The regulatory response to the COVID-19 pandemic is on the verge of becoming one of the world’s greatest setbacks for human rights protection, the separation of powers and proportionate governance in modern times. As we recently argued in ‘COVID-19 Emergency Measures and the Impending Authoritarian Pandemic’, a transnational constitutional pandemic is coming of age, whereby ‘regressions in the thinking of public health authorities to one of containment of COVID-19 at all costs, including its prioritization over matters that impinge on healthcare ethics and human dignity, are effectuating the imposition of disproportionate, uncompromising emergency responses’.
A common misconception that has arisen in legal and public discourse is that a public health emergency offers license to suspend or curtail a smorgasbord of rights and fundamental freedoms. Leaving aside the extent to which the COVID-19 pandemic is an emergency (noting that the scientific data that has accumulated indicates that SARS-CoV-2 poses a significantly lower risk to general public health than was apparent in the immediate aftermath of its outbreak), there are considerable legal and constitutional protections in place to prevent subjugation of general rights and freedoms to interventions in the name of public health protection. Article 15 of the European Convention on Human Rights, for example, states that some rights are non-derogable. This includes derogation from Article 3, which prohibits inhuman or degrading treatment, a right arguably infringed by the UK Government’s treatment of dying hospital patients, care home residents and their family members. Other provisions of the ECHR engaged during the pandemic, including Article 5 (right to liberty), Article 8 (right to respect for private and family life), Article 11 (freedom of assembly and association), Article 1 of Protocol 1 (protection of property), Article 2 of Protocol 1 (right to education) and Article 2 of Protocol 4 (freedom of movement) (not signed by Greece and Switzerland, signed but not ratified by Turkey and the UK), can only be limited in a proportionate manner. The legal tests for proportionality are well established and many of the measures adopted by governments ought categorically to fail those tests.
Also of relevance are the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. The Siracusa Principles are relevant not only in treaty law and in customary international law, but also for informing domestic considerations of legality and proportionality. Principle 25 states that public health may be invoked as a ground for limiting certain rights to take measures to deal with a serious threat to health, but that those measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured. Principle 51 states that the severity, duration and geographic scope of any derogation measure shall be such only as is strictly necessary to deal with the threat to the life of the nation and which is proportionate to its nature and extent. Principle 54 states that the principle of strict necessity shall be applied in an objective manner. Principle 55 states that the national constitution and laws governing states of emergency shall provide for prompt and periodic independent review by the legislature of the necessity for derogation measures. In our considered view, innumerable measures adopted by governments around the world would fail to meet these legal standards.
Too many governments have been prepared to bypass or suspend ordinary legal and constitutional protections in the name of COVID-19 suppression. We make no argument that COVID-19 should not be suppressed, but that any countermeasures must be strictly legally proportionate and in keeping with established constitutional and human rights norms. Further damage is seen in attempts to bypass or suspend effective democratic controls on government during the pandemic. Whilst an authoritarian response to the pandemic is unsurprising in more authoritarian states, it is particularly alarming in countries that are commonly considered to be liberal democracies. For example, the UK Government has largely regulated its pandemic response by way of delegated legislation. This may be justifiable in the earliest stages of an emergency, and in the COVID-19 pandemic, when the epidemiology of the disease is not widely understood. Yet as biomedical understandings of the disease have rapidly developed, and authorities have had ample opportunity to put sustainable response measures in place, the justification for governing by way of delegated legislation, which in many ways is tantamount to ruling by decree, ebbs away. It is simply intolerable that, nine or more months after the onset of the pandemic, when the urgency of the regulatory response has come and gone, delegated legislation remains the primary channel for implementing regulatory controls in the context of the pandemic. There must be a prompt return to regular channels of democratic lawmaking and accountable public administration if we are not to descend into an indefinite state of emergency and governance outside the established system of checks and balances.
COVID-19 exceptionalism poses an existential threat to the principles and processes that have been the lifeblood of reasoned, proportionate, democratic governance under the rule of law, as we pointed out in ‘COVID-19 Emergency Measures Are Hurting Democracy Globally’. With no end in sight to the COVID-19 pandemic, and states resorting to increasingly draconian measures often on the basis of highly contentious and in some cases spurious evidence, the potential for a “new normal” in the relationship between the citizen and the state is pronounced. Constitutional law, administrative law and human rights law were crafted for situations of just this kind, yet judgments such as those in Dolan and others v Secretary of State for Health and Social Care reveal that many courts in well-established democracies do not even come close to providing the necessary protections against a blatant and indefinite encroachment on basic civil liberties. The fear is that once the courts, too, succumb to COVID-19 exceptionalism, the avenues for peaceful institutional challenge rapidly run out. We have argued that the global copycat response to the pandemic has indicated the rise of a ‘pandemic’ of authoritarianization of governance, and events that have unfolded since the publication of our papers only strengthen our confidence in the veracity of our position. The regulatory response to the COVID-19 pandemic has itself become a grave public emergency, and both populations and institutions cannot afford to sleepwalk into an impoverished “new normal” in public governance and constitutional standards.
Dr. Stephen Thomson is an Associate Professor at the School of Law, City University of Hong Kong. Dr. Eric C. Ip is an Associate Professor at the Centre for Medical Ethics and Law, University of Hong Kong.
Administrative Law in the Common Law World 