Emergency Powers in a Time of Pandemic 9781529215434

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“Dr Greene places the chaos and maelstrom of 2020 within the wider literature on rights and the state of exception. And he does so in an accessible book!” Fergal Davis, King’s College London

Rumyana van Ark (née Grozdanova), University of Amsterdam

“Dr Greene directs his inimitable expertise on states of emergency to address the challenge of our time, COVID-19. A crucial text critically evaluating the state’s response to the pandemic.” Jane M Rooney, Durham University

“Makes a compelling case that the next pandemic and the actual threat of climate change need to be prepared through regulation...a must-read for any law and policy maker mindful about human rights and the rule of law.” Oana Stefan, King’s College London

How do we maintain core values and rights when governments impose restrictive measures on our lives?

Alan Greene is Senior Lecturer in Law at the University of Birmingham.

EMERGENCY POWERS IN A TIME OF PANDEMIC ALAN GREENE

“As the second wave of COVID-19 and new (emergency) governmental measures draws ever nearer, this is a particularly timely book. Essential reading for those with legal and non-legal backgrounds alike!”

EMERGENCY POWERS IN A TIME OF PANDEMIC ALAN GREENE

Declaring a state of emergency is the best way to protect public health in a pandemic but how do these powers differ from those for national security and economic crises? This book explores how human rights, democracy and the rule of law can be protected during a pandemic and how emergency powers can best be ended once it wanes. Written by an expert on constitutional law and human rights, this accessible book will shape how governments, opposition, courts and society as a whole view future pandemic emergency powers.

ISBN 978-1-5292-1541-0

9 781529 215410

B R I S TO L

@BrisUniPress BristolUniversityPress bristoluniversitypress.co.uk

@policypress

COVID-19 COLLECTION

ALAN GREENE

EMERGENCY POWERS IN A TIME OF PANDEMIC

First published in Great Britain in 2020 by Bristol University Press University of Bristol 1–​9 Old Park Hill Bristol BS2 8BB UK t: +44 (0)117 954 5940 e: bup-​[email protected] Details of international sales and distribution partners are available at bristoluniversitypress.co.uk © Bristol University Press 2020 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 978-​1-​5292-​1541-​0 paperback ISBN 978-​1-​5292-​1542-​7  ePub ISBN 978-​1-​5292-​1543-​4  ePdf The right of Alan Greene to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Bristol University Press. Every reasonable effort has been made to obtain permission to reproduce copyrighted material. If, however, anyone knows of an oversight, please contact the publisher. The statements and opinions contained within this publication are solely those of the author and not of the University of Bristol or Bristol University Press. The University of Bristol and Bristol University Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Bristol University Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design: blu inc, Bristol, Front cover image: iStock /​101cats Bristol University Press uses environmentally responsible print partners. Printed and bound in Great Britain by CMP, Poole

Contents Notes on the Author Acknowledgements

iv v

Introduction one The Pandemic State of Emergency two Pandemics and Human Rights: Non-​Derogable Rights three Pandemics and Human Rights: Derogable Rights four Pandemics and Democracy five The End of the Pandemic Emergency six Conclusions: Breathing Space

1 7

93 119 145

Index

167

iii

35 61

Notes on the Author Alan Greene is Senior Lecturer in Law at the University of Birmingham. He specialises in the limits of constitutionalism, judicial review and the role of courts in vindicating the rule of law. He is the author of Permanent States of Emergency and the Rule of Law (Hart, 2018), the key text in the field.

iv

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Acknowledgements I wrote this book while under lockdown in Birmingham in 2020. My thanks to everyone at Bristol University Press who helped turn around this project in such a short period of time and to the reviewers of the book proposal for their extremely helpful feedback. Special thanks go to Helen Davis for all her hard work. My deepest thanks to Elizabeth for her patience, love and support. To my friends at home in Ireland and elsewhere, who came together at weekends over Zoom for a drink, a chat and some well-​needed community during a time when we were all forced to stay apart. Finally, to my family at home in Ireland –​to Ronan, Caireen, Darragh, Melissa, Alanna, Fianna and, especially my mum Sheila and twin Francis.

v

Introduction

It was mid-​March 2020 in Birmingham in the UK and everything was normal. Friends met friends for coffee, embracing each other with a warmth, as friends do. People side-​stepped the homeless person on the pavement outside the train station, avoiding eye contact as they hurried on. Shops were full. Restaurants were full. Everything was normal. It was one of the most surreal experiences of my life. As an Irish person living in the UK, I consume media from both countries. In mid-​March 2020, Ireland was already in lockdown in response to the COVID-​19 pandemic; meanwhile in the UK, the government seemed considerably more reluctant to close things down. It was like living in two parallel universes, where Irish media coverage hunkered down, bracing itself for the oncoming storm; at the same time, the UK kept calm and carried on, debating the merits of ‘herd immunity’.1 1

George Parker, Jim Pickard and Laura Hughes, ‘UK’s chief scientific adviser defends “herd immunity” strategy for coronavirus’, The Financial Times (13 March 2020):  accessed 3 July 2020.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

Eventually, the UK followed suit, although it would ultimately end up with the highest death toll in Europe.2 This is a book about the COVID-​19 pandemic. It is a reflection on some of the key issues raised by this pandemic. It explores how law can accommodate necessary responses to such an extreme crisis but also, how law can –​and should –​ control these responses too. Chapter One (The Pandemic State of Emergency) outlines a theory of states of emergency, demonstrating that these provisions in constitutions and international treaties are designed to quarantine exceptional powers to exceptional situations. I  show how pandemics are, very much, a threat that can be accommodated by states of emergency and further, that this response was taken by some states but not by others during the COVID-​19 pandemic. Chapter Two (Pandemics and Human Rights:  Non-​ Derogable Rights) then discusses the human rights implications of state responses to pandemics, articulating a theory of human rights that best encapsulates what I term their ‘emancipatory potential’ –​by this I mean human rights’ potential to not simply prevent the state or others from encroaching upon a person’s freedom but also to empower a person and take control of one’s life. Further, this emancipatory potential can only be ensured by viewing all branches of government as being involved in the human rights project and creating what has been described as a ‘culture of justification’.3 Chapter Two (Pandemics and Human Rights: Non-​Derogable Rights) then focuses specifically on non-​derogable rights –​rights that are so important they cannot be taken away and so, in principle, are not affected 2

3

Andy Bruce, ‘UK’s COVID-​19 death toll tops 40,000, worst in Europe’, Reuters (12 May 2020):  accessed 2 July 2020. Etienne Mureinik, ‘A Bridge to Where: Introducing the Interim Bill of Rights’ (1994), South African Journal of Human Rights, 10: 31–​32.

2

Introduction

by the declaration of a state of emergency. Here, I demonstrate that these non-​derogable rights provide significant protection for human rights even during an officially declared state of emergency. Chapter Three (Pandemics and Human Rights: Derogable Rights) then looks at derogable rights  –​rights that can be affected by the declaration of a state of emergency such as the right to liberty, and freedom of assembly and association. Focus here specifically is on what are termed ‘lockdowns’ –​regimes introduced by states to enforce social distancing during a pandemic, with a view to stymying the transmission of the virus. Here, I contend that even though it may appear that declaring a state of emergency looks as if it weakens human rights protections, by quarantining exceptional powers to exceptional situations, this approach can better protect human rights in the long term. Consequently, I caution against arguments that seek to accommodate lockdown powers under the ordinary ambit of these rights; for example, through the express limitation clauses built into what are termed ‘limited rights’, or through the broader proportionality test relevant to what are termed ‘qualified rights’. Such a ‘business as usual approach’ loses the quarantining effect of a de jure state of emergency, paving the way for potential abuse of similar powers in non-​ pandemic situations. While Chapter Two (Pandemics and Human Rights: Non-​ Derogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights) focus on the impact of pandemic emergency powers on human rights, Chapter Four (Pandemics and Democracy) looks at the impact of pandemics on democracies. Here, I question the standard assumption that prevails in national security emergencies that executives are best placed to act. Instead, I contend that in a pandemic, there is no reason to assume that the executive should be privy to sensitive information that the legislature cannot also hear; nor, once the emergency powers are in effect, that the legislature is unable to scrutinize the executive and hold it to account. On this

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point, I argue that, while it may ostensibly appear difficult for legislatures to sit during a pandemic where the virus is airborne and spreads easily in closed spaces with large groups of people, states’ experiences during the COVID-​19 pandemic demonstrate that there are innovative ways to facilitate this. Chapter Five (The End of the Pandemic Emergency) then looks at ways in which pandemic emergencies may recede. I  contend that, unlike national security emergencies, there may be a risk of a ‘rush to normalcy’ following a pandemic, giving rise to human rights concerns regarding the protection of the right to life. Further, as states move to lift lockdowns, pursuing more targeted containment measures to control the pandemic, new human rights concerns regarding the discriminatory application of these powers arise. I discuss the issue of contact tracing apps, immunity certificates and stricter border controls to demonstrate this. While this possibility of a rush to normalcy suggests that there is little risk of pandemic emergency powers becoming permanent, Chapter Six (Conclusions: Breathing Space), the concluding chapter of this book, argues that the risk of some of these powers ‘creeping’ beyond pandemics is very real. Consequently, the danger of permanent emergency powers remain. However, it is also important to note that not every rapid and radical change enacted in response to the COVID-​19 pandemic may be negative; not every aspect of the status quo that existed prior to the pandemic may be worth saving. The ability of states and international organizations to collaborate and respond decisively to the pandemic may give real hope that effective measures to tackle climate change –​the huge existential crisis of our time –​are possible. In this book, I have sought to provide illustrative examples of the legal architecture pertaining to emergencies that are in effect in different constitutions across the world and specifically, of the emergency powers that were deployed in response to the COVID-​19 pandemic of 2020. I  do make frequent references to constitutional orders such as the United Kingdom

4

Introduction

and Ireland, not because there is something particularly unique about these states and their responses to COVID-​19, but because I  am building upon an existing knowledge of these jurisdictions. The same is also true of my emphasis on the European Convention on Human Rights (ECHR) at the expense of other international human rights treaties. Despite the limitations of the jurisdictions discussed, I nevertheless hope that the findings and extrapolations based on these findings will be relevant beyond these jurisdictions. Indeed, as I will show, many of the challenges and experiences posed by the COVID-​19 pandemic were universal. Finally, given the highly fluid nature of the situation at the time this book was written, much of what is contained here may have changed dramatically since I completed it in early July 2020. Furthermore, I have had to rely on timely sources of information, many of which may not have gone through the usual peer-​review process and instead were published on open access research databases such as SSRN. All errors, of course, remain my own.

