Is Lockdown 2 lawful?

Is Lockdown 2 lawful?


CategoryArticles, News Author Richard Harwood OBE QC Date

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 impose a second lockdown on England.  They prohibit persons from leaving their home unless they have a reasonable excuse.  They severely restrict the ability of persons to meet anyone who is not a member of their household.  Various outdoors activities are banned, such as most organised sport.  Numerous businesses and other premises are closed, including pubs and restaurants, cinemas and theatres, hairdressers, indoor and outdoor sports and recreation facilities, and most non-food retailers.

Public law principles

The regulations are secondary legislation, that is, they are made under the authority of an Act of Parliament, in this case the Public Health (Control of Disease) Act 1984.  Whether the powers in the 1984 Act are sufficiently wide to allow regulations which impose a lockdown of the country is being considered by the Court of Appeal in R(Dolan) v Secretary of State for Health and Social Care, the challenge having initially been dismissed by the High Court.  Lord Sumption in his Cambridge Freshfields Lecture on 27 October 2020 set out his view as to why the first lockdown regulations fell outside the scope of the Act.  This note does not trespass on that issue.

However where an Act of Parliament allows regulations to be made, the question may still arise whether particular regulations are lawful in the particular circumstances.  That is judged on entirely conventional principles of public, equalities and human rights law.

In public law Ministers are exercising a discretion in making regulations. They usually have a choice, but in making that choice, the decision making process must be lawful.  Five public law requirements obviously arise in making the lockdown 2 regulations:

(i)            They must comply with the requirements of the statute;

(ii)           Ministers must have had regard to relevant considerations, although the Court will allow a degree of judgment as to what is relevant and only criticise a failure to consider matters which necessarily ought to have been considered;

(iii)          Anything irrelevant must be disregarded;

(iv)         There must not have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter, which was material to the decision;

(v)          The Ministers must have sufficient information to be able to make the decision, and if not, they would be under a duty to obtain that information.

The decision making process

The decision to have a second lockdown in England was announced by the Prime Minister on Saturday 31st October in a press conference supported by slides presented by the Chief Medical Officer and the Chief Scientific Adviser.  As subsequently corrected by the government on 3rd November, the slides are here.  The two advisers were questioned by the House of Commons Select Committee on Science and Technology at 2.30 pm on 3rd November, the transcript of which is helpfully available.  The lockdown 2 regulations were made at 2.45 pm that day, were voted on by Parliament on 4th November and came into force on 5th November.  Various criticisms of the data were made in the House of Commons debate.

The evidence relied upon for the lockdown

Only four of the graphs were prospective in nature and related to potential future levels of deaths, hospital admissions or hospital bed occupancy due to Covid.  These graphs had been presented to the Prime Minister when he made the decision to proceed with the lockdown.[1] One set out a variety of ‘scenarios’ for daily deaths, which were said not to be ‘predictions or forecasts’.  One scenario, PHE-Cambridge, provided a mid-range peak of 4,000 deaths per day by December, with 1,000 deaths per day by the end of October.  By that time daily deaths were running at one fifth of that level.  Whilst the assumptions had not been published by the time the regulations were made, the various scenarios had been run ‘a couple of weeks’ earlier,[2] before tiered controls had been introduced in England.  It appears that there had been two subsequently available updates of the PHE-Cambridge scenarios, showing much lower numbers of deaths.  All of the scenarios had been based on an R rate[3] between 1.3 and 1.5 getting potentially 10% worse over winter.[4]  At the time of the 31st October decision the R rate was between 1.1 and 1.3 on a falling trend.[5]

On a conventional public law analysis, the ‘scenarios’ graph contained figures which were irrelevant considerations because they contained scenarios which had been superceded or which were significantly at variance with the more recent actual data.  Those latter errors could also be characterised as errors of fact.  There were also a number of matters which were necessarily relevant to a decision relying on those scenarios: that they assumed an R rate which was higher than was occurring and failed to factor in the tiered approach.  It is not apparent whether those relevant considerations were explained to the Prime Minister or, if so, how he was expected to deal with them when the graph was prepared on a different basis.  In his statement on 31st October the Prime Minister said that on the basis of the models ‘we could see deaths in this country running at several thousand a day’, projections which were only contained in the two scenarios which well in excess of the actual end of October daily deaths.  It also shows the significance which he was attaching to the highest figures in the graphs.

Before the Select Committee Sir Patrick Vallance and Professor Whitty placed more reliance on two other graphs which showed ‘six-week medium term projections’[6] which were a consensus of the modelling groups.  It is not apparent what modelling went into those projections.[7]  On 3rd November the government amended those two graphs ‘after an error was found in the interquartile ranges for SPI-M medium term projections’.  They showed an upper and lower range within which was a single line of a medium term projection.  The amendments reduced the top of the ranges from 1500 deaths per day by 8th December to just under 1000 deaths (matching the first wave peak) and for hospital admissions from 9,000 per day down to 6,100 per day.  The projection figure – the line – appears not to have been changed.  The amendment said ‘This does not affect the insights that can be taken from these analysis’ but did not elaborate.  The final graph, on combined projection bed usage was not amended.  The amendments were not mentioned to the Select Committee on 3rd November.  It is to be assumed that both the Prime Minister and his chief advisers were unaware of the errors when the decision was made to lockdown and the regulations were made.

So the medium term projections contained significant errors.  The upper ranges were a material part of the advice being given, as otherwise they would not have been presented to the Prime Minister or the public.  Those parts of the graphs which were erroneous were irrelevant considerations.

