The First English Coronavirus Lockdown and the Right to Liberty (Article 5 ECHR).

Author: Eduardo Baptista

1. Introduction

The right to liberty is a crucial right in democratic societies and, as a result of the unprecedented situation caused by the SARS-CoV-2 virus (hereinafter referred to as “coronavirus”), one which should be subject to careful scrutiny. The stringency of the measures adopted require them to be justified, in order not to set a dangerous precedent that exceptional circumstances allow for unjustified stringent measures. It is true that there have seldom been public health situations of this magnitude, but it remains essential to make sure legislation complies with fundamental rights; these rights remain relevant even in cases of crisis.

In England, the first lockdown measure requiring that citizens stay at home, The Health Protection Regulations, warrants a close analysis. This statute was in place from the 26th of March 2020 until the 4th of July 2020, day in which it was revoked. In this context, Regulation 6 established a strict restriction on movement, namely that no person could leave the place where they were living without a reasonable excuse. This inextricably engages the right to liberty and it is relevant to consider its formulation in the European Convention on Human Rights (ECHR), one of the main documents protecting fundamental rights. This research paper will seek to answer the following question: How far was the movement restriction imposed by Regulation 6 compatible with the right to liberty as laid down in Article 5 ECHR? Given the recency of the situation, the aim of this paper is to contribute to the scarce existing literature and to the lack of consensus found therein.

Article 5 ECHR is fundamentally concerned with the “physical liberty of the person” and it is violated when there is an unjustified deprivation of that liberty. The structure of this paper will, consequently, follow this twofold component. First, it must be ascertained whether, in the present case, the movement restriction amounted to a deprivation of liberty (Section 2) and, second, whether this deprivation was nonetheless justified with reference to the public health justification found in Article 5(1)(e) ECHR (Section 3). For each of these Sections, a description of the relevant requirements will be followed by their application to the case. Finally, in Section 4, this paper will reach a conclusion on the extent of the compatibility, based on the relevance and number of requirements that are fulfilled in each part of the twofold component of Article 5 ECHR.

To the foregoing ends, a doctrinal analysis and a self-contained approach, accompanied by references to scientific data when appropriate, was followed. In particular, the discussion in Section II will be centred on case law, given the abundance and completeness of cases outlining the requirements for a deprivation of liberty. Conversely, mostly academic sources will be considered in Section III, expanding on the requirements imposed by Enhorn v Sweden, the only instance in which the public health justification has been considered by the European Court of Human Rights (henceforth “the Court”).

2. Deprivation of Liberty

The starting point for the finding of a deprivation of liberty is the individual’s concrete situation; the Court will, holistically, consider a number of factors on a case by case basis. It must be borne in mind that the degree to which people were affected by the movement restriction differed from person to person. This does not, however, preclude the analysis of this paper, because the circumstances and some experiences were common to a large part of the population. With regards to the conditions of a deprivation, as the Court stated in Guzzardi v Italy, what must be considered is the “type, duration, effects and manner of implementation of the measure in question”. Furthermore, the notion of a deprivation requires both a subjective and an objective element. The former can only be established when a person has not “validly consented” to the deprivation and the latter includes factors such as the area of the confined space, “the possibility to leave the restricted area, the degree of supervision and control over the person’s movements, the extent of isolation and the availability of social contacts”. The subjective element is present, as there was no referendum or public consultation concerning the adoption of The Health Protection Regulations; acquiescence or failure to object can never amount to valid consent. Finally, it is important to mention that lockdown measures can prima facie amount to a deprivation of liberty, particularly given that this can take numerous forms. The factors weighing in favour and against the presence of the objective element will now be discussed.

A number of these factors suggest that the movement restriction amounts to a deprivation of liberty, the most conspicuous of which being its manner of implementation. The Government often gave advice contrary to Regulation 6 by, for example, saying that people could only exercise once a day despite this not being stated in the law. This led to “widespread confusion”, which opened the door to poor enforcement by the authorities. Many incidents were reported of the police inappropriately using its power. The Derbyshire Police, following the conflicting Government advice, used drones to film people on the street and shamed them by publishing the footage on twitter. The police also frequently stopped individuals to determine whether they had a “reasonable excuse” for leaving their home, although they did not explicitly possess this power to “stop and account”. Other police forces established online forms encouraging people to report on their neighbours, thus engendering an “atmosphere of mutual distrust and intrusive behaviour” in which citizens were monitored by the police and their neighbours alike. This last example is especially problematic in the light of the Court’s dislike for forms of constant or permanent supervision.