5

ONE

The Pandemic State of Emergency Introduction On 12 March 2020, the World Health Organization (WHO) declared ‘coronavirus disease’ (COVID-​19) a pandemic.1 COVID-​19 is caused by the novel coronavirus SARS-​CoV-​2 and induces the primary symptoms of a fever, dry cough and tiredness. It can also include other symptoms, such as aches and pains, a sore throat, conjunctivitis and headaches, to name but a few.2 While most cases of COVID-​19 are considered to be a ‘mild to moderate respiratory illness’ and patients will recover without requiring special treatment, in certain instances, notably among the elderly and those with underlying health conditions, COVID-​19 can develop into a serious illness, triggering conditions like pneumonia which require specialist hospital treatment.3 At its most extreme, it can kill. At the time 1

2 3

‘WHO announces COVID-​19 outbreak a pandemic’, WHO: Regional Office for Europe (12 March 2020): < https://​www.euro.who.int/​en/​health-​ topics/​health-​emergencies/​coronavirus-​covid-​19/​news/​news/​2020/​ 3/​who-​announces-​covid-​19-​outbreak-​a-​pandemic#:~:text=The%20 meeting%20follows%20the%20announcement,a%20growing%20 number%20of%20countries> accessed 31 August 2020. ‘Coronavirus: Symptoms’, World Health Organization:  accessed 2 June 2020. See n 2, Chapter One.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

of writing, in June 2020, COVID-​19 has caused the deaths of approximately 500,000 people worldwide.4 This figure should be viewed with caution, however, as not every death caused by COVID-​19 will be attributed as such.5 The scale of the COVID-​19 pandemic triggered many countries to declare a state of emergency. Indeed, as we shall see, there is a strong case to be made that in recent decades, this is the closest we have come to an ‘ideal’ state of emergency –​a perfect storm that legal states of emergency were designed to confront. Yet despite this, not every country responded in this way or enacted powers expressly labelled as ‘emergency powers’. The purpose of this chapter is to explore why this is. I start by briefly outlining the theory behind emergency powers and the consequences that this theory has for fundamental constitutional values such as democracy, human rights and the rule of law. I then look at how pandemics can trigger emergency responses from the state, and discuss whether or not this is a good thing from a constitutionalist perspective –​ the idea that all state power should be exercised lawfully and in accordance with the values espoused by its constitution. This leads into a more detailed discussion of the human rights implications of pandemics in Chapter Two (Pandemics and Human Rights:  Non-​Derogable Rights) and Chapter Three (Pandemics and Human Rights:  Derogable Rights), and the impact on democracy in Chapter Four (Pandemics and Democracy).

4

5

‘Coronavirus: Covid-​19 death toll hits 500,000 worldwide’, BBC News (28 June 2020):  accessed 28 June 2020. See Robert McGee, ‘How Accurate Is the Corona Virus Death Count? Some Disturbing Evidence’, SSRN (6 April 2020):  accessed 29 June 2020.

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The Pandemic State of Emergency

What is a state of emergency? The idea of ‘emergency’ is one that we encounter daily. Yet despite this omnipresence, emergencies should not be everyday occurrences; emergencies should be exceptional. From wars, natural disasters and terrorism; to the army, police, fire service and paramedics, ‘emergency’ is a powerful term, conjuring up vivid and emotive imagery. It is a term that refers both to an exceptional crisis and, importantly, to the exceptional response required to confront a particular threat. These two elements –​the phenomenon triggering the crisis and the response to this crisis –​are key to understanding states of emergency. This emotive force of the term ‘emergency’ is backed up by formidable fire-​power, when deployed in a legal context. A state of emergency is essentially a state’s way of responding to an extreme crisis. The entire point of declaring a state of emergency is to enable an exceptional response that is not permissible during a state of ‘normalcy’ –​a time when an emergency has not been declared. Without a response, a declaration of emergency is completely pointless. While it is rare for an emergency to be declared but for no action to be taken following this declaration, the recent trend of states declaring ‘climate emergencies’ may demonstrate this. In such instances, it would appear that the symbolism of declaring the emergency outweighs the practical legal ramifications –​a point that will be returned to in the concluding chapter of this book.6 An excellent illustrative example of states of emergency clauses can be seen from what are known as ‘derogation clauses’ in international human rights treaties. These clauses allow a state to depart –​or derogate –​from their obligations under the 6

See n 24, Chapter Six.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

treaty in question. Article 15.1 of the European Convention on Human Rights (ECHR), for example, states that: In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.7 Likewise, Article 4 of the International Covenant on Civil and Political Rights (ICCPR) allows for derogations in a time of ‘public emergency which threatens the life of the nation’.8 Importantly, neither treaty gives carte blanche to a state to react how it sees fit in a time of crisis; rather, any exceptional measures taken will only be permissible ‘to the extent strictly required by the exigencies of the situation’. Further, these treaties set out rights that can never be derogated from, such as the right to be free from torture and from inhuman and degrading treatment or punishment.9 Not all emergency clauses have such protections built in, however. Ireland’s emergency powers contained in Article 28.3.3° of its constitution state that ‘Nothing in this Constitution other than Article 15.5.2°’ can be invoked to invalidate emergency laws.10 Article 15.5.2° prohibits the introduction of the death penalty, but this was only added in 2002. Prior to this, the entire constitution was up for grabs

7

8 9 10

Article 15, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) as amended. Article 4, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. Article 15.2 ECHR; Article 4.2 ICCPR. Article 28.3.3° Constitution of Ireland.

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The Pandemic State of Emergency

during a state of emergency –​and Ireland had been in a state of emergency from the outbreak of the Second World War in September 1939 until February 1995.11 Despite these differences, we can nevertheless identify commonality between disparate clauses; principally, that a state of emergency should permit a response that is not ordinarily permitted by the legal parameters of normalcy. A state of emergency, therefore, is an exception; it constitutes an outlier to the status quo –​and this is key to why emergency powers are often controversial. If a state of emergency permits the impermissible, this raises the question of why such a response was impermissible in the first place. When talking about states of emergency contained in constitutions and international human rights treaties, the answer is because these responses encroach upon the very values that give these fundamental legal documents their identity; values like democracy, human rights, and the rule of law. They encroach upon the very constitutional checks and balances that were put in place to prevent the abuse of power by those in whom we entrust it. Essentially, constitutions and international human rights treaties contain locks that constrain state power; states of emergency hand over the keys of these locks to the very institutions they were trying to keep under control. Given the dangers inherent in emergency powers, this raises the question as to why constitutions and international human rights treaties contain them. The answer is that they are considered to be a necessity. States of emergency are an acknowledgement that there may be instances in which the state cannot protect and vindicate the values that it purports to espouse; further, if the state were to continue to insist on upholding these values, an even greater harm would occur. By ‘necessity’, I mean here a ‘constraint in choice’. In some instances, the state’s choice may be constrained to such an

11

Alan Greene, ‘The historical evolution of Article 28.3.3° of the Irish Constitution’ (2012), Irish Jurist, 47(117): 138–​139.

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extent that the government invoking the need for emergency powers claims that it has no choice, or that it has to choose between ‘the lesser of two evils’. What ultimately justifies or excuses the departure from these fundamental norms is that it is temporary; it should not constitute a permanent and irrevocable change. States of emergency, therefore, are temporary responses to exceptional temporary threats. For these reasons, I have defined a state of emergency for descriptive purposes as: A crisis identified and labelled by a state to be of such magnitude that it is deemed to cross a threat severity threshold, necessitating urgent exceptional and consequently temporary actions by the state not permissible when ordinary conditions exist.12 While defining an emergency as more or less a ‘crisis’ is not very helpful for illustrative purposes when trying to understand what kinds of threats can trigger emergency powers, this vagueness is deliberate; for emergencies, by their very nature, are unforeseen, exceptional threats. If ‘emergency’ is defined too narrowly, it may be the case that a novel, unanticipated threat materializes that this narrow definition cannot cover, and the exceptional powers needed to tackle this novel threat would not be available. Alternatively, the state would act anyway but without constitutional authorization, raising profound questions as to the legality and legitimacy of such a response. Broad definitions and broad conferral of discretionary power on officials to act during a time of emergency are therefore a feature, not a glitch, of emergency powers. It is important to stress, however, that this definition is for descriptive purposes only. It is not prescriptive; that is, one that states should

12

Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018), p 30.

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The Pandemic State of Emergency

incorporate into any legal document. Instead, it is designed to help us understand what we mean when we talk about states of emergency; it is to help us understand what we are studying. Declaring a state of emergency: who decides? By defining an emergency so broadly, this raises the question as to whether a crisis is actually severe enough to warrant the declaration of a state of emergency. While the decision maker may claim that they have no choice but to take the necessary action they did, the fact still remains that their decision was, nevertheless, a choice. This idea of the decision maker’s assessment as to the necessity of the measures taken raises the question as to whether the existence of a state of emergency is an ‘objective’ issue. In a time of war, for example, it may be clear that a state of emergency exists; however, not all crises may reach this paradigmatic example where there will be no dispute as to the existence of an emergency. In most instances, whether or not an emergency exists is not clear-​cut. To insist on the objectivity of the emergency is also to ignore the important point that the entire reason for declaring an emergency is to enable a necessary response. This concept of ‘necessity’ is instead directly affected by the objective that the person in question wants to achieve. This has led some to suggest that the concept of necessity is actually an entirely subjective one.13 This argument then leads one to either reject the concept of states of emergency altogether; or reject the idea of having any constraints on the decision maker declaring the emergency, and instead leaving the constitution at the mercy of those who were entrusted to protect it. My answer to this problem is to take a ‘constructivist’ approach to the question of the existence of an emergency.

13

Giorgio Agamben, State of Exception, trans. Kevin Atell (University of Chicago Press, 2005), pp 29–​30.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

Constructivism argues that there does exist an objective reality; however, our ability to perceive this objective reality is distorted by powerful subjective forces.14 Consequently, we must take account of both the observer and the observed, when constructing our theories. In the case of states of emergency, one must be aware of both the objective phenomenon triggering the emergency, and the subjective forces affecting the decision makers’, and indeed our own, perceptions of this phenomenon. Therefore, ideally, the existence of a state of emergency is an objective question; however, there are powerful subjective forces at play that affect a decision maker’s perception and ultimate decision.15 This problem of subjectivity is even more acute when we consider that under most constitutions today, those who declare a state of emergency often gain power as a result of this. This perverse incentive creates an acute risk of abuse of power. This risk was all too obvious for the citizens of the Roman Republic, when designing their constitutional emergency response. Indeed, the model that the Roman Republic deployed formed the basis for modern constitutional emergencies today: the Roman dictatorship.16 The Roman Republic consisted of a complex system of checks and balances, designed to ensure that one individual never achieved absolute power. This distain for, and distrust in, absolute power was built into the founding myth of the 14

15 16

See Friedrich Kratochwil, ‘Constructivism: What it is (Not) and Why it Matters’ in Michael Keating and Donatella Della Porta (eds), Approaches and Methodologies in the Social Sciences: A Pluralist Perspective (Cambridge University Press, 2008), pp 80–​99. Greene (n 12, Chapter One), pp 49–​50. See Oren Gross and Fionnuala Ni Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006), pp 17–​26; Clinton Rossiter, Constitutional Dictatorship:  Crisis Government in the Modern Democracies (Princeton University Press, 1948), pp 15–​28; Nomi Claire Lazar, States of Emergency in Liberal Democracies (Cambridge University Press, 2009), Ch 5.

