The initial justification for lockdown
The English lockdown was introduced through the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, made under the Public Health (Control of Disease) Act 1984.
Under section 3 of the Human Rights Act 1998, delegated legislation must comply with the European Convention on Human Rights (ECHR). Article 5 permits deprivation of liberty for the prevention of the spread of infectious disease.
The Government justified the initial restrictions by stating that Covid‑19 posed a “serious and imminent threat to public health”. Given the unprecedented nature of the pandemic, this justification was lawful and proportionate. Lockdown was necessary to gather information, prevent the NHS from being overwhelmed and allow rational decision‑making. At the outset, the restrictions were justified.
Human rights concerns today
The Government has stated that the UK is “past the peak” of Covid‑19. The R‑rate has fallen to approximately 0.75, and the initial aim of preventing NHS overload has been achieved. The Government’s original slogan emphasised “protect the NHS”, but this element has now been dropped. This shift raises fresh human rights concerns.
Critics such as Francis Hoar argue that the lockdown disproportionately interferes with Articles 8, 9 and 11 of the ECHR. Article 8 protects private and family life. Article 9 protects freedom of thought, conscience and religion. Article 11 protects freedom of assembly and association. Restrictions on visiting family, attending places of worship and meeting others engage these rights.
When fundamental rights are restricted, the proportionality test applies. The four‑stage test requires that restrictions pursue a legitimate aim, are rationally connected to that aim, cannot be achieved by less intrusive means and strike a fair balance between competing harms.
The first three limbs remain satisfied. The restrictions pursue a legitimate aim, are rationally connected to reducing transmission and cannot realistically be achieved by alternative measures until vaccination or herd immunity is possible. The fourth limb, however, is no longer satisfied.
The balance of harms
The initial justification for lockdown was to prevent catastrophic NHS overload. That catastrophe did not occur. Predictions relied upon early modelling that has since been criticised. The harm to individual liberty now outweighs the harm posed by Covid‑19.
Covid‑19 has caused tragic loss of life. However, lockdown was never designed to eliminate infection. Its purpose was to slow transmission to protect critical care capacity. Lives will be lost in any pandemic, regardless of policy. Vaccination is the only measure capable of preventing death, and its development remains uncertain.
The NHS has been protected. Nightingale hospitals more than doubled critical care capacity, yet treated only around one hundred patients. At the height of the peak, forty‑one per cent of acute beds were unoccupied. The justification for lockdown has therefore expired.
Lord Sumption argues that managing personal health risks is the responsibility of individuals, not the state. If Covid‑19 is likely to remain for a long time, lockdown merely delays the inevitable moment when society must learn to live with the virus.
The societal counterargument
Jonathan Compton argues that allowing individuals to decide whether to go out risks a surge in the R‑rate that could disrupt supply chains. This argument can be mitigated. Those who wish to go out should be permitted to do so. Those who wish to remain at home should be able to continue shielding. Essential deliveries could be prioritised for vulnerable individuals.
The factual basis of the societal argument is also questionable. Covid‑19 is not a prevalent killer of those under sixty‑five without serious underlying conditions. Research by Professor Sir David Spiegelhalter suggests that the risk of dying from Covid‑19 is similar to the underlying annual risk of death.
Concerns about a second wave rely heavily on comparisons with the 1918 Spanish Influenza pandemic, which had a mortality rate of around two per cent and occurred in a vastly different medical and social context. COVID-19 has an estimated mortality rate of approximately 0.3 per cent. Spanish Flu disproportionately affected the young and healthy, whereas Covid‑19 disproportionately affects older individuals, those with underlying conditions, those who are overweight and those from BAME backgrounds.
The risk posed by Covid‑19 does not justify restrictions of the current magnitude.
Social contact and mental health
Human beings require social interaction. Prolonged isolation damages mental health. Risk is inherent in all social contact. Research from Stanford University suggests that for individuals under sixty‑five, the risk of dying from Covid‑19 is comparable to the risk of dying while driving approximately 185 miles per day. This level of risk does not justify national lockdown.
The economic consequences of lockdown will be severe. Although life and money should not be equated, economic damage disproportionately harms the poorest. Poverty kills. The long‑term economic impact may cause more harm than the virus itself.
Minimal changes to lockdown
The Government’s recent changes to lockdown have been minor. Despite significant anticipation, the relaxation did not go far enough. As Tom Hickman notes, the changes largely benefit middle‑class activities such as picnics, tennis, golf, garden centres and house buying.
Outdoor sports courts may now open. Garden centres and council recycling sites have reopened. People may leave home for open‑air recreation to promote physical or mental health. These changes are limited.
Many of the Government’s announcements emphasised changes that were not changes at all. Unlimited exercise was always permitted in England. Driving for exercise was always lawful. Going to work when necessary was always allowed. Golf was never prohibited. The Government has emphasised continuity as change, creating an impression of relaxation that does not reflect reality.
The two‑metre distancing rule has never been law. It is guidance, not a legal restriction.
Conclusion
Lockdown has lasted more than sixty days. The original justification has expired. The balance of harms has shifted. Once necessary restrictions are now disproportionate. Individuals should be permitted to assess and manage their own risk. Liberty should not be restricted without compelling justification.
May we be healthy. May we be free. May we enjoy the basic rights of private individuals.
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