Another problematic factor is that individuals could be forcibly returned to their homes and the fact that this power was also granted to non-police persons; this power was very broad in that it could be exercised without a person having to be under arrest and there was no express requirement of reasonable suspicion. Not having a “reasonable excuse” and not complying with instructions to go home were considered criminal offences, with the amount to be paid doubling for each offence, up to a maximum of £960. Flowing from this, a single incident could result in a number of criminal offences. This threat of criminal charges could be considered as a coercive measure and thus an “aggravating factor”, which carries a lot of weight when considering a violation of Article 5. The last relevant consideration is the fact that the English were confined to their home, a relatively small space (in terms of square footage) in comparison with the spaces in the cases the Court has established a deprivation of liberty. To illustrate this point, the applicant in Guzzardi was confined to a space of 2,5 square kilometres, the ones in Khlaifia and Others v Italy were confined to a cruise ship and the ones in Austin and Others v United Kingdom to a large cordon in Oxford Circus; all of these spaces are much bigger than the average English home.

However, the elements pointing to the opposite conclusion cannot be ignored, although some are not irrefutable considerations. Firstly, the duration of the measure is not similar to the duration of measures which have been considered as deprivations of liberty. The relevant period that this paper considers is of about three months, which is not comparable to 16 months in Guzzardi and 8 years in Stanev v Bulgaria. Although it is the case that the majority of deprivations of liberty concern measures that span a lot of months, a short duration does not preclude the finding of a deprivation, as illustrated in Khlaifia and Others, wherein 9 and 12 days were sufficient to find a violation of Article 5. It is true that the applicants in that case faced harsher conditions, as they were “imprisoned” there, but it has been shown in the previous paragraph that the English population did not experience lenient conditions either. Secondly, the Court regards having been able to “maintain social contact with the outside world” as an important consideration. During the lockdown, individuals were undoubtedly able to do that; there were no rules prohibiting or limiting them from using their means of communication like in Guzzardi. In theory, an individual was still able to lead a “relatively normal life”, which is not an insignificant consideration. Lastly, in Austin and Others, the Court stated that there are “situations commonly occur in modern society where the public may be called upon to endure restrictions on freedom of movement or liberty in the interests of the common good”. It has been argued that the coronavirus is an instance of such a situation. However, the situations described in Austin and Others concerned “commonly” occurring ones, such as in the context of “travel by public transport or on the motorway, or attendance at a football match”; the unprecedented situation brought about by the coronavirus can hardly be described as common.

Taking all of the aforementioned factors in consideration, the arguments in favour of establishing that the movement restriction amounted to a deprivation of liberty are more convincing. In particular, it is worth highlighting the broad powers granted by the Regulations which, combined with the sometimes contradictory advice by the Government, led to a very stringent enforcement of the restriction. In addition, by reasoning analogously in relation to the Court’s case law, there are more convincing factors pointing to the same conclusion. Therefore, after having established that there was a deprivation of liberty, the assessment of whether this deprivation was justified under Article 5(1)(e) can be done.

3. Public Health Justification

The relevant justification for the deprivation of liberty in this case is the one found in Article 5(1)(e) ECHR, applicable “for the prevention of the spreading of infectious diseases”. Before considering what requirements it imposes, it is worth discussing whether it can be applied to healthy individuals or if its scope merely extends to unhealthy ones as in the case of Enhorn. In this seminal case, the applicant was HIV positive so this question did not arise, thus rendering the scope of the provision vague and unclear. The wording of the provision certainly does not preclude it from also applying to healthy individuals and, indeed, there are a number of normative considerations that corroborate this view. The first of these is the “underlying rationale (…) of allowing the effective mitigation of the risk posed by infectious diseases”. It is also the case that it is often impossible to know whether someone is infected, considering the feasibility of continuously testing the entire population. The mere fact that someone was in contact with an infected person or in a high-risk area could warrant restrictions applying to everyone. In truth, “measures seeking only to isolate infected persons, or even persons suspected of being infected, will sometimes be insufficient”.