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The Pandemic State of Emergency

Republic, where the Republic was established following the expulsion of the tyrant Roman king Tarquinius Superbus.17 To avoid absolute power, the most powerful office of the Roman Republic –​the Consulship –​was held not by one man, but by two men who were both elected for one-​year terms of office. Each consul also had a veto over the other.18 In times of emergency, however, such dispersed power and divided leadership could be catastrophic. Therefore, the Roman Republic would appoint a temporary dictator who was freed from the ordinary constitutional norms and could do what needed to be done to respond to the threat. The dictator was free from the veto of the consulship and had the power of life and death over Roman citizens. His judgment was not subject to appeal (provocatio) –​ a fundamental and sacrosanct right of the Roman citizen that was considered the main legal protection against tyranny.19 Yet even with what looked like absolute power, the Republic’s fear of tyranny was evident and there were, in fact, several checks on this power. First, the Republic operated a system known as ‘heteroinvestiture’, which separated the decision of whether a dictator was needed from the decision of who would become dictator.20 Consequently, the Senate decided that a dictator was needed and the consuls appointed the person, but they could not appoint themselves. In this way, the Republic sought to avoid the possibility of somebody gaining power themselves by declaring an emergency. Further,

17 18 19

20

Andreas Kalyvas, ‘The Tyranny of Dictatorship: When the Greek Tyrant Met the Roman Dictator’ (2007), Political Theory, 35(412): 428. See Herbert Felix Jolowicz, Historical Introduction to the Study of Roman Law (Cambridge University Press, 1965), Ch 2. Benjamin Straumann, Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution (Oxford University Press, 2016), p 65. John Ferejohn and Pasquale Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers’ (2004), International Journal of Constitutional Law, 2(210): 218.

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once a dictator was appointed, their maximum term of office was six months. The dictator could not extend their term, nor could they appoint a successor.21 It was also the case that the dictator could not make any permanent laws; once the emergency was over and the dictator abdicated, no legal trace of their term of office remained. Indeed, it was often the case that a dictator would step down sooner than the six months, once the threat was defeated. The most famous example of this was the legendary Cincinnatus, who abdicated his dictatorship after just 15 days and returned to work on his farm. Today, constitutions rarely create a separate legal emergency office like the Roman dictator; rather, existing institutions gain additional powers in an emergency. The principle of heteroinvestiture has been either abandoned or significantly watered down. A common trend today is for the executive to be empowered to declare the emergency. This is then subject to subsequent legislative approval and oversight.22 Other constitutions may confer the power to declare the emergency on the legislature, but these constitutions may also include another clause allowing the executive to act without prior legislative approval.23 Often, these constitutions are in operation in parliamentary democracies where the legislature and executive are fused, so the executive tends to have an in-​built majority in the legislature.24 21

22 23

24

Rossiter (n 16, Chapter One), pp 23–​36; Niccolò Machiavelli, The Discourses [1531], Bernard Crick (ed.), trans Leslie J Walker (Penguin, 1998), p 194. See, for example, Art. 352 Constitution of the Republic of India: 26 January 1950 (as Amended to 28 May 2015). See, for example, Article 28.3.3° of the Irish Constitution, which empowers the Oireachtas (the Irish bicameral legislature) to declare a state of emergency, but Article 28.3.2° in the case of ‘actual invasion’ empowers the Government to take ‘whatever steps they may consider necessary for the protection of the State’ and the legislature must be reconvened at the earliest practicable date. See n 23, Chapter One.

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The Pandemic State of Emergency

So why is the executive trusted to act in an emergency? As emergencies necessitate a quick response, the executive is the branch of government best placed to deliver this. In general, executives are free from the formal decision-​making processes and ideological differences that are endemic to legislatures. The executive also meets in secret, so it is considered to be the most suitable forum for hearing matters that are sensitive to national security and for secret intelligence briefings to take place.25 This consolidation of power or of streamlined decision-​ making processes is a feature of all emergency responses, not just constitutionally declared states of emergency. Many emergency preparedness plans by different organizations and state authorities, for example, have in place a streamlined decision-​ making process in a time of emergency.26 Today, therefore, it is the executive whose power expands in a time of emergency and the executive that is the most influential body involved in declaring the emergency. For these reasons, it is vital that there are rigorous checks and balances on the decision to declare a state of emergency and on the measures taken in lieu of this declaration. This, ultimately, is a key theme of this book:  should the executive gain additional powers in a time of pandemic and, if so, what checks on these powers should be in place? Chapter Two (Pandemics and Human Rights: Non-​Derogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights), looking at human rights, explore what tools the judiciary has at its disposal to keep emergency powers in check during a pandemic emergency. In turn, Chapter Four (Pandemics and Democracy) considers the functioning of democracy and the legislature, and whether the legislature

25 26

Gross and Ní Aoláin (n 16, Chapter One), p 65. See David Mendonça, Giampiero EG Beroggi and William A Wallace, ‘Decision support for improvisation during emergency response operations’ (2001), International Journal of Emergency Management, 1(1): 30.

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should confer additional powers on the executive to respond to a pandemic and, if so, what role the legislature can play in keeping these powers in check. Pandemics as a state of emergency As COVID-​19 spread throughout the world in 2020, states leapt to action. The risk that COVID-​19 posed to life would suggest that it comes close to an ‘ideal’ state of emergency; there could be little dispute as to its existence and it is a threat that requires exceptional steps to be taken by the state to confront it.27 Moreover, failure to react would lead to even greater destruction and suffering. One would expect, therefore, that not only can a pandemic trigger a state of emergency, the objectivity of this threat would render the subjective forces that affect whether an emergency is declared or not either weak or non-​existent. Yet despite this, subjective forces were clearly evident in states’ responses to COVID-​19. Even the concept of a pandemic itself is fraught with subjective factors, as evidenced by the debates over its definitional complexity and whether to declare COVID-​19 a pandemic or not. The WHO, for instance, defines a pandemic as ‘the worldwide spread of a new disease’.28 The Dictionary of Epidemiology complements this definition, stating that a pandemic is ‘an epidemic occurring worldwide or over a very wide area, crossing international boundaries and usually affecting many people’.29 An epidemic 27

28

29

Greene (n 12, Chapter One); see also Alan Greene, ‘Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic:  If Not Now, When?’ (2020), European Human Rights Law Review, 263, 272. ‘What is a Pandemic?’, World Health Organization (24 February 2010):  accessed 29 June 2020. JM Last (ed.) A Dictionary of Epidemiology (4th edn) (Oxford University Press, 2001).

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The Pandemic State of Emergency

is itself defined in the Dictionary of Epidemiology as ‘a widespread occurrence of a disease’ and so is more geographically limited in scope than a pandemic.30 Key to these definitions, according to De Campos (2020) is the idea of ‘spread’. Pandemics are thus ‘the spread of a new disease, over a wide area, and crossing international boundaries’.31 In addition to viral pandemics caused by H1N1 Influenza (2009), Ebola (2014) and Zika (2016), the WHO has also warned about other epidemic diseases, such as diabetes, obesity and substance abuse.32 De Campos argues, however, that this emphasis on the spread of the disease ignores the varying degree of severity that each disease may cause. Thus, the WHO’s decision in 2009 to declare H1N1 influenza a pandemic was subject to criticism, because it had altered its previous definition of an influenza pandemic by removing the requirement that a pandemic should cause ‘enormous numbers of deaths and illness’. This enabled it to declare an influenza pandemic when ‘a new influenza virus appears against which the human population has no immunity’.33 This decision was criticized, because that particular outbreak had far less serious consequences than experts had predicted. This, in turn, led to decreased trust in the WHO and to allegations of ties between WHO advisors and the pharmaceutical industry.34 For our purposes, factoring in this severity aspect of a disease is fundamental to understanding whether a pandemic requires an exceptional emergency response.35 In this regard, 30 31

32 33 34 35

See n 29, Chapter One. Thana C De Campos, ‘The Traditional Definition of Pandemics, Its Moral Conflations, and Its Practical Implications:  A Defense of Conceptual Clarity in Global Health Laws and Policies’ (2020), Cambridge Quarterly of Healthcare Ethics, 29(205): 206. See n 31, Chapter One, p 209. Peter Doshi, ‘The elusive definition of pandemic influenza’ (2011), Bulletin of the World Health Organization, 89(532): 532. See n 33, Chapter One. See n 33, Chapter One.

19

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COVID-​19 satisfies De Campos’s more stringent definition of a pandemic, and all future pandemics requiring exceptional emergency responses from the state should satisfy this definition also. Not only does COVID-​19 spread rapidly and easily from person to person, transcending international borders and pervading the globe, but it also has serious health implications with the potential to cause significant loss of life. These serious health implications, and the significant loss of life that would occur without a swift and decisive response, are precisely why COVID-​19 warranted an exceptional emergency response. The exceptional emergency response to COVID-​19 Doshi (2011) argues that statements from the WHO declaring the 2009 H1N1 influenza a pandemic: suggest that pandemics are something inherently natural and obvious, out there in the world and not the subject of human deliberation, debate and changing classificatory schemes. But what would and would not be declared a pandemic depends on a host of arbitrary factors such as who is doing the declaring and the criteria applied to make such a declaration.36 Doshi was writing in the context of the debate over the H1N1 flu virus of 2009. In 2020, the debate as to whether COVID-​19 satisfied the definition of a pandemic was moot, as:  it was widespread across the globe; it caused enormous numbers of deaths and illness; and the human population had no immunity to it. That stated, declaring a pandemic was still not a straightforward assessment of the objective impact of COVID-​19. Senior WHO official Michael Ryan, for

36

See n 33, Chapter One, p 534.

20

The Pandemic State of Emergency

example, cautioned against declaring a pandemic too soon, as this may have prompted governments to ‘needlessly or prematurely change their strategies in ways that could undermine their efforts at containment’.37 At the time, the WHO was encouraging states to take ‘containment’  –​rather than the more severe ‘mitigation’ –​steps to control the pandemic, and avoid implementing what it considered ineffective strategies such as banning incoming flights from infected countries or airport screening facilities.38 What this shows is that the concept of a pandemic –​and the declaration of a pandemic –​is as much about the response needed to tackle the pandemic as it is about the phenomenon (the nature of the virus) triggering the declaration. COVID-​ 19 was not a unique threat because it was a pandemic. What makes it different compared to the pandemics such as HIV and obesity is the manner in which it spreads. SARS-​CoV-​2 spreads primarily from person to person in close contact with each other ‘through small droplets from the nose or mouth, which are expelled when a person with COVID-​19 coughs, sneezes or speaks’.39 COVID-​19, therefore, is different to other virulent diseases such as HIV, which is a communicable disease that spreads primarily through the exchange of certain bodily fluids of people living with HIV, including blood, semen, vaginal fluids, rectal fluids and breastmilk.40 HIV thus requires much closer intimate

37 38 39

40

Editorial, ‘COVID-​19, a pandemic or not?’ (2020), The Lancet: Infectious Diseases, 20(4): 383. See n 37, Chapter One. ‘Q&A on coronaviruses (COVID-​19)’, World Health Organization (17 April 2020):  accessed 4 June 2020. ‘How is HIV Transmitted?’, HIV.gov (24 June 2019):  accessed 29 June 2020.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

contact between people to spread, for example, through sexual intercourse, or through the sharing of needles, syringes or blood transfusions contaminated by HIV.41 In contrast, given the easy manner in which COVID-​19 spreads, the infection rate has the potential to grow exponentially and rapidly, overwhelming hospitals and other state infrastructure. This rate of transmission can be expressed through what is known as the ‘reproduction number’ (‘R number’), which is ‘the average number of secondary cases caused by one infected individual in an entirely susceptible population’.42 If the R number is greater than one, this means that the average infected person is infecting more than one person. Consequently, the rate of infection will grow. The most comparable epidemics similar to COVID-​19, therefore, are those caused by other coronaviruses such as SARS or MURS, and pandemics caused by certain influenza strains. In order to respond to COVID-​19, the WHO splits measures into two separate stages: the containment stage; and the mitigation stage.43 In the containment state, countries try to take steps to prevent transmission of the virus in the community. These steps include: large-​scale testing and tracing of suspected infected individuals, and those with whom they have come into contact; and the requirement for quarantine or self-​ isolation. When a pandemic progresses to the stage where there 41

42

43

‘HIV/​A IDS Q&A’, World Health Organization (27 November 2017):  accessed 4 June 2020. Anna Mummert, Howard Weiss, Li-​Ping Long, José M Amigó, Xiu-​ Feng Wan, ‘A Perspective on Multiple Waves of Influenza Pandemics’ (2013) PLOS One, 8(4):  1, 10. See also:  JAP Heesterbeek, ‘A brief history of Ro and a Recipe for its calculation’ (2002) Acta Biotheoretica, 50(3): 189; and Adam Kucharski, The Rules of Contagion (Profile Books, 2020), pp 54–​57. Managing Epidemics: Key Facts about Major Deadly Diseases, World Health Organization (2018):  accessed 29 June 2020, p 28.