A decision which is based on irrelevant considerations will be unlawful.  In judicial review proceedings the High Court will not quash the decision if it is highly likely that the outcome would have been the same without the error, but that is a difficult threshold for a government to reach in any case.  The importance of the higher figures is apparent in the Prime Minister’s statement.

There is also the question of whether further information should have been considered about the effects of the proposed lockdown.  It is not apparent whether there were any analyses available to Ministers of the Covid cases, hospital admissions and deaths anticipated if lockdown was introduced.  Without those, the benefits of a lockdown would not be forecast.  Similarly no forecasts have been published of the effects of lockdown on other health, including mental health, or on the economy.  No impact assessment was published with the regulations.[8]

The Courts are prepared to give a degree of latitude to public authorities as to what matters they are required to take into account.  This is though constrained by legislation, both specific to these regulations and generally.

Proportionality under the Public Health legislation

The Public Health (Control of Diseases) Act 1984 section 45D(1) allows regulations to be made only where the Minister considers ‘that the restriction or requirement is proportionate to what is sought to be achieved by imposing it’.  That requires a judgment to be made about the effect of the prohibition and what it is anticipated that it will achieve.  The regulations contain the declaration that ‘The Secretary of State considers that the restrictions and requirements imposed by these Regulations are proportionate to what they seek to achieve, which is a public health response to that threat.’  That is oddly phrased, because it does not address what the ‘public health response’ would achieve.  It is not apparent whether or how the statutory judgment was reached.  Ministers made no mention of whether the measures were proportionate in the 31st October announcement or the House of Commons proceedings on 2nd and 4th November.  No material has been published on either the harms arising from the restrictions or the anticipated benefits.  It is not apparent whether Ministers formed the necessary statutory opinion, or if so, whether they had sufficient and accurate information available to do so.

The Equalities Act

The Equalities Act 2010, section 147 requires Ministers to have due regard to advancing equality of opportunity and fostering good relations between persons with protected characteristics and those without.  These characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.  The Courts have emphasised that the duty is on the Minister personally, it must be fulfilled in substance, and ought to be recorded.  Again, it is not apparent whether or how this was done.  There could potentially be impacts both positive and negative.  Reducing the incidence of Covid-19 could benefit older or some disabled people, conversely the lockdown provisions may harm those with mental illnesses, children and young adults deprived of sport, and persons of faith deprived of acts of worship.

The particular measures

The issues discussed above arise on the principle of a second lockdown.  Some also arise on the particular measures proposed.  Each element of the lockdown imposes restrictions on large numbers of people: closing down their business or place of employment; or restricting their social, leisure or health activities.  There needs to have been lawful consideration of all of the provisions, including as to their proportionality.

The Chief Medical Officer and the Chief Scientific Adviser told the Select Committee that they did not give advice on prohibiting specific activities such as children’s sports teams outside school.[9]  Professor Whitty said it would be ‘stupid’ and ‘very unhelpful’ for them to do so.[10]  The lockdown provisions were said to be packages put together by ‘policy groups’.[11]  It appears therefore that Ministers received no scientific or medical advice on the effectiveness of individual elements in reducing the infection rate and so were not able to judge whether the harm caused by those measures was proportionate to any benefits from them.

That suggests that there was insufficient information to lawfully reach a conclusion, including on the proportionality of the measures.

Human Rights

The lockdown provisions also affect many of the rights in the European Convention on Human Rights, in particular the rights to liberty and security (Article 5), respect for private and family life (Article 8), freedom to manifest religion (including in worship in community with others) (Article 9), freedom of expression, which includes the ability to meet others (Article 10), freedom of assembly and association (Article 11), the protection of property (Protocol 1, Article 1) and freedom of movement and freedom to choose where to reside (Protocol 4, Article 2).  These rights are qualified in that they may be interfered with in accordance with law if it is necessary for, amongst other things, the protection of health.   The court must confront any interference with a Convention right and decide whether the justification claimed for it has been made out, although it may give some latitude to the decision maker.[12]  Such a judgment will involve addressing the adequacy of the Minister’s consideration and asking whether the interference with human rights is rational and proportionate given the objectives to be achieved.[13]  Given the issues discussed above, there would be difficulties in concluding that the regulations accorded with the Convention and so with the Human Rights Act 1998.

Challenges to the Regulations

The lawfulness of the regulations could be challenged in two ways.

Firstly judicial review proceedings could be brought by a claimant alleging that the regulations are unlawful.  Secondly a defendant who was prosecuted for breaching the regulations could raise as a defence that the regulations are unlawful.[14]  If a fixed penalty notice is not paid then the Crown Prosecution Service may chose to prosecute, in which case the lawfulness of the regulations would be addressed some time after the current lockdown has ended.

Conclusion

Even if the government has the power to make lockdown regulations, there are, at the least, real reasons to doubt whether the decision on 31st October to impose a lockdown and the terms in which it was done on 3rd November were lawful.

 

[1] Select Committee transcript, 3rd November, Q1481 to Q1483.

[2] Q1460.

[3] The R rate is the number of persons infected by an infected person. If it is above 1 then the overall number of cases at any one time will continue to rise at an increasing rate.

[4] Q1509.

[5] See the slide ‘R estimates over time for the UK’.

[6] Q1435-Q1438.

[7] See Q1446-Q1452.

[8] See the explanatory note to the regulations.

[9] Q1537-Q1541.

[10] Q1541.

[11] Q1539.

[12] R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 at para 29 per Lord Kerr.

[13] Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39.

[14] Boddington v British Transport Police [1999] 2 AC 143; affirmed in Dill v Secretary of State for Communities and Local Government [2020] UKSC 20.


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