The Covid-19 Pandemic and Proportionality: A Framework
Clearly, we are living through an extraordinary period in human history. The rampant spread of Covid-19 has upended societies and economies. Its short-term effects have been dramatic and, in the medium-term and long-term, the virus may have profound consequences for all of us.
The bewildering speed of the virus is matched only by the bewildering speed of government responses, which span criminal, fiscal, monetary, privacy, regulatory and social policy. At once, new offences are being created, government money is being pumped into the world economy, central banks are opening their quantitative easing spigots, states and technology companies are combining to track the spread of the virus, health and safety requirements are being waived or rewritten, and we are all being urged to keep safe physical distances from others.
With so much happening — and so quickly — it is helpful to have an analytical framework to think about these responses. Proportionality is best known as a tool developed by courts to assess the legality of government action. But the four-pronged form it typically takes is also a useful analytical tool in our current, extraordinary circumstances. Note that proportionality is a tool, not a mathematical formula; an aid to analysis, not a machine which will spit out neatly packed answers to difficult questions; a means of better understanding value-laden policy issues, not of providing definitive resolutions.
First, define the objective of the government action and consider whether it is legitimate and important (or, “pressing and substantial” in some formulations). Fighting Covid-19 is, on any definition, an appropriate objective. But defining the objective is not straightforward: it could equally be “fighting Covid-19 without causing undue economic harm”. Depending on how the objective is defined, it will be more or less likely that the government action will be impaled on one of the other prongs.
Second, consider whether there is a rational connection between the objective being pursued and the means used to pursue it. For instance, is the closure of non-essential services and the confinement of people to their homes rationally related to the prevention of the spread of disease? Does the extension (or, in the Canadian case, the introduction) of quantitative easing serve the goal of keeping the economy on life support?
Third, ask whether the government action is necessary to achieve the objective. This third prong is generally more demanding than the second. In human rights cases, it requires a laser-like focus on whether government action minimally interferes with a protected right which stands in the way of achieving the objective. Even in cases — quantitive easing springs to mind — where no human rights are involved, as such, it is useful to ask whether there are alternative, less dramatic, means of achieving the government objective in question. In times of crisis, any government should be afforded a margin of appreciation, especially where there is a high degree of uncertainty about the spread of Covid-19 and its economic effects. Nonetheless, the necessity prong serves as a reminder that the citizenry has not cut government a blank check. Notably, necessity is also a common feature of frameworks for addressing emergencies: typically, legislation like Britain’s Civil Contingencies Act 2004 or Canada’s Emergencies Act features built-in requirements of necessity which governments must satisfy in order to invoke emergency powers. Government invocations of emergency powers are and should be, such legislation teaches, subject to careful scrutiny.
Fourth, balance the public interest sought to be advanced against the impact on individual interests. In other words, does the public interest in combating the spread of Covid-19 outweigh the significant interference with individual liberty caused by restrictions on movement (augmented, potentially, by the tracking via cellphone data of those who have or may have been exposed to the virus)? Does the need for additional hospital staff outweigh the risks of sending retired (and perhaps rusty) healthcare practitioners to the front lines of the outbreak?
The four-pronged proportionality test does not provide easy answers. As with cost-benefit analysis, it is a tool which assists in making value-laden judgement calls but which does not spare its users from making difficult decisions. Most importantly, the outcome of a proportionality analysis can shift over time as more evidence comes to light. In the current crisis, where human understanding of Covid-19 remains limited, it is critically important to keep a close eye on the evidence and update priors accordingly. Viewing the crisis through the lens of importance, rational connection and, especially, necessity and balance is an aid to understanding whether goverment counter-measures are an appropriate response to the pandemic.
This content has been updated on March 31, 2020 at 14:17.