22

The Pandemic State of Emergency

is significant transmission in the community, the response shifts towards mitigation. Mitigation relies on ‘nonpharmaceutical interventions such as hand hygiene, travel restrictions, school closures, and social distancing’.44 An effective containment stage may, therefore, stave off the need for a mitigation stage. Where mitigation is required, social distancing measures work by trying to reduce the R number down below one. It is because COVID-​19 is easily spread from person to person that mitigation measures, such as the closure of schools and social distancing, are necessary. It is also what distinguishes the need for these responses from other diseases such as HIV which, due to the manner in which they spread, would not be affected by social distancing measures. State responses to the COVID-​19 pandemic have varied dramatically. While this variability may be explained by the severity of the outbreak or the stage of progression of the pandemic in a state, this is absolutely not the entire picture. Politics and ideology have undoubtedly affected responses too. China, where COVID-​19 first emerged, enacted some of the strictest measures seen to date in Wuhan province. Public events were cancelled and public spaces were closed; people were given a permission card and could only leave their home every second day for a maximum of 30 minutes.45 At the other end of the scale, Brazil took minimal –​if any –​response measures. Brazilian President Jair Bolsonaro went so far as to describe the threat from COVID-​19 as ‘overstated’ and ‘a fantasy’ although he himself then contracted the virus in July

44

45

Rachel P Walensky and Carlos del Rio, ‘From Mitigation to Containment of the COVID-​19 Pandemic: Putting the Sars-​CoV-​2 Genie Back in the Bottle’ (2020) Jama Network, 323(19): 1889. Hien Lau, Veria Khosrawipour, Piotr Kochbach, Agata Mikolajczyk, Justyna Schubert, Jacek Bania and Tanja Khosrawipour, ‘The Positive impact of lockdown in Wuhan on containing the COVID-​19 outbreak in China’ (2020), Journal of Travel Medicine, 27(3): 1, 1–​2.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

2020.46 At a time when Brazil had over 500,000 cases and the fourth highest death toll in the world, rather than enacting emergency measures to confront the pandemic, Bolsonaro instead chose to clash with local authorities trying to implement lockdown measures.47 Implementing responses to the pandemic emergency through law The legal form in which these different responses to COVID-​19 were enacted has also varied from state to state –​ and even within states. Some states declared emergencies in line with their respective constitutional provisions.48 Some have also derogated from international human rights treaties such as the ECHR and the ICCPR. With regard to the ECHR, only 10 out of the 47 contracting states derogated from the Convention and declared a state of emergency under Article 15:  Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia.49 Other 46

47

48

49

Thomas da Rosa de Bustamante and Emilio Peluso Neder Meyer, ‘Bolsonarism and COVID-​19: Truth Strikes Back’, International Journal of Constitutional Law Blog (24 March 2020):  accessed 2 June 2020. Fraser Jackson, ‘Pro and anti-​Bolsonaro rallies erupt in Brazil as COVID-​ 19 cases pass 500,000’, France 24 (1 June 2020):  accessed 2 June 2020. For a detailed analysis of various states’ legal responses to COVID-​19, see Joelle Grogan, ‘Introduction and List of Country Reports’, Verfassungsblog (6 April 2020):  accessed 29 June 2020. Reservations and Declarations for Treaty No.005 -​Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe (Status as of 29 June 2020):  accessed 29 June 2020.

24

The Pandemic State of Emergency

states, such as Italy and Spain, declared emergencies under their constitution, but did not derogate from international human rights treaties, sending the mixed signal that a state of emergency existed under the constitution, but a state of normalcy existed under international human rights law.50 Some states did not declare a state of emergency at all, instead introducing exceptional new powers through legislation –​what is known as the ‘legislative accommodation’ model of responding to emergencies.51 There are a number of different reasons why states choose to respond to crises in these different ways, and a further key theme of this book is to understand the different implications of each model, when deployed in response to a pandemic. ‘Business as usual’ models

Not all constitutions or international human rights treaties make provisions for emergency powers. The African Charter on Human and Peoples’ Rights, for example, contains no derogation clause. Famously, the US Constitution is also silent when it comes to emergency powers. Save for the suspension of habeas corpus in a time of war, it makes no additional provision for exceptional powers in a time of crisis. This led the US Supreme Court to state that ‘the same law in war applies in peace’.52 This ‘business as usual’ approach to emergencies is superficially attractive.53 On the face of it, constitutional values like human rights and the separation of powers are protected to the exact same extent and standard in a time of emergency as they 50

51 52 53

Alan Greene, ‘State of Emergency: how different countries are invoking extra powers to stop the coronavirus’, The Conversation (30 March 2020):  accessed 29 June 2020. Ferejohn and Pasquino (n 20, Chapter One), p 217. Ex Parte Milligan (1866) 71 US (4 Wall) 2, 120–​121. Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’ (2002–​2003), Yale Law Journal,112 (1011): 1043–​1053.

25

EMERGENCY POWERS IN A TIME OF PANDEMIC

are in a time of normalcy; from the constitution’s perspective, there is no such thing as emergency. This attractiveness is further compounded by the numerous examples from history of claims to emergency powers being egregiously abused. The abuse of the archetypal emergency response of the Roman dictatorship, by Julius Caesar, played a key role in the collapse of the Roman Republic and the rise of the Roman Empire –​one of the most famous and most studied moments in all of history.54 There are other devastating examples too. Article 48 of the German Weimar Constitution was frequently deployed in the 1920s by the German Chancellor to tackle the financial crisis faced by Germany and to circumvent the parliamentary impasse caused by the opposing factions of the communists and national socialists.55 The precedent set down by the use of Article 48 in this way, paved the way for the rise of Adolf Hitler who, following the Reichstag Fire on 27 February 1933, convinced the German Parliament to pass the Enabling Act, allowing him to rule by decree indefinitely. The Weimar constitution, considered at the time of its enactment to be the pinnacle of liberal constitution making, would remain, technically, in effect for the duration of the Second World War. More recently, during the COVID-​19 pandemic, Hungary enacted worrying constitutional changes to its emergency powers that would allow its prime minister, Victor Orbán, to rule by decree without an express time limit until parliament revoked it. While parliament ultimately lifted this declaration, the spectre of Weimar still hangs over Hungary’s constitution.56 54 55 56

Machiavelli (n 21, Chapter One), p 194. Rossiter (n 16, Chapter One), pp 117–​27. Renáta Uitz, ‘Pandemic as Constitutional Moment’, Verfassungsblog (24 March 2020):  accessed 4 July 2020; Gabor Tanacs and Natalie Huet, ‘Hungary ends emergency powers but new law opens up potential to re-a​ pply them’ Euronews (17 June 2020):  accessed 4 July 2020.

26

The Pandemic State of Emergency

In this historical context, it is easy to see how ‘business as usual’ models are attractive. They appear to be a bold commitment to vindicating and defending the very values that give a constitution  –​or an international human rights treaty  –​its identity. This, however, did not stop the US Supreme Court infamously upholding the constitutionality of the internment of all US-​born citizens of Japanese dissent in concentration camps for the duration of the Second World War.57 Consequently, rather than ensuring that human rights protections in an emergency are of the same standard as in normalcy, the opposite may occur under ‘business as usual’ models, and the constitutional protections of ‘normalcy’ are re-​calibrated downwards, so as to permit the previously impermissible. This principle, then, in the words of the dissenting Supreme Court judge Robert Jackson J: lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.58 A key advantage, therefore, of expressly –​or de jure –​declared states of emergency is the clear distinction that they draw between normalcy and emergency. States of emergency ‘quarantine’ exceptional powers to exceptional situations. From a constitutional perspective, states of emergency act like a sword: they have the potential to cut through constitutional norms, such as human rights and the separation of powers. But states of emergency can also act as a shield, protecting these norms in a time when an emergency has not been declared.

57 58

Re Korematsu (1944) 323 US 214. Re Korematsu (1944) 323 US 246.

27

EMERGENCY POWERS IN A TIME OF PANDEMIC

The trick is to ensure that whoever is wielding the sword is sufficiently controlled. Emergency legislation: the ‘legislative accommodation’ model

‘Business as usual’ approaches to emergency can also lead to additional laws in a time of crisis, however. In this regard, a recurring pattern for the provision of emergency powers over the past century is not through the formal declaration of a state of emergency but through the enactment of special emergency legislation.59 This ‘legislative accommodation’ approach maintains the insistence at the constitutional level that a state of normalcy exists; however, the exceptionality of the legislation is reinforced by additional safeguards, such as express expiration dates (known as ‘sunset clauses’) or requirements for parliamentary oversight and renewal debates after a certain period of time.60 How this legislation is enacted may also illustrate its emergency status. The government proposing the legislation may insist, for example, that there is no time to waste for the normal debating period. In a parliamentary democracy such as in the UK, this often results in debate time being cut short (‘guillotined’) and strict ‘whipping’ procedures being put in place to ensure that government-​supporting parliamentarians vote with the government.61 That stated, there is still no express ‘quarantine’ around this legislation, as there is when a state of emergency is declared. As we will see in Chapter Four (Pandemics and Democracy), this was

59 60 61

Ferejohn and Pasquino (n 20, Chapter One), p 215. See John Ip, ‘Sunset Clauses and Counterterrorism Legislation’ (2013), Public Law, 74. Fiona de Londras and Fergal F Davis, ‘Controlling the Executive in Times of Terrorism:  Competing Perspectives on Effective Oversight Mechanisms’ (2010), Oxford Journal of Legal Studies, 30(1): 19, 34 (per de Londras).

