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
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