Balancing Lockdown with Legal Freedoms in the UK - the Legal Response to COVID 19

Introduction

As COVID-19 began to spread across the world, the impacts of the recent pandemic, cannot be overstated. Deaths, economic downturns and job losses are just a few of the struggles that we as global citizens will have to grapple with in a post COVID-19 world. Balancing lockdown with legal freedom has been a major challenge in many parts of the world. How has the UK fared?

What is the legal basis of a lockdown or any other Corona virus action?

The Public Health (Control of Disease) Act 1984 contains broad but not unlimited powers to make regulations to protect health. One set of powers concerns international travel and the second set concerns the domestic incidence or spread of infection or contamination. The powers in respect of domestic cases include the power to impose restrictions or requirements in relation to persons, things or premises in response to, a threat to public health. This was used as the legal basis for the regulations that put into force the stay-at-home order announced by Boris Johnson on the 23 March 2020 in relation to COVID-19.

Emergency legislation known as the Coronavirus Act 2020 has been introduced by the government to help the country cope with the demands caused by the coronavirus outbreak.

The Act was introduced to Parliament on 19 March 2020, and passed the House of Commons without a vote on 23 March, and the House of Lords on 25 March. The Act subsequently received royal assent on 25 March 2020, giving the government the discretionary power to limit or suspend public gatherings, to detain individuals suspected to be infected by COVID-19, and to intervene or relax regulations in a range of sectors to limit transmission of the disease, ease the burden on public health services, and assist healthcare workers and the economically affected. 

Main elements of the act:

·        increasing the available health and social care workforce

·        easing and reacting to the burden on frontline staff – by reducing the number of administrative tasks they have to perform, enabling local authorities to priorities care for people with the most pressing needs

·        containing and slowing the virus – to manage the spread of coronavirus

·        enabling the death management system to deal with increased demand for its services

·        supporting people – by allowing individuals to receive Statutory Sick Pay from day one, and supporting businesses

How big is the impact on the UK economy and way of life?

The UK economy suffered its biggest quarterly fall since 1979, in the second quarter of 2020 by 20.4% across all sectors since the coronavirus pandemic began to have an effect. According to the official figures, 30% of businesses had temporarily closed or paused trading, with around 60% of businesses that continued to trade reporting a fall in incomes.

  However, the economy seems to have slightly recovered from the coronavirus pandemic in the three months to August, as the GDP grew 8%, With a relaxation in lockdown rules, and with the government's scheme, " eat out to help out ". https://www.cnbc.com/2020/07/08/uk-unveils-back-to-work-bonus-scheme-and-restaurant-discounts.html

Although, cases of Covid-19 have been growing exponentially in recent weeks as a second surge appears to be underway with the following effets:

·        The latest social impacts data released by the office for nationals' statics relate to the period 14 to 18 October 2020, shows that, around 7 in 10 (76%) adults were very or somewhat worried about the effect of the coronavirus (COVID-19) on their life right now; this has increased gradually since the end of the summer (64% over the period 26 to 30 August).

·       Adults anxiety scores remained at the highest since the beginning of April, and life satisfaction is at its lowest point.

How are the COVID-19 responses enforced?

Enforcing the restrictions puts huge pressure on police resources. There has been some confusion about what people are allowed to do, and over what the police should be doing to enforce compliance.

The legislation (The Corona Virus Act 2020) has given police and immigration officers powers to be able to manage the spread of the virus and maintain public order, but they are not empowered to enforce the government’s guidance where it is more demanding than the law. If police exceed their powers, they are vulnerable to judicial review.

The law should be clear to avoid confusion and increase compliance. The Government also needs to be clear about what is law and what is guidance. Yet, there seem to be cases of illegal enforcement by the police and criminal courts, including one case where a woman from York was convicted of a criminal offence that doesn’t exist.

What are the legal challenges in and to enforcement?

Before fines are issued to rule-breakers, police will first take a number of steps:

·        Engage with people to ask why they appear to be breaking the rules

·        Explain the law, stressing the risks to public health and the NHS

·        Encourage them to change their behaviour

·        Enforce by issuing penalty notices, only as a last resort

England has a very strict system called ‘the three tiers’ and it means that every area of England is now in one of three categories - medium (tier one), high (tier two) or very high (tier three), depending on the local infection rate. This is about to be superseded by a National lockdown.

With the tier system, the rules differ from tier to another, and some of the most extreme rules that needs to be followed for cities in tier three are:

·        You cannot meet anybody anywhere indoors who is not part of your household or support bubble, nor can you meet them in a private garden or outdoor venue such as a pub garden

·        You can meet up in groups of up to six people in parks, beaches, countryside or forests

·        Pubs and bars must close unless they are serving substantial meals. Alcohol can only be served as part of a meal

·        You are advised not to travel into or out of tier three areas, other than for work, education, youth services or caring responsibilities

·        Casinos, bingo halls and betting shops, adult gaming centres and soft play areas must shut

If you break the restrictions in your tier, you could get a fixed penalty notice (FPN), the COVID-19 equivalent of a parking ticket. Since March, around 19,000 have been handed out.

These now start at ￡200, rising to ￡6,400.

The most obvious way you will get a FPN is for breaching the "Rule of Six", by being in a larger gathering without good reason.

Large parties can be shut down by the police - with fines of up to ￡10, 000.and the police also can charge someone with a criminal breach of the Covid regulations. This been reserved for a tiny minority of cases where police believe people are deliberately ignoring the rules after repeated incidents.

How does it relate to legal freedoms?

The Act has a two-year time limit that may be shortened or lengthened by six months at ministerial discretion

Liberty’s Director Martha Spurrier said: “This new law is without doubt the biggest restriction on our individual and collective freedoms in a generation".

Ex-Supreme Court Judge, Lord Justice Jonathan Sumption also said: the emergency measures were “the most significant interference with personal freedom in the history of our country”.

Criticisms of the “Chinese solution” adopted by Italy – which was then followed by other countries in Europe – have come from both sides, national and international. Indeed, as comments by Professor Martin J. Bull from the London School of Economics make clear, the main concern was that the lockdown had denied citizens “even the right to fresh air” and went against “the principles of personal liberty and freedom of movement enshrined in the Constitution”. However, as also highlighted in the same blog post, the very Italian constitution allows limitations to freedom in case of emergencies.

In simple terms, walking down the street and, accidentally or intentionally, bumping into someone else is already a formal violation of the definition of democratic freedom. The Covid-19 era is a historic moment in which, according to how democracy is formulated, the sole freedom allowed is the one “to survive”, is the one “to biologically persist”. The right to life is indeed well-recapitulated by several articles of the Italian constitution, including art. 13, 27 and 32. It is truly democratic.

Conclusion

Instead of blaming the institutions, media and citizens should understand that what they call “freedom” is an elastic concept, whose edges, especially in democratic terms, are really flexible. In pandemic times, such edges may eventually be taken to the extreme.