Covid-19 and the health protection regulations – proportionality, deference, and intensity of review (Lee Marsons)

Lee Marsons (@LeeGTMarsons) is a GTA in public law and PhD candidate at the University of Essex. He is also co-editor of the blog of the UK Administrative Justice Institute (UKAJI).

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made under s.45C of the Public Health (Control of Disease) Act 1984. In an illuminating post, Lord Anderson – the former Independent Reviewer of Terrorism Legislation – considered a potential concern arising from the use of s.45C that may render the Regulations ultra vires. By contrast, in this post, I follow Jeff King and Paul Daly by addressing the proportionality of these measures – a condition precedent for their lawfulness under both the Human Rights Act 1998 and s.45D of the 1984 Act itself. In addition, there is an equivalent condition contained in Schedules 18 and 19 of the Coronavirus Act 2020, under which the Northern Irish and Scottish Regulations were made. Particularly, I want to outline what I think the approach of the courts should be in a proportionality challenge to these Regulations. I suggest that, despite the undoubtedly serious rights implications, the courts should be wary about interfering with executive assessments of necessity in this context, involving as they do complex medical predictions in which the judiciary have no obvious expertise, skill, or resources, at least when compared to those who advise the executive. I make no prediction that this will be the outcome should a challenge arise and I do not deny the existence of reasonable alternatives. Nevertheless, I hope that my initial thoughts provoke a wider debate about the appropriate intensity of judicial scrutiny and the degree of judicial deference towards the executive in this difficult matter.

I adopt the basic framework adumbrated by Daly – that proportionality is a four-pronged analysis involving consideration of the legitimacy of governmental aims; the connection between state action and those aims; the necessity of any measures, insofar as less restrictive but equally effective alternatives might exist; and fair balance between individual rights and the public interest. For the reasons given by King, I take it for granted that the first two stages – legitimate aim and rational connection – are satisfied. The protection of the rights to life and health of the elderly, medically vulnerable, and the country at large, and the protection of safe working conditions for NHS employees, are undoubtedly compelling objectives. In addition, given the means of virus transmission, the compulsory enforcement of social distancing and isolation plainly has a rational connection to that aim. Necessity and balance – which as Lord Sumption noted at [20] in Bank Mellat, will often involve overlapping considerations – will be where the contestation lies.

In terms of judicial attitude to these questions, according to Mark Elliott, nowadays English courts adopt an approach of calibration in judicial review, no matter the particular doctrine in issue. That is, the court examines the factual and legal context – such as the rights involved, the public interests at stake, and the court’s expertise in the subject-matter – and makes a determination as to how far the court should form its own conclusions and value judgements independently of the primary decision-maker. As Lord Reed put it at [117] in Pham:

[P]roportionality is not a monolithic principle, expressed and applied in a uniform way…In particular, the intensity of review…depends on a variety of factors, including the nature of the right which is involved, the seriousness of the interference with that right, and the nature of the justification for that interference.

It is also worth reiterating the words of Lord Kerr in Keyu at [272]:

[R]eview based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision-maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense.

In sum, these measures need not be the best ones available or the most liberty-protective measures, and certainly need not be measures that judges or lawyers themselves actively agree with. They merely need to be justifiable according to the appropriate legal standard, and I want to briefly explain what I think that standard should be.

Here, we are concerned with at least the right to freedom of assembly and with a restriction on ordinary liberty of movement for the entirety of the country. On any view, serious restrictions. But I think these are only the ‘surface’ rights at stake and I would add other interferences that have only become evident a couple of weeks into the lockdown:

Thus, the lockdown involves significant interferences with multiple important rights, which the state may well have a positive obligation to defend (e.g. domestic violence and Articles 2 and 3). However, in my view, if government has positive obligations here, these should be resolved through specific alterations and should not involve throwing the baby out with the bathwater i.e. finding the entirety of the scheme to be disproportionate, rather than its application in a few cases. A specific scheme to house and protect victims of domestic violence during this time may be well advisable, for example.

In any event, I do not regard any of these things as determinative individually or cumulatively because, on my assessment, there are a whole range of factors which support treating this as a context where courts should be cautious about interfering with executive judgements of necessity and balance:

  1. The particular impact of Covid-19 on the elderly and medically vulnerable who may have difficulty protecting themselves without robust state intervention. In addition, there appears to be a gendered pattern in Covid-related deaths, with men disproportionately dying. This impact of the disease on a range of protected characteristics (age, disability, and sex) could conceivably make the case for robust, precautionary state intervention stronger;
  2. The consistent global action comparable to the UK’s, meaning that a court cannot identify the UK as having reacted in a comparatively excessive way, particularly according to Council of Europe standards;
  3. Each executive in the devolved administrations has imposed comparable – albeit slightly distinct – restrictions, despite ordinarily being political foes;
  4. The lethality and infectivity apparently being higher than standard influenza;
  5. The novel nature of the disease, which may justify an immediate precautionary approach even if that approach eventually seems over-reactionary with perfect hindsight;
  6. The fluid nature of the situation, with predictions of infections and deaths constantly changing as behaviours change;
  7. The importance of early and rapid containment;
  8. The fact that even medical experts disagree among themselves about protective measures – even whether it is useful to wear face masks;
  9. The lack of a vaccine;
  10. The possibility of a second winter peak;
  11. The need to prevent the NHS becoming overwhelmed by both Covid and non-Covid cases, thus ensuring its sustainability for future generations as well as in the immediate term;
  12. The fact that the WHO has declared the virus a pandemic and supports lockdown-type measures;
  13. The limited nature of essential equipment, such as ventilators and personal protective equipment (PPE), making it a pressing necessity to ‘flatten the curve’; 
  14. The fact that government policy appears simply to be following its medical officers;
  15. Evidence that the initial distancing advice was not being followed to a maximal degree;
  16. Evidence that the lockdown is already beginning to lose force, with an increase in road and Tube travel from the end of March;
  17. The lack of judicial expertise in assessing medical necessity during a pandemic, at least when compared to the expertise available to the executive; and
  18. The cost of incorrect action in terms of lives, health, and money could be very high, suggesting that the ultimate arbiter of necessity should be politically accountable and removable (i.e. not a judge).

