Coronavirus: locking the over 70’s away?

Declan O’Dempsey

As part of our series consideringthe human rights and equality implications of Covid-19, Declan O’Dempsey considers proposals being floated that would single outthe over 70s for shielding and social distancing, once lockdown measures forother age groups are eased.

A warning was issued recentlyconcerning the measures that the government is proposing for shielding andsocial distancing of the over 70s once, for other age groups, lockdown measuresare eased (see Guardian 28 April2020).

Age UK has asked that such a policyshould be advisory rather than compulsory. They point to the consequences ofthis type of policy and its effect on the mental health of those over 70 andthe impact on access to health services for illnesses unrelated to Covid-19. Atthe moment, the government's plans are unclear. If the policy is put in placeusing advice which can be ignored without penalty by members of the group, willit achieve the aims that the government seeks? The effects of the outbreak havebeen worse amongst the older population than younger age groups (see ONS statistics), so could a compulsory policy beimplemented lawfully?

Compulsion and human rights law

If the government decides to rendershielding compulsory for this age group, it will need to amend the underlyinglegislation. The Health Protection (Coronavirus Restrictions) (England)Regulations 2020 (as amended) were made in the exercise of powers undersections 45C of the Public Health (Control of Disease) Act 1984. As theirpreamble points out, they are made in response to the serious and imminentthreat to public health posed by the virus and form part of the public healthresponse to it. They are expressly temporary and as soon as the Secretary ofState considers that any restriction is no longer necessary to prevent, protectagainst, control or provide a public health response to the incidence or spreadof infection, he or she must publish a direction terminating that restriction.

Regulation 6, as amended, statesthat no person may “be outside of the place where they are living withoutreasonable excuse”. The Regulations give a list of matters constituting areasonable excuse. Currently, they apply to everybody, no matter what age andan amendment to reflect compulsion for the over 70’s would need to be made andto be absolutely unambiguous.

Humanrights and compulsion

A compulsory full-time restrictionon the ability of persons in this age group to go outside their homes mayoffend against Article 5 of the European Convention on Human Rights. Thisprovides as relevant “No one shall be deprived of his liberty save in thefollowing cases and in accordance with a procedure prescribed by law…(e) thelawful detention of persons for the prevention of the spreading of infectiousdiseases,…”

To determine whether it constitutes"deprivation of liberty", the concrete situation must be examined,taking account of the whole range of criteria such as the type, duration,effects and manner of implementation of the measure in question (see Guzzardi vItaly (1981) 3 EHRR 333, paragraph 92). 

A compulsory full-time lockdownwould probably constitute a deprivation of liberty.

The obvious basis for the“lawfulness” of such deprivation of liberty would be “for the prevention of thespreading of infectious diseases”. A court would consider whether the spreadingof the infectious disease is dangerous to public health or safety; and whetherthe deprivation of liberty complies with the principle of proportionality andthe requirement that any detention must be free from arbitrariness. In doing soit will consider whether detention is the last resort to prevent the spreadingof the disease because less severe measures have been considered and found tobe insufficient to safeguard the public interest. Although in one case theStrasbourg court has suggested that this basis for justification may arise concerningpersons who are spreading infectious disease (Enhorn v Sweden 56529/00),I do not think that this apparent restriction would withstand scrutiny. Soalthough the situation in which there is a deprivation of liberty to protectthe detainee from the spread of infectious disease has not been tested as yet,there is no reason to suppose that the same principles will not apply.  

However, those principles includethe fact that such deprivation should be the weapon of last resort. Thepractical question would be whether non-compulsory self-isolation methods hadbeen tried and failed. There would be no valid reason to impose a lockdownamounting to a deprivation of liberty unless it could be shown that this agegroup (in particular) would not isolate themselves voluntarily. 

Similarly, if the social distancingbehaviour which the whole of society will have to observe would protect thisage group adequately there would be no basis for such a draconian imposition.

Restrictionsof movement (or curfews by another name)

Another form of restriction wouldbe a limitation on freedom of movement of this age group. Limitations onfreedom of movement (curfew, or restrictions on where a person can go atparticular times) will not amount to a deprivation of liberty for Article 5unless they are so stringent that the person cannot maintain a social life orrelations with the world outside his or her home.

If those over 70 were compelled tokeep to their homes at all times this would probably amount to a deprivation ofliberty contrary to Article 5 and it would be very difficult for the state tojustify the measure. 