28

The Pandemic State of Emergency

a common approach taken to emergency powers during the COVID-​19 pandemic. Like ‘business as usual’ models, the ‘legislative accommodation’ model is intrinsically attractive, because new powers are introduced but under the premise that the constitution is still functioning; further, legislative approval of the new powers gives them the stamp of democratic legitimacy.62 Yet herein also lies the problem of the legislative model. By reassuring us of both their necessity and their democratic legitimacy, these powers may be more susceptible to becoming permanent, as they look more ‘normal’ than a constitutionally declared state of emergency –​a point that will be returned to in the concluding chapter.63 The signal sent by declaring a state of emergency As the entire purpose of declaring a state of emergency is to facilitate a response, the efficacy and popularity of such a response can, in turn, be affected by the symbolism and emotive force of the rhetoric of emergency. During the COVID-​19 pandemic, some commentators argued against derogating from international human rights treaties. Romanian MEP Ramona Strugariu, for example, argued that ‘It is a very dangerous precedent and at the same time a very weak political signal to first think of a situation where you intend to derogate from the ECHR’.64 Strugariu further suggested that states with weak human rights records, such as Turkey, were ‘frequent claimers’ of derogation.

62 63 64

Ferejohn and Pasquino (n 20, Chapter One), pp 216–​218. See from to n 10 in Chapter Six. Vlagyiszlav Makszimov, ‘Coronavirus derogations from human rights send wrong signal, say MEPs’, Euractiv (25 March 2020):  accessed 4 July 2020.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

A similar concern was echoed by Merris Amos, who argued that there were numerous strategic and political problems with derogating and with the message this sends out. Referring to the possibility of the UK derogating, Amos argued that: For the people of the UK to be told that their current human rights are to be suspended, even if this is only a limited suspension, will escalate the current panic even further. For the UK to derogate, when France, Italy or Spain have not, also sends the wrong message to less liberal states. This is also a rapidly changing situation with no clear end in sight. A new derogation may have to be made and approved by Parliament every month or couple of weeks. Once the immediate and overwhelming threat to life is over, it is likely that serious interferences with private life, such as surveillance and access to medical records, will be necessary to enable some sort of normal life to resume. Whilst many may welcome a derogation in the present circumstances, to suspend the right to private life indefinitely to facilitate this carries numerous risks.65 Due to the powerful subjective forces that affect declarations of emergency –​and the emergency responses and powers that such declarations unleash –​people are correct to be sceptical of governments declaring a state of emergency. That stated, there are a number of key problems with this argument. First, by emphasizing the symbolism of such a declaration, they downplay the actual impact that new powers enacted during a pandemic have on people’s rights. Simply failing to expressly acknowledge the exceptional nature of such powers does not somehow mitigate this actual impact.

65

Merris Amos, ‘Human Rights Law and the COVID-​19 Pandemic in the United Kingdom Part 1’, SSRN (15 April 2020):  accessed 29 June 2020, p 2.

30

The Pandemic State of Emergency

Second, there is little evidence to corroborate the claim that the legal act of derogating from an international treaty automatically sends out a politically forceful signal to people that their rights are being impacted upon. What sends out the signal that a person’s rights are being infringed upon is that very act; it is the new powers that are enacted and that have to be communicated to people. There is also little evidence to suggest that acknowledging that rights are being derogated from will somehow cause people to panic or refuse to abide by the new emergency laws. Instead, evidence suggests that the best method to prevent panicking and to ensure compliance with social distancing measures, is clear, consistent messaging; not the failure to call a spade a spade.66 What should be deeply worrying, instead, is the implementation of these exceptional powers, but without the quarantining effect of a de jure state of emergency. Third, there is also very little evidence to suggest that law can shape and frame political discourse on an issue; rather, the opposite is often the case –​political discourse instead shapes and frames law, and how subsequent legal actors interact with this law.67 This means that politicians using the language of ‘emergency’ and ‘threat’ without actually declaring a de jure state of emergency can influence judges to be more deferential in how they scrutinize these powers. Politicians, specifically the executive, are the ‘rhetors’ (teachers of rhetoric) who shape and frame public debate.68 This can already be seen from some

66

67

68

Silas Scott, ‘From “stay at home” to “stay alert”:  The importance of language in the UK government’s COVID-​19 response’, LSE Media Blog (14 May 2020):  accessed 27 June 2020. Oren Gross and Fionnuala Ní Aoláin, ‘The Rhetoric of War: Words, Conflict, and Categorisation Post-​9/​11’ (2014), Cornell Journal of Law and Public Policy, 24: 241, 247. See n 67, Chapter One.

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of the UK case law on COVID-​19 powers, where a judge incorrectly interpreted the ECHR as if a derogation had been in place, even though one had not been declared.69 In sum, politics shapes law; not the other way around. Fourth, concern with regard to the fact that other states have not derogated from the ECHR is also misplaced, when one looks at the fact that many of these states have declared emergencies in accordance with their own constitutional provisions. Italy and Spain, two such countries which Amos gives of states which did not derogate from the ECHR and which the UK should emulate did, in fact, both declare constitutional states of emergency.70 Is the signal that a state is derogating from an international human rights treaty somehow more dangerous and panic-​inducing than a declaration that the state is departing from constitutional norms that include not only human rights provisions but also separation of powers and democratic provisions too? This argument, I submit, is untenable. Conclusions It is certainly the case that pandemics can trigger states of emergency. Pandemics are exceptional threats and, in the context of a disease such as COVID-​19, an exceptional response is needed, in order to break the social ties that exist between us, to prevent the virus spreading. The question, however, of whether states should use de jure states of emergency to implement these exceptional laws –​and, if so, what form these laws should take –​is much more complex. Consequently, states’ responses to the COVID-​19 pandemic varied on this very issue. As we shall see in the next two chapters, debate abounds as to whether states should have declared emergencies and should have derogated from international human rights treaties such

69 70

BP v Surrey County Council [2020] EWCOP 17, [27]. See n 50, Chapter One.

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The Pandemic State of Emergency

as the ECHR and the ICCPR. Ultimately, I  contend, the quarantining effect of a de jure state of emergency should be utilized, to ensure that these exceptional powers are only used in the exceptional situation of a pandemic. The risk is not necessarily that pandemic emergency powers will themselves not be relinquished; rather, the key dangers of these powers lie in the precedent set down by their introduction without a de jure declaration of a state of emergency.

33

TWO

Pandemics and Human Rights: Non-​Derogable  Rights

Introduction As emergency powers impact upon the most fundamental values in a legal order, this chapter and Chapter Three (Pandemics and Human Rights: Derogable Rights) explore the effect that pandemic emergency powers can have on human rights norms. Focus is not simply on the states that have officially declared states of emergency or derogated from international human rights treaties, as there is no necessary correlation between the impact that these measures have on human rights and whether a state has derogated or not. While this is not the place for an in-​depth discussion of the different theories of human rights, some articulation is, nevertheless, necessary in order to establish a framework against which pandemic emergency powers can be appraised. Here, I argue that human rights work best when they are understood as having an emancipatory potential –​when they are viewed as requiring the state not just to refrain from interfering with a person’s life, but also to take positive steps to empower a person to take control of their life. In contrast, a libertarian conception of rights as simply injuncting the state from acting would be incapable of effecting an adequate response to the

35

EMERGENCY POWERS IN A TIME OF PANDEMIC

pandemic, as evidenced by protesters refusing to wear masks that can impede the spread of the virus.1 This ‘emancipatory potential’ of human rights also shapes who is empowered to make decisions about rights in a state. On this point, I argue that all branches of government –​legislature, executive and judiciary –​must take this this obligation seriously. In this way, constitutional norms are best protected when this ‘culture of justification’ is established. These two concepts –​the emancipatory potential of human rights; and a culture of justification –​shape my analysis of the impact of pandemic responses on these rights. This chapter focuses on non-​derogable rights –​rights whose protection cannot be affected by the declaration of a de jure state of emergency. As I will show, these rights are particularly important in a pandemic, and place significant duties on the state to protect and vindicate these rights. This further demonstrates that, even with a de jure declared state of emergency, robust human rights protection can –​and should –​be in place. This then leads into the discussion in Chapter Three (Pandemics and Human Rights: Derogable Rights) of derogable rights –​rights whose protection can be affected by the declaration of a state of emergency. What are human rights? The modern international human rights movement emerged from the ashes of the Second World War; as a philosophical, political and legal concept, however, human rights long predate this. Prior to 1945, some states already had entrenched constitutional provisions protecting certain constitutional rights and empowering courts to invalidate legislation incompatible with

1

Henry Mance, ‘Why the libertarians are foolish about face masks’, The Financial Times (24 July 2020):  accessed 5 August 2020.

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Pandemics and Human Rights: Non-Derogable Rights

these rights. The history of human rights, however, goes back even further than this. Magna Carta, is often invoked as the progenitor of the international human rights movement, even though it essentially amounted to a feudal peace treaty. Yet it was the hint of ideals that underpinned Magna Carta that took on a life of their own. They were deployed by Edward Coke in his famous condemnations of King Charles I in the 1600s, and by the founding fathers of the United States in their Declaration of Independence over a century and a half later.2 This, in turn, would inspire one of the most important documents to emerge from the French Revolution: the Declaration of the Rights of Man. Article 1 of this declaration famously mirrors the US Declaration with the statement that ‘men are born and remain free and equal in rights’ (Les hommes naissent et demeurent libres et égaux en droits).3 Yet even Magna Carta is not the starting point for understanding human r ights  –​ and specifically for understanding human rights in a time of emergency. As mentioned in Chapter One (The Pandemic State of Emergency), when the Roman Republic appointed a dictator in an emergency, his decisions could not be appealed against.4 Even when Roman consuls purported to act out of necessity in a time of severe crisis, carrying out a sentence without the right of appeal (provocatio) was gravely unconstitutional. It was for this reason that Cicero was banished from the Republic, following his ordering of the summary

2

3 4

John Baker, The Reinvention of Magna Carta 1216–​1616 (Cambridge University Press, 2017), Ch 9; HD Hazeltine, ‘The Influence of Magna Carta on American Constitutional Development’ (1917), Columbia Law Review, 17(1): 1, 22. Ian Davidson, The French Revolution: From Enlightenment to Tyranny (Profile Books, 2017), p 36. See n 19, Chapter One; also Benjamin Straumann, Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution (Oxford University Press, 2016), p 65.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

execution of Catiline, despite the evidence that Catiline was plotting to overthrow the Republic.5 Provocatio is one example of how rights or ‘liberty’ in the ancient world were closely linked to the idea of a fair hearing and public voice. From this, Benjamin Constant famously distinguished ‘the liberties of the ancients’, such as that of the ancient democratic Greek city states and the Roman Republic, from that of ‘the moderns’ or post-​enlightenment Europe and the US.6 The former placed emphasis on political participation, conceptualizing liberty as a right to participate in public life and to vote, either directly or for representatives. In contrast, the ‘liberty’ to emerge from the enlightenment and bourgeois economic and political revolutions of the 17th and 18th centuries was a liberty that stressed a zone of personal autonomy, drawing a clear demarcation between the public and the private. This personal liberty injuncted state power from interfering in this inviolable zone of personal autonomy, leaving a person free to do as they pleased, as long as they did not interfere with another person’s liberty.7 Today, human rights are an amalgamation of this political and personal liberty  –​and equally demonstrate a tension between these two concepts. What can be termed ‘civil and political rights’, for example, protect the right to privacy, private property and personal autonomy, while also empowering political participation through the protection of the right to expression, the right to assembly, and the right to vote in free

5

6

7

Oren Gross, ‘Extra-​Legality and the Ethic of Political Responsibility’ in Victor V Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), pp 69–​71. Benjamin Constant, The Liberty of Ancients Compared with that of Moderns (1819), Online Library of Liberty:  accessed 30 June 2020. Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) p 35.