There are important statements of principle to be drawn from Lord Carlile for this argument, which, as readers will recall, concerned the Home Secretary refusing to allow the entry into the country of an Iranian dissident based on Foreign Office advice, despite British parliamentarians wishing to meet that dissident. This, it was said, was a violation of the parliamentarians’ political speech rights. At [32], Lord Sumption suggested that: ‘The executive’s assessment of the implications of the facts is not conclusive, but may be entitled to great weight, depending on the nature of the decision and the expertise and sources of information of the decision-maker or those who advise her.’ I think this is a paradigm case of that. The executive uniquely has access to leading medical advisors (notably the Chief Medical Officer, the Chief Nursing Officer, NHS England, and Public Health England) – at least far superior to any expertise that the judiciary could muster – and the decision-making of the executive appears to be in conformity with that advice. Indeed, there have not been great public protestations from the government’s medical advisors that it is imposing unnecessary restrictions.

In this respect, Lord Sumption’s words at [46] feel uncanny:

Having received what was on the face of it a reasoned professional assessment of the consequences of admitting Mrs Rajavi, it is difficult to see how she could rationally have rejected it. This court is no better and arguably worse off in that respect than she was. We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take.

Similarly, for a court to reject the medical advice being offered to the executive and to presume to declare it disproportionate on a more optimistic alternative assessment (either of their own or of a challenging party), would, I think, be an extraordinary course of action that would exceed a reviewing function. In any event, there is no legal need for the court to reach such a conclusion – statements of principle in cases such as Carlile provide the courts with a justifiable alternative, one that is more cautious and, to my mind, more sensible. I add that my view might – though would not necessarily – be different if the executive pursued actions entirely or largely unrelated to its medical advice. For instance, the Health Secretary suggested on 5th March that all outdoor exercise could be prohibited if parks and beaches continued to stay busy. I wonder if this could ever sensibly be the view of medical advisors given the importance of outdoor exercise to physical and mental health, though I would not rule it out if it proves difficult to contain the virus, if deaths exceed expectations, or if a second winter peak occurs.

In addition, at [32] Lord Sumption added:

[R]ationality is a minimum condition of proportionality, but is not the whole test. Nonetheless, there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment. This is particularly likely to be true of predictive and other judgmental assessments, especially those of a political nature. Such cases often involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically.

Now, this is not a political assessment, but a medical one. However, I think the same principle might sensibly apply. Given the continually changing nature of the situation, the complexity of medical modelling, and the difficulty in making accurate predictions as to human behaviour and the activities of the virus, this is a context where the courts should be exceptionally cautious before second-guessing the executive assessments stemming from the best available medical advice. As his Lordship put it:

[W]here the justification for a decision depends upon a judgment about the future impact of alternative courses of action, there is not necessarily a single “right” answer. There may be a range of judgments which could be made with equal propriety, in which case the law is satisfied if the judgment under review lies within that range.

To my mind, we are in such a scenario. Predicting and modelling virus transmission based on contestable assumptions about human and viral behaviour is pre-eminently an area where a single right answer is evasive, if not non-existent.

For these reasons, my preference – and I hope the preference of the courts – would be to give the executive a considerable, if not decisive, margin of appreciation in determining the appropriate restrictions to impose. As Lord Sumption put it at [32]:

[I]n a democracy a person charged with making assessments of this kind should be politically responsible for them. Ministers are politically responsible for the consequences of their decision. Judges are not. These considerations are particularly important in the context of decisions about national security on which…the cost of failure can be high. It is pre-eminently an area in which the responsibility for a judgment that proves to be wrong should go hand in hand with political removability.

We are (probably) not in a national security context here (though that depends on how this situation unfolds), but we are definitely in a difficult public health one. The costs of wrong decisions and bad policy – such as restrictions being lifted too early individually or entirely – could be significant, in terms of human life, human health, and in purely pecuniary terms. This is especially so when the effectiveness of these measures is only optimal cumulatively, only when taken together as a general complementary scheme. Knocking one domino may cause the rest to fall, leaving societal defences on the ground.

Speaking for myself, I would prefer the executive to be entrusted to make these judgements based on medical advice and possibly its own assessments of human behaviour, and for the courts to be very cautious before interfering with those assessments. All in all, if a court wishes to uphold these Regulations – if it wishes to have a legal hook on which to hang this opinion, as Lord Carnwath would put it – I think that it would have multiple hooks made of durable material. My preference would be for the courts to accept that in this extraordinary, complex, and fast-moving situation, the assessments of the executive as advised by its medical officers should carry significant – indeed, for me, decisive – weight, both because comparatively the court only has a limited capacity to make these assessments and because the costs of failure are sufficiently high for political accountability and removability to be at least important, if not essential.

My thanks to Jeff King, Lord Anderson of Ipswich, Maurice Sunkin, and Paul Daly for their comments on an earlier draft of this post.

This content has been updated on April 6, 2020 at 13:21.