February 8, 2021

Periods of society-wide threats are danger-times for rights. Anxious populations tend to accept restrictions on liberty which would be strongly resisted at other, more peaceful, moments. During the “War on Terror” which followed the 9/11 attacks, detention without trial, mass surveillance and torture were authorised by liberal democracies. We may be seeing that dynamic repeated today, as the legally enforced social-distancing restrictions put in place to slow the spread of Covid-19 raise some of the most difficult questions in modern times about life, liberty and the basic tenets of democracy.

Human rights law has built into it a deep scepticism of state power, particularly of the untrammelled variety, and so it is a useful lens through which to consider lockdowns. After the Second World War, human rights laws were created to ensure that even during those danger times certain basic rights were protected. But the basic psychology of threats and emergencies remain.

So let us consider a year of Covid-19. Twelve months ago, the first two cases of Covid-19 were confirmed in the UK. Fifty days later, on 23 March, the Prime Minister announced that he would “give the British people a very simple instruction — you must stay at home”. Three days after that, the first set of emergency lockdown regulations arrived. These were undoubtedly the most severe restrictions on liberty imposed in peacetime, and Health Secretary Matt Hancock reportedly described them as “Napoleonic”. “In lockdown”, he told the Cabinet, in a reversal of the usual principle of English law that whatever is not explicitly prohibited is permitted: “people would be forbidden from doing anything unless the legislation said, in terms, that they could”.

It is extraordinary that restrictions which a judge described as “possibly the most restrictive regime on the public life of persons and businesses ever”, could be made without prior Parliamentary scrutiny. But it took just 11 pages of law and one signature for Matt Hancock to impose the 26 March lockdown, which came into effect the moment he put down the pen.

Those 11 pages closed all non-essential businesses, meaning that people could only leave their homes if they had a “reasonable excuse”, and largely banned gatherings between people not of the same household. Any breaches could be punished. The police were also given power to take “such action as is necessary” to break up gatherings or ensure business closed.

That first lockdown — all 11 pages of it — was, in fact, stricter than the two that followed. The current lockdown law is over 120 pages, and a long list of exceptions — involving bubbles, animal welfare, picketing and “death bed visits” — have been added to the (deceptively) simple edict to stay at home. The rules for businesses have become more complicated too. 64 sets of regulations have followed the first, all using the same emergency procedure. And while the severity of social distancing measures has ebbed and flowed, at no point have they been entirely withdrawn. It is therefore possible to argue that lockdown has never ended, just changed shape.

Indeed, the meaning of “lockdown” remains elusive. It is generally understood as not being able to leave our homes except in limited circumstances. But there are other measures, such as non-essential business and school closures, and bans on gatherings, which some people, and the government, consider part of “lockdown”. There are also the self-isolation rules which became legal requirements at the end of September. These are stricter than the lockdown rules themselves, allowing for leaving home only in emergencies

Some of these measures have a long history. The Old Testament contains rules for individual quarantine. City-wide institutional restrictions were developed to prevent the spread of plague in the Middle Ages. In his 1665 diary of the Plague, Daniel Defoe records measures to prevent public and private gatherings, feasts and begging. Curfews and travel bans were also enacted. During the 1918-1920 Spanish Flu pandemic, American cities prohibited public gatherings, and closed schools, churches and theatres with varying degrees of success.

But the idea of city or even nationwide lockdowns is of recent vintage. The 2002-4 SARS outbreak led to city-wide restrictions and a guarded quarantine of a housing estate. Mexico imposed a national lockdown to contain the 2009 Swine Flu outbreak. And national lockdowns were imposed in Sierra Leone to control Ebola in 2013 to 2014. The Sierra Leone lockdown was criticised at the time for being heavy-handed, causing food shortages and driving social activity underground. The reality is that, prior to Covid-19, large-scale lockdown had been rare and their efficacy unproven.

