or groups of people in order to stop the spread of disease, and there is nothing unusual about it – although one does have to say that in cases of truly serious emergency like the imaginary one described above, there probably would not need to be any legal restrictions because people would just stay at home anyway.

Second, let us make clear that where governments do exercise emergency powers it is axiomatic that they do so on the basis of law, because that is what the rule of law requires. Government ministers do not get to just appear on TV and tell people what the law is (although one would be forgiven for thinking that they do, if the evidence of the last 18 months is anything to go by). They have to get their powers from somewhere.

Given, then, that governments should have emergency powers for controlling the spread of disease, and given that those powers have to derive from law, what then should the law permit? When should lockdowns and associated measures be lawful?

Up to this point, the lockdowns and related restrictions have been imposed on the basis of powers deriving essentially from one Act, the Public Health (Control of Disease) Act 1984. There are cogent arguments as to why this Act does not in fact permit the making of such restrictions, but sadly the Court of Appeal, when given the opportunity, did not agree. Be that as it may, the Act does not provide a great deal of clarity. The Court of Appeal’s view appears to be that the Secretary of State for Health can do more or less whatever he likes thanks to the existence of the Act, because it contains the magical phrases “special restrictions or requirements” of a “general nature”. This gets us nowhere – it is basically carte blanche for Sajid Javid to make whatever restrictions or requirements pop into his head.

We must start from the position that in a liberal democracy (assuming we still live in one) people ought to be free by default as long as they are not harming others or some overriding public emergency of some kind. Even most lockdown proponents would by and large agree with that proposition. The difficulty comes in the definitions of “harming others” and “overriding public emergency”. For the pro-lockdown position, if exercising your freedom means you might spread a harmful virus, then you are potentially “harming others” and therefore your freedom should be restricted. Those who take this position also argue that there is an overriding public emergency because if left unchecked the viral spread might overwhelm the NHS. For those who are against lockdowns, the possibility of spreading a virus that is harmless to most people is not in itself sufficient to qualify as “harming others”, and there is no overriding public emergency because it has never been a realistic possibility that the NHS would be overwhelmed.

How are we to resolve the impasse? One way to think about this is in the language of rights. People in a liberal democracy have the right to liberty – to go where they choose. This can and should be limited by competing rights, such as those to property. I am not allowed to go into your house and use your bathtub, because you have a competing right to enjoy your own property. Similarly, I am not allowed to go around punching people, because those people have the right to protection from being punched. Those competing rights are rights, because they are legally enforceable. Your property rights can be upheld by a court. So can your rights not to be punched in the face.

Now, do people in general have a legally enforceable right not to be infected by disease? No, they do not, and it would be absurd to suggest otherwise, because the only way such a right could be legally enforced would be for the Government to mandate that each individual must inhabit a hermetically sealed container for her entire natural life. The idea that the right to liberty should be restricted to prevent the “harm” of the potential spreading of COVID-19 is, therefore, nonsense. There is no competing right.

Another possibility does, however, present itself: should the right to liberty of individuals be restricted because it has the potential to interfere with the right to receive healthcare, which arguably does exist (certainly in the U.K.), and which might be critically undermined if hospitals were overwhelmed? The answer to that question I think has to be ‘yes’, with the caveat that it has to be plausibly demonstrated that hospitals are going to be overwhelmed if the right to liberty is not restricted (which also requires evidence that lockdowns actually work!), that everything has been done reasonably to increase hospital capacity, and that it does not involve the closure of schools, where for reasons we do not need to go into the competing rights arguments grow complicated. There might in other words be a justification for partial lockdowns on a competing-rights basis if it were true that the NHS simply could not cope with the pressure otherwise and would have to start refusing treatment.

The “overriding public emergency” justification collapses into the above, in that if the public health system collapsed then that would probably constitute an overriding public emergency, meaning restrictions on liberty would be permissible. Again, it bears emphasising that the mere spreading of disease and the fact of illnesses and deaths occurring, while sad, is not in itself a public emergency.

Where does that leave us, then? First, it suggests that without a strong evidentiary basis, the mandating of the wearing of face masks and social distancing really ought never to be permissible, because without that strong evidentiary basis it is not rationally connected to the goal of preventing hospitals being overwhelmed. ‘It makes people feel safer’ is not a valid reason for the making of such requirements.

Second, by the same token, it suggests that stopping people developing ‘Long Covid’ or dying from disease is not in itself a valid justification for any restrictions on liberty. I am not being facetious in making clear that I do believe that all human lives are precious, but I think freedom from state coercion is too.

Third, it suggests that ‘hard’ lockdowns, not including schools, might be permitted where there is a strong case to be made that hospitals will not cope otherwise and all that can be done to remedy that problem (for instance, the use of Nightingale hospitals) has been done. I do not believe we have ever been at that point during any stage of this pandemic, and we certainly are not at that stage now. We might be at some stage in some future health crisis, though.

Fourth, it suggests that vaccine passports, mandatory ‘track and trace’ and the like ought not to be permitted, because – again – there is no good evidence that such measures are rationally connected to preventing the NHS from being overwhelmed. If it were to get to the point that hospitals could not cope with the influx of patients, vaccine passports and ‘track and trace’ would be fig leaves at best, and ‘track and trace’ has manifestly failed to have any significant impact on viral spread.

Of course, all of these arguments disappear if one is happy with the prospect of not living in a liberal democracy in the first place.

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