If a restriction on movement ofthat group were imposed, it would be unlikely to have the required healtheffect, despite being lawful. 

Article 8 ECHR

A restriction on the movement ofpersons over 70 outside their own home or a deprivation of liberty may alsoconstitute a lack of respect for their right to family and private lifeguaranteed by article 8 of the Convention. In this respect, there can be littledoubt that restricting this age group to their home radically impairs theirability to maintain familial relationships. It also will restrict theindividual's ability to develop as an individual. Therefore, a restrictionwould engage article 8. The question, therefore, would be whether there is anylawful base for this restriction.

Any interference with anindividual's right to respect for private life must be in accordance with thelaw. That law needs to be clear, foreseeable, and adequately accessible. If theCoronavirus Regulations were amended, it would be necessary to have someforeseeability as to when the discretion to prosecute would be exercised inrespect of those over 70. 

The assumption would be that thecriminal law would be applied in the ordinary way and prosecutions would bebrought when there was sufficient evidence of an offence to warrantprosecution. 

Interference with respect forprivate life can be justified if the measure pursues a legitimate aim. One ofthe specific legitimate aims that Article 8 paragraph 2 mentions is "theprotection of health". The government would need to be able to produceevidence to show that the measure (in reality) assisted it.

The government would also have toshow that the restriction is "necessary in a democratic society".There must be some pressing social need for the interference. The interferencemust be proportionate to the legitimate aim being pursued. In particular, thetwo hallmarks of a democratic society are tolerance and broadmindedness. Therefore,any measure would need to ensure that those over 70 are not stigmatised orexposed to unnecessary risks (such as risks resulting from their unwillingnessto make use of other health services during the outbreak).

The state will have a broad marginof discretion when determining whether the restriction was necessary. However,the alternatives open to the government will be assessed when consideringproportionality. A highly restrictive measure is unlikely to be lawful if therewere non-coercive measures that could have been adopted which would have beensimilarly effective to achieve the public health aim or which might createlower risks to health for the affected group.

It is unlikely therefore that thegovernment could impose mandatory restrictions on individuals unless it hadfirst established that advisory methods were not working or, as in the case ofthe original regulations, stood a high chance of not achieving the aim ofprotecting public health.

Article14 ECHR.

Assuming that either article 5 orarticle 8 are engaged, whether or not the government is in breach of thosespecific articles, plainly a rule that applies only to those 70 or over treatsthat age group less favourably than others who are not subjected to theshielding requirements. Article 14 provides that the rights under theConvention are to be applied without discrimination. 

Age discrimination in the exerciseof the Convention rights is treated as discrimination based on "otherstatus" (see Schwizgebel v Switzerland No25762/07 at 85). However, it has not yet been regarded as one of the"suspect" grounds of discrimination such as race or sex, whichrequire "very weighty reasons" for their justification (see BritishGurkha Welfare Society v United Kingdom (44818/11) @ 88).

If a rule were introduced whichapplied only to those 70 or older, that less favourable treatment would need tobe justified. There would have to be justification for it which is objectiveand reasonable.

Whether a compulsory rule could beintroduced when non-compulsory alternatives are available is highly doubtful.The evidence of non-compliance with non-coercive advice would need to beextremely strong and would need to be accompanied by evidence of the actualspread to the vulnerable age group before a draconian compulsory measure couldbe justified even temporarily.

Thecommon law: False imprisonment?

If some form of legal compulsionwere used to restrict members of this age group within an area delimited by thegovernment, it is possible, in some circumstances, that the common law tort offalse imprisonment would occur. This requires an act whichdirectly/intentionally/perhaps negligently causes a person to be confinedwithin an area delimited by the defendant. 

A threat of legal process can amountto a sufficient method of confinement (see R v Rumble (2003)EWCA Crim 770). The essence of it is that the person is obliged to stay wherehe is whether he wants to do so or not. Legislation to achieve this result, torender it lawful at common law, would have to be crystal clear. 

The danger, otherwise, for thegovernment, is that claims for false imprisonment could be brought, even if themeasure were a limited form of a curfew imposed on the age group. Theimprisonment, based on an unclear or faulty piece of legislation, could stillresult in claims for false imprisonment even if a person were to ignore themovement restrictions from time to time (see R (otaJalloh) v Secretary of State for the Home Department [2020]UKSC 4). In Jalloh the Supreme Court considered the case of aman who was unlawfully subjected to a curfew. From time to time he did ignoreit. But the Supreme Court made the point that this makes no difference to hissituation while he was obeying the curfew. The court said that there was “thecrucial difference between voluntary compliance with an instruction andenforced compliance with that instruction." During the time he was obeyingthe curfew, and when he did, it was enforced. The same would be true of thoseobeying the curfew due to its apparent compulsory nature. 