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Pandemics and Human Rights: Non-Derogable Rights

and fair democratic elections.8 A  further tension in human rights is revealed by this connection between liberalism and its bourgeois origins. As Inga Markovits argues: As individual entitlements, bourgeois rights confer autonomy in a limited area, which then can be exercised at the discretion of the rightholder. In a way, all bourgeois rights are modelled after property rights:  they map out territory, set up fences against prospective intruders or, to quote Marx, they delineate the elbow room of the individual capitalist. Bourgeois rights are meant to be weapons; their cutting edge is their enforceability.9 In contrast, Markovits describes what she terms ‘socialist rights’ as ‘policy pronouncements’, setting standards for desirable goals and behaviour, rather than protecting individual autonomy.10 Such rights, today better known as socioeconomic rights, protect values such as the right to food, housing, education and health. Moreover, they require state resources to realise them. As we shall see, this connection between civil and political rights on the one hand and private property on the other plays an important role in enabling us to understand some of the human rights arguments deployed in opposition to strong government powers to tackle a pandemic. Yet, ultimately, I will argue that this claim –​that civil and political rights do not place duties on the state to act –​is untenable.

8

9 10

Sarah Joseph and Melissa Castan, International Covenant on Civil and Political Rights:  Cases, Materials and Commentary (3rd edn) (Oxford University Press, 2013), pp 157–​160. Inga Markovits, ‘Socialist vs Bourgeois Rights –​An East-​West German Comparison’ (1978), University of Chicago Law Review, 45: 612, 614. See n 9, Chapter Two, p 615.

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Sources of international human rights norms On 10 December 1947, the United Nations (UN) adopted the Universal Declaration of Human Rights. While not legally binding, the potency of its symbolism would come to match that of Magna Carta. The document formed the basis of two subsequent human rights treaties that would have legal force: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights.11 The reason for drafting two treaties rather than one was due to the disagreement over the nature of the rights to protect. While the Second World War was fresh in the drafters’ minds, the Cold War also provided the international backdrop to these negotiations. Civil and political rights were thus seen to be of immediate applicability, as they only required states to refrain from interfering with rights, rather than taking cumbersome steps to implement them. In contrast, economic and social rights, such as the right to education and the right to housing, required budgetary commitments to realise them, hinting at potentially socialist undercurrents. Thus, while civil and political rights required states to refrain from acting, socioeconomic rights placed a duty on states to act. The Cold War and the aftermath of the Second World War also provided the backdrop to the drafting of the European Convention on Human Rights (ECHR). Adopted in 1950, the ECHR protects and vindicates the civil and political rights and establishes the European Court of Human Rights (ECtHR) to interpret and enforce the ECHR. While the primary motivation behind the document was to prevent the horrors of the Second World War ever being committed again in Europe, the drafters were also motivated by the rise of communism in

11

See Philip Alston and Ryan Goodman, International Human Rights (Oxford University Press, 2012), Ch 2.

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Eastern Europe and thus sought to establish institutions and legal mechanisms as a bulwark against this.12 The ECHR is not the only human rights treaty produced by the Council of Europe, however. Like the UN system, the Council of Europe also recognizes socioeconomic rights in the European Social Charter.13 Rather than being protected through a mechanism such as the ECtHR, the chief implementation mechanism is instead the European Committee of Social Rights. My view of rights If there is one thing that can universally be said about rights, it is that we inherently disagree over what they mean, what –​if anything –​justifies them, and how to implement and enforce these rights.14 This is not the place to delve into detail on these debates. Certainly, they will be referred to where relevant (such as in Chapter Four (Pandemics and Democracy), where the role of democratic institutions in protecting rights during a pandemic is discussed); however, here, it suffices to say that these differences in the justification of rights –​and our understanding of what rights should entail –​explain competing perspectives on how pandemics should be approached. In this book, I take the position that the success of human rights lies in their emancipatory potential.15 This is evident 12

13 14

15

David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, Law of the European Convention on Human Rights (2nd edn) (Oxford University Press, 2009), pp 1–​3. Council of Europe, European Social Charter, 18 October 1961. See Alastair MacIntyre, ‘Theories of Natural Law in the Culture of Advanced Modernity’ in EB McLean (ed.), Common Truths:  New Perspective on Natural Law (Wilmington, 2000), p 93. This is similar to how Judith N Shklar conceptualizes the value of the rule of law as ‘freedom from fear.’ See Judith N Shklar, Political Thought and Political Thinkers, Stanly Hoffmann (ed.) (University of Chicago Press, 1998), pp 21–​22.

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from the early days of documents such as the US Declaration of Independence and the French Declaration of the Rights of Man. The US founding fathers saw no contradiction between the Declaration of Independence and the institution of slavery. However, when the French delegates at the National Assembly had the audacity to echo the statement that ‘men are born and remain free and equal in rights’, this would prove to be so powerful that, unbeknownst to and unintended by the drafters, it would trigger a successful slave revolt and revolution in the French colony of Haiti.16 The success of the international human rights movement has been precisely because of its emancipatory potential  –​ because of its potential to empower people. This is further demonstrated by left-​wing critiques of some aspects of the human rights movement as prioritizing process over substance, and as shifting political disputes off the streets and parliaments into courtrooms, where judges are inherently predisposed to protect personal property over wealth distribution and deeper conceptions of equality. In essence, these critiques argue that human rights have lost their emancipatory potential, entrenching (rather than challenging) existing power structures.17 It is for this reason that I reject the overtly libertarian conception of rights as primarily creating a zone of non-​interference around an individual. This conception downplays the distortive effect that unequal allocations of private wealth can have both on the political system and on the individual wellbeing of persons –​on both the concept of political liberty and on the concept of personal liberty. Libertarianism overly emphasizes the concept of what Isaiah Berlin terms ‘negative liberty’ –​that

16 17

Jeremy D Popkin, You are All Free: The Haitian Revolution and the Abolition of Slavery (Cambridge University Press, 2010), pp 40–​41. See generally Costas Douzinas, The End of Human Rights: Critical Thought at the Turn of the Century (Hart Publishing, 2000).

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an individual is free if there is an absence of obstacles in their way.18 This concept, however, downplays the important concept of ‘positive liberty’ –​that a person is free to the extent that an individual can take control of their life and realise their purpose.19 Positive liberty thus recognizes the idea that states must take steps to allow individuals to take control of their lives. Consequently, my analysis of human rights in this book is based on the idea that human rights should have an emancipatory potential, and that this is important to ultimately protect and vindicate the dignity of every person. Both positive and negative liberty are important. Who protects human rights? As people disagree over rights, this raises the further issue of who decides disputes over human rights. States such as the US, Ireland and many others empower the judiciary to strike down legislation that is unconstitutional, often because it breaches human rights provisions. International human rights treaties such as the ECHR have also established courts (such as the ECtHR) to vindicate the rights contained in these treaties. In contrast, states such as the UK, whose constitution emphasizes political rather than legal constraints on power, traditionally shunned the idea of an unelected judiciary enforcing human rights norms at the expense of the democratic legislature and executive. Instead, human rights disagreements were left to Parliament to decide.20 These disagreements are particularly acute in a state of emergency. Even if a judiciary 18

19 20

Isaiah Berlin, Four Essays on Liberty (Oxford University Press, 1969), pp 119–​172. For an example of libertarian thought, see Murray N Rothbard, The Ethics of Liberty (New York University Press, 1982). See Berlin n 18, Chapter Two. See JAG Griffith, ‘The Political Constitution’ (1979), Modern Law Review, 42(1): 1.

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is empowered to interpret and apply human rights norms, the judiciary, like the legislature, tends to defer to the executive in times of emergency. Like the legislature, the judiciary is often slow in making decisions –​and during an emergency, time is of the essence. Problems as to the disclosure of secret evidence that might be sensitive to national security also abound.21 A further issue is the question of the judiciary’s democratic legitimacy. Unlike the legislature, judges tend to be unelected. This is an important safeguard in ensuring the protection of minorities in a democracy  –​what is termed the ‘counter-​ majoritarian’ function of judicial review.22 However, it also raises questions as to whether the judiciary should be second-​ guessing decisions made by the democratic branches. This issue is particularly acute in areas where the judiciary is considered to lack expertise on a subject, or where democratic accountability is particularly important. Questions of national security tend to be one such example, where the vital importance of these issues means they should be taken by experts and those who can be democratically held to account. However, it is also the case that emergencies tend to be the situations in which the most egregious human rights abuses occur. Likewise, on-​the-​spot decisions may also have catastrophic results.23 Judicial protection of human rights is arguably even more important in an emergency. In this regard, I endorse

21

22

23

See Eric Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty and the Courts (Oxford University Press, 2007); Cora Chan, ‘Business as Usual: Deference in Counter-​Terrorism Judicial Review’ in Fergal F Davis and Fiona de Londras (eds), Critical Debates on Counter-​Terrorism Judicial Review (Cambridge University Press, 2014), p 228. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn) (Yale University Press, 1986), Ch 1. For a theory of judicial review based on utilizing this counter-​majoritarian function, see John Hart Ely, Democracy and Distrust:  A Theory of Judicial Review (Harvard University Press, 1980). See n 46, Chapter Two.

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an approach to the protection and vindication of human rights that encourages what is termed a ‘culture of justification’: a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.24 Under this understanding, every branch of government –​legislature, executive and judiciary –​has an important role to play in protecting and vindicating human rights.25 These questions are not simply the exclusive purview of the judiciary. Nevertheless, it is important that judges have their say, particularly because of the ‘counter-​majoritarian’ function that they play. Further, while this requirement for justification may seem burdensome and problematic in an emergency for the reasons of speed and secrecy, these objections become weaker as the emergency progresses.26 Justification of emergency powers, therefore, must be insisted upon, particularly considering the potential harm that emergency powers pose to the legal orders they are supposed to protect. COVID-​19 and human rights Such are its all-​encompassing effects, it is difficult to think of a right that has not been affected by COVID-​19. To provide an exhaustive account of these human rights implications,

24 25

26

Etienne Mureinik, ‘A Bridge to Where: Introducing the Interim Bill of Rights’ (1994), South African Journal of Human Rights, 10: 31–​32. David Dyzenhaus, ‘Deference, Security and Human Rights’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing, 2007), pp 125, 144–​46. Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018), p 125.

