As Parliament gets back to work today after its five-week adjournment, we believe it is important to put the lockdown regime on a stronger legislative footing. This is important because the health of our constitutional processes is important, as is the health of our citizens. This is also important as it reduces the possibility that the lockdown response will be involved in distracting legal challenges. However, as with most good things, there is a “but”. In an article just published on the UK Constitutional Law Association website, we raised some questions about the formal legal basis of the lockdown. Those with a penchant for public counsel can read these views in their entirety. For the most normal of you, our brief argument is this. In China, press reports report an increase in domestic violence in quarantine. Crises – and lockdowns – can lead to domestic violence for reasons such as increased stress, cramped and harsh living conditions, and failures in community support mechanisms.
Crises can often further limit women`s ability to escape violence and place victims in environments without adequate access to services, such as safe haven from perpetrators and accountability for violence. We recognize that the government is aware of these kinds of concerns and has taken good steps to try to address them. The orders that set our containment level are well designed and formulated. And the Office of the Attorney General`s paper, which outlines the legal issues associated with transitioning to the third tier, shows a commendable examination of the relevant legal challenges. Any claim that the government simply does not care what the law requires of it is neither true nor fair. The UK has passed hundreds of laws in response to the coronavirus pandemic. Many of these laws could be called “lockdown laws.” In this briefing, the term “lockdown law” specifically refers to coronavirus-related restrictions on movement, gatherings, and restrictions on commercial operations on main streets. Governments should avoid deep and overly broad restrictions on freedom of movement and individual liberty, and should only adopt binding restrictions if scientifically justified and necessary and if mechanisms can be put in place to support the persons concerned. According to a letter from more than 800 health and legal professionals in the United States, “voluntary self-isolation measures [combined with education, widespread testing, and universal access to treatment] are more likely to induce collaboration and protect public trust than coercive measures, and are more likely to prevent attempts to avoid contact with the health care system.” Governments seeking to contain the spread of the virus should assess and, if necessary, modify immigration enforcement measures during the period of the outbreak, including court hearings and authority checks as an alternative to detention. Authorities should publicly indicate that there will be no negative impact on missed court dates or recordings during the outbreak.
The authorities should end arbitrary detention of migrants, seek alternatives to the detention of those currently detained by migrants, and, if possible, choose to release them, especially for those infected and for those detained with no prospect of imminent, safe, and lawful deportation. During the full national lockdown, it was forbidden to leave the house without “reasonable excuse”. In the rare cases where a federal order is issued by the CDC, these individuals will receive a quarantine or isolation order. An example of quarantine order for novel coronaviruses (printed only) PDF icon [PDF – 5 pages] is provided. This document outlines the reasons for federal regulation, as well as information about where the person will be, quarantine requirements including the duration of the order, CDC legal authority, and information describing what the person can expect under federal order. However, the fact that there are still real doubts about the overall legality of the lockdown response suggests that the underlying law – the Health Act 1956 – is not really appropriate for the current purpose. Simply put, given the severity of the government`s lockdown measures, we really shouldn`t be able to write the dubious post we have. It would be preferable for lockdown rules to be based on clear and explicit parliamentary approval that leaves no doubt about their status. While many may disagree with Lord Sumption`s assessment of the wisdom of imposing lockdown or social distancing measures, his views on the underlying legality of these measures are likely to be of great interest to everyone.
Health data is particularly sensitive and the publication of information on the Internet can pose a significant risk to the persons concerned, in particular those who are already in a situation of vulnerability or marginalisation in society. The appropriate use and processing of personal data concerning health should be governed by rights-based legal safeguards. So lest an aging, disheveled radio shock discover our social media post and breathlessly explain that two law professors claim lockdown rules can be ignored, we certainly don`t say that.