The British Lockdown is Disproportionate

Yossi Nehushtan

Keele University

In two insightful and well-argued posts elsewhere online, Jeff King argues that the coronavirus lockdown in the UK is legal and proportionate. Here I wish to focus on the issue of proportionality and to argue that the lockdown in the UK is in fact disproportionate and illegal. The proportionality principle will be applied here as one that includes four sub-tests: legitimate aim; suitability (or rational connection); necessity; and proportionality in the narrow sense. My analysis could likely be applied mutatis mutandis to other countries where rights are protected by constitutional or statutory proportionality testing.

Legitimate aim and suitability

The explicit purpose of the lockdown is basically to save lives, which is, of course, a legitimate aim.  

As to suitability: here we ask whether the lockdown is likely to achieve its purpose. To answer this question, we need to refine the legitimate aim described above. The legitimate aim cannot be merely ‘saving lives’. It must be ‘saving more lives than the lives that will be lost as a result of the lockdown’. The obvious problem here is that the determination of whether more lives were saved by the lockdown is highly speculative. Normally, in such a case of uncertainty, it would be wise for the court to defer to the legislature and to assume that there is rational connection between imposing the lockdown and ‘saving more lives’. Here, however, we have no indication that government asked the ‘suitability question’ in a serious, methodological and reliable manner. We have no indication that government invited any research or conducted any risk-assessment, comparing the number of lives that would be lost if no lockdown is imposed with the number of lives that will be lost in the short and long-term as a result of the lockdown. And yet, since this is not the most persuasive argument against the illegality of the lockdown, I shall assume its ‘suitability’ and move on. 

Necessity

Here we ask whether it is possible to achieve the legitimate aim of ‘saving more lives’ while restricting people’s liberties and adversely affecting their interests to a lesser extent. In order to establish the argument that the current lockdown is ‘necessary’, the government must persuade us that there are no less restrictive measures that could be equally effective in achieving the legitimate aim of saving more lives.

Here King argues that “a number of other response measures in Britain were tried and found wanting. The social distancing ‘advice’ was effectively ignored” – and that therefore the lockdown was the ‘last resort’. The problem with this argument is that the fact that the public generally ignored the less restrictive measure (the social distancing advice) did not really leave the government no choice but to impose the current lockdown. There may be other measures, stricter than the one that was unsuccessful yet not as harsh as the one that was chosen – that could be equally effective in achieving the legitimate aim. The only relevant question here is whether measures that are less restrictive than a blanket lockdown could have been equally effective in achieving the aim of ‘saving more lives’. King does not answer this question. And the government did not really try to apply any less restrictive measures after the failure of the social distancing advice. The UK moved from a mostly ‘sit and do nothing’ policy to the Prime Minister’s ‘social distancing advice’ on 16 March 2020; then to ordering pubs, cafes, restaurants, bars and gyms to close on 20 March; and to the nationwide lockdown on 23 March. These quick shifts in policy suggest that at no point did the government review the efficiency of measures short of a blanket lockdown, such as mass testing, isolating only risk-groups and other measures successfully applied in South-Korea,  Singapore, Sweden, and – to a lesser extent – the Netherlands.

The British lockdown may or may not be the less restrictive measure that is equally effective in achieving the legitimate aim of ‘saving more lives’. It is difficult to tell given the lack of reliable and transparent information. Yet for the sake of argument, I am willing to assume that the current lockdown is the less restrictive measure because, even if it is, it is still disproportionate in the narrow sense.     

Proportionality in the narrow sense: proportionality as a balancing test

Here we ask whether the legitimate aim of ‘saving more lives’ justifies the measures that were taken to achieve it.