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therefore, would require a project much larger than this book. Further, it may be many years before the full impact of the pandemic and the measures taken to respond to it are fully known. That is not to say, however, that we cannot elucidate the key human rights principles that pandemic responses should respect and that states should strive to protect. What follows is an illustrative account of some of the human rights issues that should shape and frame pandemic responses based on the 2020 COVID-​19 pandemic. These are explored according to two broad categories of rights: non-​derogable rights; and derogable rights. Here, I focus mostly on the ECHR; however, this is not to say that observations or arguments based in this book are limited solely to countries that are a signatory to the Convention. It should be noted that Chapter Five (The End of the Pandemic Emergency) also discusses the right to privacy in greater detail in the context of measures that may be deployed by a state when a pandemic wanes; for example, contract tracing apps and immunity certificates. Chapter Five also explores the potential for discriminatory treatment when states move towards lifting measures as the pandemic wanes. Finally, in Chapter Six (Conclusions: Breathing Space), I emphasize the importance of socioeconomic rights in the context of emergency preparedness and of avoiding some of the mistakes made in response to COVID-​19 in future pandemics. Non-​derogable rights and COVID-​19

Non-​derogable rights are those rights whose standards cannot be lowered, even during a state of emergency. Some of these rights may be termed ‘absolute rights’, meaning that no interference with this right is ever justified.27 States can interfere 27

See Natasa Mavronicola, ‘What is an absolute right? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Right’ (2012), Human Rights Law Review, 12(4): 723.

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with the right to life; however, save for lawful acts of war, no derogation from this right is permissible, meaning that during a pandemic, the obligations for a state remain the same, regardless of whether an emergency is declared or not.28 The standard of rights protection required by non-​derogable rights was thus the same across all states, regardless of whether or not they declared emergencies under Article 15 ECHR in response to COVID-​19. Pandemics and the right to life

The most obvious right affected by a pandemic is the right to life, enshrined in Article 2 ECHR. While, ostensibly, the right to life would suggest that it just injuncts the state from infringing on this right, it also requires states to take ‘appropriate steps to safeguard the lives of those within their jurisdiction’.29 Although the ECtHR is reluctant to impose an ‘impossible or disproportionate burden’ on states in exercising this duty,30 this obligation can, nevertheless, require states to take steps to prevent unintentional loss of life caused by dangerous activity, whether public or private.31 Article 2 places obligations on the state to ensure that effective regulatory regimes are in place in different industries to protect lives. This can even extend to requiring states to take preventative measures to protect individuals from the risk to life caused by second-​hand smoking.32 In the context of the COVID-​19 pandemic, a state which failed to implement any measures to mitigate the pandemic

28 29 30 31 32

Article 15.2 ECHR. LCB v UK (1998) 27 EHRR (European Human Rights Reports) 212 [36]. Osman v UK (1998) 29 EHRR 245. Oneryildiz v Turkey (2004) 41 EHRR 325 [71]. Wockel v Germany No 32165/​96 93-​A DR 82 (1998). Note, this was a decision of the former European Commission of Human Rights, rather than the ECtHR.

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could have breached Article 2. Here we see the limits of a libertarian approach to rights and the overemphasis on negative liberty. Conceptualizing rights solely as injuncting the state from taking certain actions would lead to a complete inability to enforce or implement social distancing measures designed to reduce the rate of transmission of the virus. This could lead to tragic loss of life. Were this to be the case, it is difficult to see what (if any) value, human rights would have, and their emancipatory reputation would be in tatters. Even failure to act sufficiently fast enough could, in theory, constitute a breach. During a pandemic, some delay can be catastrophic as cases grow exponentially.33 In the UK, one epidemiologist (who was also a former government advisor) argued that if the UK had locked down one week earlier, deaths from COVID-​19 could have been halved.34 On this point, however, it is likely that a Court would show a high degree of deference to a government’s assessment of the need for lockdown, given the number of different factors at play that would have to be considered by the government. This decision is one that could be described as a ‘polycentric dispute’ –​an issue that comprises ‘a large and complicated web of interdependent relationships such that a change to one factor produces an incalculable series of changes to other factors’.35 It is often argued that such decisions are better left to politicians to decide, and so they tend to be areas in which judges exercise a high degree of deference to the executive or refuse to get involved at all. In Osman v UK, for example, the Court found that this duty to protect life was not breached by the state for failing to protect Ahmet Osman, who was 33 34

35

Adam Kucharski, The Rules of Contagion (Profile Books, 2020), pp 23–​26. ‘Coronavirus: “Earlier lockdown would have halved death toll” ’, BBC News (10 June 2020):  accessed 30 June 2020. Lon Fuller, ‘The forms and limits of adjudication’ (1978), Harvard Law Review, 92(2): 353, 395.

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wounded (and his father killed) in a shooting carried out by his teacher, who had developed a fixation with Ahmet. While a breach was not found, the court set out the test that a breach would occur, if it is established to the satisfaction of the court that: the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.36 The threshold, therefore, is high and likely to be difficult to prove. Nevertheless, Conor Gearty argues that this case made significant inroads in the protection of human rights in the UK, owing to the fact that the ECtHR departed from the absolute police immunity that previously existed in the UK.37 To say, therefore, that it is unlikely that a court would find against a government for failure to lockdown soon enough does not mean that the human rights argument is irrelevant: states have a positive obligation to protect the right to life and, consequently, should take steps in a pandemic to deliver on this obligation. Further, courts are not –​and should not –​be the only institutions to take rights seriously; the duty to protect the right to life can feed into legislative responses to a pandemic and also in legislatures’ duties in holding governments to account for their decisions. Here, again, we see why the idea of a culture of justification is important, when determining the protection to be afforded to human rights.

36 37

See Osman n 30, [116]. Conor Gearty, On Fantasy Island:  Britain, Europe and Human Rights (Oxford University Press, 2016), p 165.

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Provision of adequate personal protective equipment

A more tangible dimension of this positive obligation to protect the right to life would be the duty to provide the appropriate personal protective equipment (PPE) for frontline medical workers.38 At the outset of the pandemic in Europe, many states struggled with this. Similar issues were also seen across the US.39 On 3 March 2020, the WHO raised concerns that a shortage of PPE was endangering health workers worldwide and called on industry and governments to increase manufacturing by 40 per cent.40 Concern was also raised with regard to the distortive effect that market forces were having on the supply of PPE and the dangers of countries outbidding each other and, in particular, of developing countries getting left behind.41 The supply of PPE has a direct impact on individual health workers and other people in the frontline placing themselves at high risk of contracting the pandemic disease.

38

39

40

41

See Elizabeth Stubbins Bates, ‘COVID-​19 Symposium: Article 2 ECHR’s Positive Obligations–​How Can Human Rights Law Inform the Protection of Health Care Personnel and Vulnerable Patients in the COVID-​19 Pandemic?’, OpinoJuris (1 April 2020):  accessed 30 June 2020. See ‘Global Shortage of Personal Protective Equipment amid COVID-​ 19: Supply Chains, Bottlenecks, and Policy Implications’ (2020) Asian ADB Briefs, 130:  accessed 30 June 2020. ‘Shortage of personal protective equipment endangering health workers worldwide’, WHO (3 March 2020):  accessed 30 June 2020. Fahad Kaizer, ‘UN leads bid to help 135 countries get vital COVID-​ 19 medical kit, amid severe global shortages’, UN News (28 April 2020):  accessed 30 June 2020.

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Failure to provide adequate PPE can, in principle, lead to a breach of Article 2 ECHR. Conall Mallory argues that equivalence can be drawn between healthcare workers and soldiers in an armed conflict, placed in a situation where they have been provided with inadequate equipment or preparation.42 In Smith and Others v The Ministry of Defence, a number of the families of British soldiers killed in Iraq took cases against the Ministry of Defence on the grounds that the state had failed to provide adequate equipment to the soldiers.43 The UK Supreme Court (UKSC), by a bare majority of four to three, found that the longstanding principle of combat immunity, which had previously protected the army from similar claims arising from an armed conflict, no longer applied. Instead, soldiers were entitled to the same protections under Article 2 as any other citizen.44 That stated, a wide measure of discretion will be afforded to the state and army officials, when assessing whether a breach of Article 2 has occurred as a result of the lack of adequate equipment or similar. Echoing the case law of the ECtHR, Lord Hope stated that courts should avoid imposing positive obligations which ‘are unrealistic or disproportionate’.45 While some cases may be obvious, other cases may lie in the ‘middle ground’, where ‘a wide margin of appreciation … must be given to the authorities or to those actively engaged in armed conflict’, while at the same time not depriving the article of its content.46 Much, therefore, will depend on the facts of the case.

42

43 44 45 46

Conall Mallory, ‘The Right to Life and Personal Protective Equipment’, UK Constitutional Law Association Blog (21 April 2020):  accessed 11 June 2020. [2013] UKSC 41. Gearty (n 37, Chapter Two), pp 163–​164. See Smith and Others v The Ministry of Defence (n 43, Chapter Two) [76]. See Smith and Others v The Ministry of Defence (n 43, Chapter Two) [76].

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Mallory suggests that a breach of Article 2 with regard to the failure to provide PPE during a pandemic may fall into this ‘middle ground’; nevertheless, given the degree of state control over the PPE supply chain and the possibility of a ‘systemic error’, there are grounds for bringing a case against a state over PPE shortages.47 This argument is strengthened, when comparing the reasons for affording a ‘wide measure of discretion’ to the state and army officials. While courts are often reluctant to get involved with questions of national security owing to their lack of legitimacy and expertise in this area –​coupled with the secret nature of much of the evidence that a court would need in order to scrutinize these decisions accurately  –​the same is not true regarding the provision of PPE during a pandemic. There is no reason to assume that certain information cannot be divulged to the court on the basis that it may somehow damage national security. The degree of deference, therefore, to be afforded to officials in the context of pandemic management should be considerably narrower than that afforded to the military in an armed conflict. In turn, there is no reason to assume that the executive is somehow endowed with considerably more expertise than the other branches of government, when it comes to pandemic planning. At best, an argument could be made on the basis of urgency and on-​the-​spot decision making  –​a category of decision making that attracts a wide degree of deference. Yet it is also the category of decision making that can result in egregious human rights abuses. A shocking example of this can be seen from the police killing in London of Brazilian Jean Charles de Menezes in July 2005, in the mistaken belief that he was a suicide bomber. Despite the fact that the Independent Police Complaints Commission found that de Menezes’ death was the result of mistakes that could have –​and should have –​been

47

See Mallory (n 42, Chapter Two).

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avoided, the fact that no prosecutions resulted did not mean that there had been a breach of the duty to investigate under Article 2.48 A similar finding was made in the case of EF v UK, which concerned the policing of a campaign of intimidation orchestrated by loyalist paramilitaries against the pupils of a Catholic girls’ school and their parents in north Belfast.49 Here, the ECtHR refused to hear a challenge to the UK Supreme Court’s finding that the police should be afforded a wide degree of discretion when making operational decisions regarding the policing of these riots. Accordingly, there was no breach of Article 3 as a result of the children being exposed to inhuman and degrading treatment. While deference on the grounds of operational decision making can explain these cases, these can be distinguished from cases regarding the provision of adequate PPE. Ultimately, the decisions affecting PPE supply would have occurred higher up the chain of command and, consequently, would have been taken at a time when the same immediate time constraints affecting the police in EF and the shooting of Jean Charles de Menezes were not present. To follow cases like EF and Armani Da Silva would essentially mean saying that individual doctors or hospital managers were themselves responsible for the provision of PPE, even if the at fault decisions were taken higher up the chain of command. This is not to say that a breach will actually be found. What is key is the potential of human rights to ensure a degree of accountability for decisions taken and for practises to adapt and change in light of human rights law. Human rights and legal analysis, therefore, should not be wholly focused on what courts might decide. Lawyers and legal commentators are not weather forecasters. When a weather forecaster makes a

48 49

Armani Da Silva v UK App. no. 5878/​08 (30 March 2016). EF v UK App. no. 28326/​09 (23 November 2010).

