Courts, Proportionality and COVID-19 Lockdowns

EricIpPortrait.png

Eric C. Ip

University of Hong Kong

The COVID-19 pandemic and domestic legal responses to it have inflicted widespread suffering across the globe. States, democratic and authoritarian, most of them signatories of international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the United Nations Convention on the Rights of Persons with Disabilities (CRPD), have imposed drastic emergency responses that include quarantines of entire towns, cities, provinces, even nations unprecedented in the modern era. 

Mass quarantine, called ‘lockdown’, can be said to be an invention of the Chinese authorities who shut down transport systems in Wuhan, the first known epicentre of the COVID-19 outbreak, in January 2020. Though differing from state to state, such measures generally feature significant restrictions on citizens’ personal liberty, freedom of movement, work, family life, education, and ironically even health due to the delay in treating other diseases. Displacing individuals, families, and social networks may very well prove, in retrospect, to have caused a devastating public mental health crisis. The economic slump, mass unemployment, domestic violence, and other repercussions that ensued on lockdowns that disproportionately hit the less well-off may ramify in more long-run health issues and early deaths than the pandemic itself. 

It has become commonplace in public debate that a public health emergency is a legitimate justification for suspending fundamental rights and freedoms at all costs. In fact, to adopt an ‘all-or-nothing’ approach to combat a public health emergency using non-pharmaceutical Interventions is incompatible with most international human rights treaties, especially the ICCPR. Article 4 of the ICCPR explicitly forbids such restrictions, even during a ‘public emergency which threatens the life of the nation’, if it should involve ‘discrimination solely on the ground of race, colour, sex, language, religion or social origin’; or derogations from the right to life, freedom of thought, conscience and religion; or from the prohibition of torture, cruel, inhuman or degrading punishment, medical or scientific experimentation without consent, slavery, slave-trade, servitude, imprisonment due to inability to fulfil a contractual obligation; or from recognition of everyone as a person before the law and the principles of legality in criminal law. What is more, the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, approved in 1984 by the United Nations’ Commission on Human Rights, states that the ‘severity, duration, and geographic scope’ of any emergency response that derogates from the rights guaranteed by the ICCPR must be ‘strictly necessary’ and ‘proportionate’ to the threat defended-against.

Most lockdown measures are prima facie disproportionate, thus the courts and public health policy-makers must carefully gauge their constitutional and international-conventional permissibility. The doctrine of structured proportionality typically requires the state, when imposing measures restrictive of rights and freedoms, to pursue legitimate objectives; to prove that impugned measures are rationally related to those objectives; and to guarantee that the impugned measures are no more than necessary to achieve legitimate objectives. Unlike ordinary substantive review standards, such as Wednesbury unreasonableness, structured proportionality is, as the High Court of Australia observed in Palmer v Western Australia [2021] HCA 5, transparent and in principle hostile to legal fictions that might justify disproportionate measures. Although constitutional law in the United States has developed separately from that of Europe and the Commonwealth, its ‘strict scrutiny’ doctrine is in important ways similar to structured proportionality, as it requires legislation that restricts fundamental constitutional rights to promote compelling governmental interests; be substantially and directly related to promoting those interests; and be the least restrictive means that effectively promote them.

Unfortunately, several courts around the world have been watering down structured proportionality in the judicial review of COVID-19 emergency measures. Consider a few  cases from common law jurisdictions. In Andrew Borrowdale v Director-General of Health [2020] NZHC 2090, the High Court of New Zealand presumed the order for New Zealanders to stay at home for the 9-day period between 26 March and 3 April because of COVID-19 to be ‘necessary, reasonable, and proportionate’, ignoring wholesale the steps required by structured proportionality. Similarly, in R (Dolan) v Secretary of State for Health and Social Care (Dolan) [2021] 1 All ER 780, the English Court of Appeal in the United Kingdom expressly admitted that the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, authorising the first COVID-19 nationwide lockdown in England interfered with the rights to private and family life. Nevertheless, it defended the regulations with a broad brush that neglected to justify the astonishing assertion that it was ‘unarguably proportionate’. In Newman v Minister for Health and Aged Care [2021] FCA 517, the Federal Court of Australia rejected a challenge to Australia's India travel ban. Instead, the court affirmed, with no reasons given, that the Health Minister had satisfied Section 77(4) of the Biosecurity Act (Cth), which is tantamount to a structured proportionality test. The United States Supreme Court in South Bay Pentecostal Church v. Newsom 140 SCt 1613 (2020) declined to overturn California's limits on in-person religious services. In his concurring opinion, Chief Justice John Roberts said that public health measures adopted by political officials are subject only to ‘broad limits’ and ought ‘not to be subject to second-guessing’, contrary to the logic of strict scrutiny.

This blog post passes no judgment on the actual proportionality of specific national COVID-19 emergency measures, including lockdowns; the point it makes is far simpler. A public health emergency per se neither suspends entrenched fundamental rights nor invalidates the continued applicability of structured proportionality and similar doctrines in the countries that recognise them. The transparent analytical steps that these doctrines obligate authorities to openly undertake should not be sidestepped by public health officials or courts, especially in times of high stress and emotionality like the outbreak of a pandemic. To paraphrase the English Chief Justice Lord Hewart in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256: doing justice is not enough, even under a pandemic. Justice should be seen to be done through conspicuous and rigorous analyses of the legitimacy, rationality, and necessity of public health emergency measures that drastically restrict constitutionally protected rights and interests.

Eric C. Ip is an Associate Professor of Law and Research Fellow at the Centre for Medical Ethics and Law, The University of Hong Kong

Suggested Citation: Eric C. Ip, ‘Courts, Proportionality and COVID-19 Emergency Measures’ IACL/AIDC Blog (23 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/23/courts-proportionality-and-covid-19-lockdowns.