In 2001, an activist named Lois Austin was corralled into a police cordon—or ‘kettled’—for seven hours in Oxford Circus in London during a May Day demonstration. Austin challenged the actions of the police, and when her case reached the House of Lords it was ruled the authorities acted proportionately in the circumstances. Ms Austin’s rights were curtailed, the judges found, but only to the minimum degree necessary to achieve the legitimate goal of protecting members of the public in her vicinity.
When another activist named Jane Laporte was removed from a bus on her way to an anti-war protest in 2003, the same court ruled the police did not act proportionately in detaining her. The difference in this case was that Ms Laporte and her associates, unlike the crowd at Oxford Circus, did not pose a sufficient threat to public safety to warrant the intrusion on her rights.
These cases demonstrate how subtle the balance between safety and liberty is, and how alive to these subtleties the courts are. Our laws are our values, and it is as important a moment as ever to consider what these values are, and how they ought to be weighed against the threat with which we are faced.
The freedom to go about one’s life unmolested is protected under Article 5 of the European Convention on Human Rights. But it goes back far further than that. It was enshrined in Henry II’s Assize of Clarendon of 1166, and is protected by the writ of habeus corpus which emerged a century-and-a-half later. Like all rights it is qualified, but only for a few tightly circumscribed reasons.
The first is following a criminal conviction based on the (usually unanimous) verdict of a jury satisfied beyond reasonable doubt that a crime has been committed.
The second is at the hands of citizens or a police officer to prevent the commission of an imminent crime or breach of the peace. Laporte, discussed above, demonstrates the threat must be genuinely imminent, and Austin demonstrates the deprivation of liberty must be for as short a time as possible.
The third is when there is some existential threat—whether real or perceived—to which the government responds, usually using emergency powers. It is these measures, passed among collective panic or in the fog of war, which often induce shakes of the head and pangs of regret in hindsight.
Irish republicans were detained without trial during World War I in England, as were refugees from Axis countries (including many Jews) during World War II. Today, four or five suspected terrorists are subject to special orders confining them to their homes for most of the day and requiring them to wear ankle bracelets to track their movements. Such orders are subject to judicial oversight and independent review to ensure the loss of the suspects’ rights are proportionate to the public’s right to live in peace and security.
The emergency regulations which commenced in Britain on 26 March 2020 made leaving one’s home a criminal offence in the absence of a reasonable excuse. They have no judicial oversight, and are graver inroads to civil liberties than the laws put in place during the blitz of 1940-41 and the Spanish flu of 1918 which claimed more than 200,000 British lives. The rules have been relaxed, but the measures remain unprecedented.
Answering the question of whether the regulations cause the minimum possible interference to fundamental rights to achieve a legitimate aim requires us to first identify what the government’s aim is. This is, or was, to prevent the National Health Service from being overwhelmed. Assuming the best available data suggested this would occur and result in thousands of excess deaths which a lockdown might prevent, there is a strong case for saying the policy was proportionate at the beginning of the outbreak.
It is now clear the NHS will cope with the demands the virus will place upon it, a fact the government has implicitly accepted, having removed the reference to protecting the NHS from their messaging. ICU beds are at lower capacity than they normally are at this time of year. Two entire wards constructed to handle the expected overflow of patients have been closed due to low demand.
The government’s aim now is to reduce deaths to their lowest possible number. On its face this is a virtuous goal. But Britain’s civil libertarian tradition is to permit all but that which directly harms another. The British tradition is to allow risky behaviour from smoking to drinking alcohol to driving cars and eating sugar in the name of freedom and individual choice.
If an 85 year-old wishes to risk his life and see his family in his twilight days, he should be free to do so. Penalising a healthy young person for protesting or sitting in a park with friends tips the balance from the unjust to the absurd.
A proportionate response to the coronavirus would be to protect those the data show are at risk and wish to be protected and let the rest of the population go about their lives free of state interference. In the absence of an overwhelmed health system, there is simply no basis for imposing the gravest inroads to civil liberties in Britain’s history, even leaving the concomitant social and economic damage these measures will cause out of the equation.
Human rights do not cease to exist during a crisis. Indeed it is on these occasions they become most important. The government had the right to act as it did based on the information available to it when the virus arrived in Britain. Since then the situation has changed, and the government’s policy must change accordingly. Every hour British citizens’ rights are curtailed is another affront to a proud tradition of balancing rights and protecting distinctly British values.