Before applying this balancing test, a conceptual note about the aim of ‘saving more lives’ is required. Describing the legitimate aim as that of ‘saving more lives’ is misleading. Life has an expiry date. Therefore, it can never be ‘saved’ but rather prolonged; death cannot be avoided, only postponed. This cold philosophical point has practical implications. The hard reality is that COVID19 kills mostly old people with severe underlying health conditions who would likely have died in the near future. For healthy people under 70 the virus is not significantly more deadly than the flu, and the number of deaths among people under 70 is low any way, and certainly not meaningful enough to create a national problem. This, and especially the fact that the proportion of COVID19 victims who would have died anyway could be as many as half or two thirds, has been explained by Professor Neil Ferguson, director of the MRC Centre for Global Infectious Disease Analysis at Imperial College London, and Sir David John Spiegelhalter, Professor of the Public Understanding of Risk in the Statistical Laboratory at the University of Cambridge. This means that, as unpleasant as it may sound, the true legitimate aim of the lockdown is not to ‘save more lives’ but to slightly postpone death for people who, at least in the vast majority of cases, would have died in the near future of causes other than COVID19. Does this aim justify the lockdown? To answer this question, we need to fully appreciate the short and long-term harm caused by the lockdown.  

While the daily number of infected people and deaths is making the news and spreading panic, the victims and implications of the lockdown are mostly hidden from the public eye. This includes, to name a few, current and likely collapse of entire industries and loss of millions of jobs; forcing employees to take an unpaid leave of absence; many small businesses struggling to survive; sharp rise in the normal agony following the loss of a job, income or business (depression, divorce, domestic violence, suicide, etc.); pensions and saving taking a major hit; hospitals postponing non-urgent surgeries and appointments; adverse effect on people’s mental health; and finding ourselves on the verge of recession that may dwarf the 2008 crash.

No comprehensive research has been invited by the government and no risk-assessment report has been prepared regarding the deaths, loss of life-quality, harm to people’s social and mental well-being, and harm to the social fabric of society that will be caused as a result of an almost complete shutdown of UK economy and non-vital services for more than a few weeks. The truth is that UK government has not engaged in any meaningful attempt to measure the true harm that would be caused by COVID19 should less restrictive measures be taken against the harm that will result from the blanket lockdown. A representative example of the UK’s ill-informed policy is the decision to lock-down all schools. That decision was made on 20 March. Only two weeks later, it was found in research led by UCL, that ‘school closures are likely to have a relatively small impact on the spread of Covid-19 and should be weighed against their profound economic and social consequences, particularly for the most vulnerable children’.

Another aspect of the UK policy is to do 'whatever it takes' to maintain the lockdown, including paying 80% of the salary of employees who would otherwise lose their jobs and providing £350bn in aid for saving businesses, without indicating how these programs will be funded. This is not responsible public policy. This is not balancing. And this is not proportionate.

The principle of proportionality forces the government to ask itself the following questions: how much are we willing to pay and sacrifice as a society and as individuals, in terms of money, social and mental well-being, liberty etc., to shortly prolong the life of X number of people? Is it justified, in order to shortly prolong the life of X number of people, to shut down entire industries - thus pushing millions into life-time poverty and crashing the financial, social and mental well-being of millions more? What would be the long-term effects of a ‘whatever it takes’ policy? Would it be counter-productive, causing more harm than good?

In the absence of methodological, comprehensive, well-informed governmental answers to these questions, and given what we already know about the harm caused by both COVID19 and the lockdown, it seems that the lockdown is disproportionate. 

King disagrees and argues that the lockdown is proportionate partly because it is supported by the public. In his view, “the views of the general population bearing the incredible weight of the lockdown measures are a material indication of their fairness”, indicating that “a recent YouGov poll found that 93 percent of the population supported the lockdown”. This is, I think, conceptually wrong. The answer to the question of whether the lockdown is proportionate depends on the answers to the questions I posited above. Public opinion is, quite simply, irrelevant. Public opinion can be affected by fear, manipulation, hysteria, lies, half-truths, biases and so on. Public opinion may also change, at times dramatically, at times irrationally, but that will not affect the principle of proportionality. Indeed, there are conceptual, constitutional and moral reasons not to equate proportionality with pubic consent or public legitimacy. 

The lockdown is therefore a disproportionate response to a real health threat. On the assumption – which will not be explored here – that the lockdown affects protected rights, it can be concluded that the lockdown’s disproportionate character renders it illegal.

Yossi Nehushtan is Professor of Law and Philosophy at Keele University, School of Law.

Suggested citation: Yossi Nehushtan, ‘The British Lockdown is Disproportionate’ IACL-IADC Blog (9 April 2020) https://blog-iacl-aidc.org/2020-posts/2020/4/9/the-british-lockdown-is-disproportionate