So have Covid-19 lockdowns been justified? Were they worth it? And at what cost? These crucial questions, after a year spent in stasis, have become highly politicised — and so even harder to answer.

The starting point must be the indisputable seriousness of Covid-19, a once-in-a-century virus. It spreads easily and in many cases asymptomatically, has a relatively high fatality rate which, when combined with excessive transmission, has already led to over 100,000 deaths in the UK alone. It also causes lasting damage in some survivors. If it is allowed to move through the population at speed, there would be too many serious cases for hospitals to manage.

To put it bluntly, this is as serious a pandemic as the modern world has faced. It therefore requires the kind of restrictions to limit social contact which we have seen during other plagues, such as the quarantine of infectious individuals and gatherings bans. After 10 months of restrictions it appears that the three separate periods of lockdown have assisted in bringing transmission rates under control and saved lives — although the range of measures makes it difficult to know exactly which will work. This is one of the most difficult apects of assessing lockdowns; we cannot say for sure which measures will work and why. And because of the many psychologies of populations experiencing a pandemic, some measures may work in a particular place and time, but not elsewhere and later.

The next question is what restrictions on other liberties, such as preventing ordinary family interactions or stopping children attending school, can therefore be justified and if so to what extent. In human rights law, a number of rights, such as to family life, free speech, peaceful enjoyment of property and education, may be interfered with but only if the interference is for a legitimate reason and is proportionate to the end sought — in other words, is no more than is necessary.

Even if certain lockdown restrictions are proportionate, that does not mean they all are, or that they can be allowed to become permanent. There are three main areas of concern.

First, some lockdown measures work but they have serious knock-on effects including a shrinking economy (which itself causes higher mortality), delayed cancer treatment and surgery. The move to online education has most severely affected those from lower socio-economic groups. While this doesn’t negate the need for restrictions, it illustrates how damaging they can be and why they must only be used for as long as necessary and no longer.

Second, the method by which lockdown has been imposed in England borders on anti-democratic. There may have been justification in March for using emergency procedures to bypass Parliament but there has not been since. The most severe legal restrictions on liberty require the gold standard of democratic accountability, not a rushed procedure which side-lines Parliament. This has likely led to illiberal outcomes, for example the explicit allowance for protest being removed in early December, meaning that it is unclear whether socially-distanced outdoor protests are a criminal offence or not.

Protest is the lifeblood of liberal society; in a democracy its legality should never be in doubt. It appears the same democratic deficit will apply to the incoming hotel quarantine rules, which involve detaining potentially thousands of citizens. Such an important law should be properly scrutinised.

Third, the lockdown laws themselves have become overly-complex, poorly communicated and almost impossible for a non-lawyer (including the police) to digest. Guidance and law have become elided by both politicians and public, leading to wrongful enforcement and widespread confusion. Then there are the exceptions. On one level, it is positive that exceptions have been added to allow for the many vicissitudes of human life, but they have been at the expense of simplicity.

So we have to ask: have our lockdowns been strict enough to be worth it? This raises something of a paradox from a rights perspective. The UK has one of the highest death rates in the world. Is this because our lockdowns have been too late and too loose, particularly in their later iterations? Might our looser lockdowns, taking into account their collateral damage, been all sound and fury without accomplishing very much, and might stricter, earlier lockdowns have been more justified?

The question of whether lockdowns have been proportionate is a tricky one. But there is an urgent question for the coming weeks. If the vaccination drive works as planned, and those who are most likely to die from Covid-19 are vaccinated by Spring, the proportionality of lockdown measures will shift. If rates of serious illness and death from Covid plummet, then the justification for general restrictions on liberties will diminish. This will, of course, also depend on whether new strains emerge which are vaccine-resistant.

But hard questions will need to be asked as to what to do next, and it will require a rights-based approach to resolve. It is essential that we don’t enter a semi-permanent state of emergency laws and basic rights switched on and off by the government at will and without democratic scrutiny. Lockdowns may have been necessary, but we cannot be locked down forever.