Having determined the scope of the provision, a deprivation of liberty is only justified if it passes the double lawfulness test, meaning that it must be “in accordance with a procedure prescribed by law” and “lawful”. The former means that there must be a basis in national law, whereas the latter is a Court-created concept, wherein the principles of legal certainty and proportionality must be fulfilled. Section 3.1 will address all the requirements of the double lawfulness test except for proportionality, as this warrants its own discussion due to the complexity of the factors that need to be considered (Section 3.2).

3.1 Double Lawfulness Test

The deprivation of liberty that is being considered has a basis in national law (The Health Protection Regulations), so it is “in accordance with a procedure prescribed by law”. What is more disputed, however, is whether it fulfils the principle of legal certainty. This entails analysing whether Regulation 6 is foreseeable, in the sense of whether it is “sufficiently accessible and precise”. As the Regulations were published, they are accessible. As regards precision, in Section 2 it was mentioned that the law generated confusion as it was wrongly applied in practice. Nevertheless, that was of relevance when considering whether a deprivation of liberty took place and not in relation to the justification thereof, as a law can still be precise enough but wrongly implemented. Therefore, what ought to be examined is not the often conflicting Government advice but rather the Regulations themselves.

With this in mind, what constitutes a “reasonable excuse” for leaving home, as laid down in Regulation 6, has been considered problematic due to its vagueness; despite the fact that, for the purposes of understanding this term, it provides a non-exhaustive list of 17 meanings that it can have. If there had been an exhaustive list, this would have certainly prejudiced individuals in unique circumstances. This term, at the expense of unquestionable clearness, had to be broad enough to include a panoply of situations such as autistic children needing to occasionally leave home, or more common situations such as to fulfil a legal obligation, to attend a funeral and to access social services. If the legislator had tried to list all the situations possible, the list would have contained hundreds, if not thousands of examples, which would have manifestly impacted legal certainty. That is why the term “reasonable excuse” is desirable and was the right choice. In short, Regulation 6 is precise enough, as that term is the foundation on which the provision lies and as there are no other problematic expressions or phrases. This means that the deprivation fulfils the principle of legal certainty and is “in accordance with a procedure prescribed by law”. Having tackled the first part of the “lawfulness” criterion, the second part of it, that is to say the principle of proportionality, is what needs to be assessed next.

3.2 Principle of Proportionality

Proportionality entails the consideration of two main aspects: whether the disease is dangerous and whether the deprivation of liberty is the least restrictive measure that could have been used to sufficiently combat the disease. As a first consideration, the coronavirus posed a major risk to health during the relevant period considered by this paper, illustrated by the tens of thousands that died, with the peak of daily deaths occurring in mid-April. For the elderly and those with underlying health conditions, it was even more fatal, which is exacerbated by the fact that the virus can be easily and unknowingly transmitted to others. It is certainly more harmful than HIV, the disease considered in Erhorn, so it can be said that the coronavirus is sufficiently dangerous.

Moreover, implementing lockdown measures saved thousands of lives, according to multiple Imperial College’s projections. The available alternatives such as mass surveillance, targeted application and mandatory testing would have had their downsides, as every measure would have. Hoar, in his work, points to Sweden and its success in containing the virus despite it not having implemented a lockdown. In response, Keene argues that Hoar failed to take into consideration a number of relevant factors, namely the substantial difference in population density and in the number of single person households, and the fact that the mortality rate in Sweden is significantly higher than in its neighbouring countries; in truth, the country had “one of the highest death rates relative to population size in Europe”. What is of relevance is that the Government considered multiple alternative measures and deemed them to be insufficient, which it did in the present case. The Government cannot be faulted for using the margin of discretion that must be afforded to it in complicated matters involving public health.

Notwithstanding that science seemed to support the lockdown during that time, there was still some uncertainty due to the scientific evidence pointing to the opposite conclusion. A question that arises is, therefore, what the Government could have done faced with conflicting evidence. This can be answered with reference to the point that the lawfulness of the lockdown did not depend on the certainty of the evidence. The Government cannot be faulted for having had regard to the best scientific evidence available and for relying on expert advice, given that there was no manifest error and the Government had a certain margin of discretion. Faced with a deadly disease for which there was no single approach fully supported by evidence, the fact that it decided to adopt “a precautionary approach based on a worse case scenario” is completely unproblematic.

