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I argue, in this post for the UKHR blog, that the 'lockdown' regulations are incompatible with the ECHR and thus unlawful: https://ukhumanrightsblog.com/2020/04/21/a-disproportionate-interference-the-coronavirus-regulations-and-the-echr-francis-hoar/.
This is a version of a more detailed paper published here: https://fieldcourt.co.uk/wp-content/uploads/Francis-Hoar-Coronavirus-article-on-ECHR-compatibility-20.4.2020-1.pdf
This is a version of a more detailed paper published here: https://fieldcourt.co.uk/wp-content/uploads/Francis-Hoar-Coronavirus-article-on-ECHR-compatibility-20.4.2020-1.pdf
The Regulations - not least those of association and assembly (never before have all political demonstrations been proscribed) - are some of the most extreme restrictions imposed on fundamental freedoms in the modern era.
Parents may not see their children. Worshippers may not attend their services or children their schools. Businesses must close and thousands will fail. In a time of muted opposition, all meetings and public demonstrations are, for the first time in history, proscribed by law.
They thus require the highest justification.
In determining proportionality, the court should take into account that HMG chose not to use the Civil Contingencies Act, which would have required much more democratic scrutiny (positive resolutions in both Houses every 30 days, regardless of whether they are sitting);...
...and that they have chosen not to derogate from the Convention under Article 15.
The best means of determining proportionality on a global basis (given that the restrictions interfere with multiple protected rights) is by applying the Siracusa Principles, developed and recognised in ILR as a means of determining the proportionality of public health measures.
These require, inter alia, that measures must be the least restrictive necessary to achieve the objective, that they are necessary in a democratic society, that they based on scientific evidence and not arbitrary and that they are of limited duration and subject to review.
I consider and cite evidence that questions the scientific justification for measures as restrictive as these. In particular: https://www.statnews.com/2020/03/17/a-fiasco-in-the-making-as-the-coronavirus-pandemic-takes-hold-we-are-making-decisions-without-reliable-data/; https://www.economist.com/graphic-detail/2020/04/11/why-a-study-showing-that-covid-19-is-everywhere-is-good-news; https://www.theguardian.com/world/2020/apr/17/antibody-study-suggests-coronavirus-is-far-more-widespread-than-previously-thought; https://jamanetwork.com/journals/jama/fullarticle/2764824
Also criticisms of previous modelling methodology of the Imperial team: https://www.research.ed.ac.uk/portal/files/14288330/Use_and_abuse_of_mathematical_models_an_illustration_from_the_2001_foot_and_mouth_disease_epidemic_in_the_United_Kingdom.pdf;
And I point to evidence of the efficacy of the Swedish approach: https://www.aol.co.uk/news/2020/04/19/coronavirus-stockholm-could-have-herd-immunity-by-next-month/?ncid=webmail&guccounter=1; and that questions the effectiveness of lockdowns in containing spread: https://www.dailywire.com/news/israeli-study-suggests-lockdown-has-no-effect-on-coronavirus-timeline-say-israeli-space-agency-chair.
While there is clearly a scientific debate, the degree of uncertainty of the evidence justifying such grave impositions on fundamental rights and so damaging (in other ways)is an important consideration in determining whether they are the least restrictive that are proportionate.
I go onto argue that the government has unreasonably fettered its discretion through the five tests that must *each* be met before these restrictions are loosened, with no express or implied consideration of whether they are the least restrictive proportionate for the objective.
I conclude, applying the Siracusa tests, that the Regulations are not proportionate, particularly given the lack of democratic scrutiny while they themselves impose unprecedented restrictions on the mobilisation of political opposition.
My thanks to @JonathanMetzer for hosting and editing me at the UKHR blog and to @colmocinneide and @RobertCraig3 and others for their suggestions and corrections to earlier drafts (all views and errors are mine, of course).
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