Partial movement restrictions areunlikely to be the measure of choice however due to their ineffectiveness inprotecting those in the age group from contracting the disease. 

Voluntaryadvice.

Could there be any problems withthe government strongly advising those aged 70 or older to continueself-isolation or shielding? The dangers of such advice are substantiallydifferent and do not involve infringements of the group's human rights.However, the effect of introducing such strong advice may well be to make itmore difficult for those age 70 or older to go outside their residence. It mayalso have the effect that they are exposed to different health risks becausethey do not access the health service when otherwise they would have usedit. 

In the exercise of any of itsfunctions, the government must consider the implications of its policy on thisage group. It is bound to observe the principles under section 149 of theEquality Act 2010 (the public sector equality duty).

The obligation under section 149 isto have due regard to the need to eliminate discrimination, harassment, victimisation,or other prohibited conduct under the Act. It is to have due regard to the needto advance equality of opportunity between persons who are in an age group andthose not in it. It is the duty to have due regard to the need to foster goodrelations between those who are within an age group and those who are not. Inconsidering whether its policy advances equality of opportunity in this way,the government must have due regard to the need to remove or minimisedisadvantages suffered by persons of this age group which are connected totheir age and to take steps to meet their needs where these are different fromthe needs of persons outside the age group. Having due regard to the need tofoster good relations involves having due regard to the need to tackleprejudice and to promote understanding in respect of an age group.

Any policy of giving strong adviceto the age group will, therefore, need to take account of the pre-existing needfor those in the age group of 70 or older to overcome social isolation and inmany cases to access the health service for non-Covid 19 illnesses. Anyadvice-giving policy will need to try to mitigate the impact on socialisolation and to encourage the age group to access health services. It is quitelikely that if this age group is told to remain at home there will be anincrease in non-coronavirus -related illnesses and deaths because of individualsnot attending their doctor. 

This runs entirely counter to theaims that the policy will be said to pursue.

Consideration would need to begiven to how the advice could ensure that those not complying with it were notstigmatised. It is difficult to see how this could be guaranteed. However, itis important to remember that the public sector duty is a duty to have dueregard to this outcome, rather than a duty to achieve it. One way ofdemonstrating that due regard had been had to this effect would be tostrengthen the protection relating to age discrimination concerning theprovision of goods and services, and to ensure that the pre-existing criminalprotections against hate crime based on age were better known and betterenforced. 

Given that the aim of the Advicewould be the protection of the health of what is considered to be a vulnerableage group, it will be quite difficult to show that the government has failed tohave due regard, in broad terms, to the needs of the members of this age groupif it has considered evidence that shows that ordinary social distancingrules/laws which will remain in force for the whole population would notprovide sufficient protection for this age group. If there is no such evidencethen there will be an argument that the Advice will not have had due regard toequality of opportunity (to lead a life outside the home) or the other aspectsof the public sector equality duty. 

Any explicit policy would,therefore, be susceptible to a judicial review in the administrativecourts.  

Conclusion

As I write it is unlikely, forpurely political reasons if nothing else, that the government will introduceany compulsory measures to require an age group to remain at home. There ismore danger from strongly worded advice from the government creating socialpressure on this age group voluntarily to restrict its movements. This isbecause although the law will protect the civil rights of the members of thisage group, there is very little that can be done to prevent government fromengaging in giving behavioural advice. The sense of unease which age UK hasexpressed therefore has some foundation. In legal terms action to challenge thegovernment’s policy formulation will probably need to be taken under section149 if the Advice which is ultimately given fails to have due regard to theneed to minimise the disadvantage which will be suffered by persons of this agegroup because of the pressure it will place on them and because of the sense of"victimisation" it may engender. Whilst, of course, the protection ofthe health of members of this age group is a very important consideration, itis by no means clear that the other, rumoured, measures of social distancingwould not equally well protect their health. In the absence of any evidence tothat effect, the government's policy of advising everybody that those age 70 orover should continue shielding may be susceptible to challenge.