A final aspect of proportionality is the balancing that must be made between two interests: the individual’s legitimate right to liberty and the State’s equally legitimate need to contain the spread of the coronavirus and save human lives. Protecting and saving lives is the most important function of any government. They have both a moral mandate and a duty to do so, which must carry considerable weight in this balancing test. Furthermore, there is an economic side to this discussion: if someone contracts the coronavirus they may have to be hospitalized, which entails further costs and labour. If there are long-term effects, such as the inability to work, they may be entitled to a pension, in this way burdening the social security system. That person is also likely to transmit the disease, multiplying these costs as a consequence. In this view, although it is true that it is unpleasant for individuals to be restricted, what is more unpleasant is widespread death, particularly when it could have been mitigated. However, the opposing view should also be considered, namely that the benefits must always be balanced against the noticeable negative impacts the lockdown has caused due to the deprivation of liberty. These include the short-term impact on health (through the unwillingness or impossibility to seek medical advice) and mental health, and by the increase in domestic violence.

An individual cannot be asked to endure a stringent measure of this magnitude indefinitely, the temporary nature of it has to be ensured. The Health Protection Regulations contain such a temporal limitation, expiring after 6 months with the possibility of the movement restrictions being terminated sooner, but they were only in place for approximately 3 months. The State was diligent in continuously performing its obligation of reviewing the need of the measures at least once every 28 days. This was an ongoing guarantee that the individual interest was considered in the light of new developments constituting, therefore, an important safeguard against abuse by the State. For this period of time, it was acceptable to ask the public to stay at home for the common goal of public health. If the time frame had been substantially longer, on the other hand, this might have been different. In that trying period of time brought about by an unprecedented disease causing major repercussions, the State’s interest outweighed the individual one. From the preceding, it can be established that the deprivation of liberty was proportionate, fulfilling, in this way, the second part of the “lawfulness” criterion. This means that all the requirements of Article 5(1)(e) are met. As a result, the deprivation of liberty was justified in the present case.

4. Conclusion

The movement restriction imposed by Regulation 6 unambiguously engages Article 5 ECHR. After considering its twofold component, a conclusion can be reached as to how far the right to liberty was respected. Firstly, the movement restriction impacted individuals to a degree which crossed the threshold of a deprivation of liberty. It is true that this would depend on individual circumstances, but it can be said that, in most cases, the same conclusion would be reached. Secondly, it was shown that the deprivation of liberty was justified with reference to the public health justification under Article 5(1)(e) ECHR. In contrast, this would be less dependent on an individual assessment, as the measures and reasoning behind The Health Protection Regulations were the same for everyone. It follows that the movement restriction imposed by Regulation was fully compatible with the right to liberty. From this, some final considerations emerge.

It is reassuring that the right to liberty was not breached: exceptional circumstances did not entail unjustified stringent measures. In other words, the collective battle against the virus did not erode the individual’s central importance in a democratic society. Knowing that this crucial right was upheld, more confidence can be devoted to the public interest, which is essential in the fight against the coronavirus. In the end, the public is the sum of all the individuals. The collective goal of public health and the right to liberty are not strictly opposed; they should not be seen as irreconcilable. Being asked to stay at home or to temporarily bear a restriction on one’s rights is not an unreasonable demand, considering the devastating effects that the coronavirus has had. If we take a step back and consider the bigger picture, we are our brother’s keeper and we should act accordingly, knowing that our rights have been respected in the process. An analysis of this kind, that is questioning whether legislation complies with fundamental rights, should be done regularly. In this way, legislation that passes this test is legitimized and can settle citizens’ doubts, bringing the individual and the State closer together, whereas legislation that does not pass this test can be amended or otherwise replaced. It is only through this exercise that citizens can feel compelled to trust the democratic process and the measures that are passed by it. This would enable authorities to fight the coronavirus appropriately, which ought to be the focus of every society at this particular moment in time. As a conclusion of the work, it could be pointed out that further research is needed on the proportionality of not only this movement restriction, but also of subsequent ones that have come with additional lockdowns.

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