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prediction that it will rain, this may influence people to carry an umbrella, but this will not affect whether it actually rains or not. In contrast, when a lawyer makes a prediction as to how a court will decide a case, there is a possibility that this can affect the outcome. Consequently, legal analysts should always be acutely aware of what the law ought to be and not simply focus on predicting what judges may say the law is. This is particularly important when the law is vague and there is disagreement as to what the law ought to be. These principles are particularly important for future pandemic preparedness –​a point I will return to in Chapter Six (Conclusions: Breathing Space). Protection of individuals in state-​run institutions

Positive obligations also flow from other non-​derogable rights such as Article 3, which prohibits torture and inhuman and degrading treatment or punishment. In Keenan v UK, the ECtHR found that the family of a man who had taken his own life while in prison could, in principle, take a case against the state both under Article 2 and Article 3.50 This duty is particularly important in the context of vulnerable persons in the care of the state. Likewise, the right to be free from inhuman and degrading treatment and torture would place positive obligations on the state to ensure that conditions in state-​run institutions do not deteriorate during a pandemic so that they fall foul of Article 3. For example, staff shortages, equipment shortages, and hospital and prison overcrowding could all create conditions that could breach Article 3. Here, the court will look at the cumulative effect of the conditions, any specific claims an applicant may have, and also the duration in which these conditions prevailed. The positive obligations that flow from Article 3 could also affect those not in state-​run institutions. In Z and Others v UK, the ECtHR found a breach of Article 3 because the 50

(2001) 33 EHRR 933 [124]; see also Edwards v UK (2002) 35 EHRR 487.

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state’s social services system failed to take reasonable steps to protect the applicant children from serious long-​term neglect and abuse by their parents, which the state ought to have known about.51 Further, in Tanko v Finland the now defunct European Commission of Human Rights stated that it did ‘not exclude that the lack of medical care in a case where someone is suffering from a serious illness could in certain circumstances amount to treatment contrary to Article 3’.52 This raises the serious question of whether steps taken by states to free up spaces in hospitals for COVID-​19 patients breached Article 3. Again, a plea to an emergency situation cannot be made on the basis that Article 3 is non-​derogable. There is some case law suggesting that the duty owed by Article 3 can be context-​specific; however, this has not been followed in subsequent cases.53 Therefore, states cancelling treatments to free up hospital space in an emergency pandemic situation must put in place decision-​making procedures to reflect this complexity and these rights. A blanket discharge of everybody, regardless of the severity of their condition, for example, would constitute a clear breach of Article 3 and potentially Article 2, if it results in the loss of life. Throughout the world, some of the places worst affected by COVID-​19 were care homes. In May 2020, 62 per cent of coronavirus-​related deaths in Ireland were recorded in care homes.54 In Canada, the figure was as high as 82 per

51 52 53

54

(2001) 34 EHRR 97. Tanko v Finland No 23634/​94 (19 May 1994). See Natasa Mavronicola and Francesco Messineo, ‘Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK’ (2013), Modern Law Review, 76(3):  589; also Trablesi v Belgium App. no.  140/​10 (7 October 2014). Paul Cullen, ‘Ireland has one of the highest rates of COVID-​19 deaths in care homes in world’, Irish Times (22 May 2020): accessed 20 June 2020.

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cent.55 These figures will vary over time, and it is difficult to compare states, owing to the fact that the pattern of the pandemic will vary, that states may be at different stages of transmission, and that the institutional network of care homes will vary too. A key issue may be whether care homes are exercising a public function, as the ECHR only places a positive obligation on states –​not private individuals –​to act compatibly with the Convention. That stated, the Convention can have an indirect effect, for example by placing duties on the state to ensure that proper regulatory systems are in place to protect individuals’ rights. In this manner, the state cannot simply shirk its human rights obligations by contracting out its duties to the private sector.56 The nexus between COVID-​19 outbreaks and care homes becomes clearer if there is a government policy in place that contributed to an increased rate of infections in these homes. In the UK, for example, concern was raised as to whether discharges from hospitals to care homes in advance of the COVID-​19 surge led to an increased rate of infection in these homes.57 Duty to investigate

Non-​derogable rights such as Article 2 and Article 3 also require states to investigate potential breaches of these articles. 55 56

57

See n 54, Chapter Two. For example, see YL v Birmingham City Council [2008] 1 AC 895. While the majority in this case found that private care homes were not exercising a public function under section 6 of the Human Rights Act 1998 for residents whose accommodation was being paid for by the state, the UK Parliament passed s145 of the Health and Social Care Act 2008, clarifying that such an act in future would constitute a public function under section 6. Paul Brand, ‘Tens of thousands discharged into care homes before routine coronavirus testing in England’, ITV News (2 June 2020):  accessed 30 June 2020.

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The rationale behind this is simple: states could simply shirk their responsibility to protect and vindicate these rights, by refusing to investigate whether a breach has occurred. This is even more important where the allegation is that the state was itself responsible. In Cyprus v Turkey, Turkey was found to be in breach of Article 2 for failing to conduct an investigation into the fate of 1,500 civilians in northern Cyprus, who disappeared following the Turkish invasion and occupation of the northern part of the island in 1974.58 Likewise, in Finucane v UK, the ECtHR found that the UK had ‘failed to provide a prompt and effective investigation into the allegations of collusion by security personnel’ in the murder of Belfast solicitor Pat Finucane during the conflict in Northern Ireland.59 In 2019, almost 16 years since the ECtHR had ruled, the UK Supreme Court found that an Article 2-​compliant investigation into the killing of Pat Finucane had still not taken place.60 Through this understanding of human rights, we see that non-​derogable rights are not just manifestations of ‘negative liberty’; instead, they place burdens on the state to take steps to protect these rights. Non-​derogable rights thus provide a formidable degree of protection of individuals’ rights, as well as requiring that sufficient investigatory regimes are in place to ensure that allegations of breaches of rights are scrutinized, with a view to holding those responsible accountable. Moreover, they require people to be heard; that their grievances are not intentionally or unintentionally ignored. In turn, through proper investigations into human rights abuses, those responsible can be held accountable through either the judicial or political system. Knowledge of the actions of the state, therefore, is a prerequisite to the proper democratic and political functioning of

58 59 60

(2001) 35 EHRR 731. App. no. 29178/​95 (1 July 2003) [84]. [2019] UKSC 17.

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the state. In this manner, the emancipatory potential of human rights is –​and should be –​much stronger than that suggested by libertarian overreliance on the concept of negative liberty. It also demonstrates that the protection of human rights is not just the exclusive purview of the judiciary; all branches of government must be engaged in this culture of justification. Conclusions Article 2 and Article 3 ECHR provide robust protections of human rights in a time of pandemic. Furthermore, these obligations apply regardless of whether or not a state has declared a state of emergency under Article 15 ECHR. A state of emergency under Article 15 ECHR therefore does not grant the state carte blanche to act as it sees fit in a time of emergency. It does not create what scholars of emergency powers term a ‘legal black hole’: a zone of public power, created by law but whose exercise cannot be checked or limited by law through judicial scrutiny.61 Legal black holes are dangerous to values like human rights and the rule of law, because an individual has little recourse to legal protections in order to challenge the state’s treatment of them. Not only, therefore, is the law powerless to help them, but the law actually empowers the state to act as it sees fit. Instead, Article 15 ECHR creates a different regime of legality rather than a regime of no legality. As Article 2 and Article 3 are non-​derogable, the same obligation to protect and vindicate these rights pertains. Moreover, the contextual specificity of a pandemic or related emergency cannot serve to dilute the absolute nature of Article 3 and the prohibition of torture and inhuman and degrading treatment. Consequently, this different regime of legality can ensure that human rights are protected to an extent if an official

61

David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006), pp 41–​43.

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state of emergency is declared and the ‘quarantining’ effect of such a declaration is utilized. However, not all rights are non-​derogable. As we shall see in the following chapter, the vast majority of rights in treaties such as the ECHR and in constitutions can be affected by a declaration of a state of emergency. The question remains, therefore, as to whether a de jure state of emergency can adequately protect these rights.

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THREE

Pandemics and Human Rights: Derogable Rights Introduction While a declaration of a state of emergency should not affect non-​derogable rights, not all rights fall into this category. Rights that can be derogated from allow a state to enact measures not ordinarily permissible under the parameters of the treaty in question. The same is true of constitutional emergency powers that expressly label rights as derogable or not non-​derogable.1 However, these rights can also be interfered with by the state without the declaration of an emergency. This raises the question of whether pandemic powers should be accommodated under the ordinary or normal grounds of legitimate interference built into these rights, or whether a state of emergency should be declared in order to enact these measures. Again, I want to emphasize what ought to happen, rather than what is likely to happen. Ultimately, I contend that human rights overall are better protected when emergency

1

See, for example: Article 44, Constitution of the Republic of Uganda (as amended to 2005); Article 19.6, Constitution of Portugal (as amended to 2005); Article 183.2, Constitution of Cyprus (as amended to 2013).

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powers are quarantined to exceptional situations, and the best approach to do this is through a de jure declaration of a state of emergency. To demonstrate this, this chapter looks at the case law of the ECtHR as an illustrative example of the challenges that so-​called ‘lockdowns’ pose to derogable rights. First, a brief outline of the concept of ‘lockdown’ is discussed. Then, I will focus on the impact that lockdown has on what are termed ‘limited rights’  –​rights that can be interfered with only in discrete circumstances. Emphasis is put on Article 5 ECHR –​ the right to liberty –​and whether this right is best protected with or without derogation. Following this, I  then look at qualified rights –​rights that can be interfered with normally under broadly defined circumstances. Again, a key theme is the quarantining effects of a de jure declared emergency, Moreover, while this chapter focuses on the EHCR; the similarities between this Convention and other international human rights treaties means that many of the arguments in this chapter can be mapped on to other states that are not a party to the Convention. Likewise, the questions raised before the ECHR on these issues are similar to those raised before domestic courts concerning constitutional interpretation. Lockdown In early 2020, many states introduced regimes known as ‘lockdown’ in response to the COVID-​19 pandemic. While there were variations in the measures enacted, the severity of the restrictions, and how they were enforced, we can, nevertheless, identify certain commonalities. First, all lockdowns have the same goal:  to lower the reproduction number (‘R number’) of the virus, by reducing the number of people a potentially infected person comes in contact with through social distancing.2

2

See n 42, Chapter One.

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Further, lockdown is different to a quarantine. ‘Quarantine’ comes from the Italian word ‘quarantena’ meaning ‘forty days’. It referred to the period of time that ships were isolated off Venice before passengers and goods could disembark.3 Essentially, quarantine consists of separating and isolating infected or suspected infected individuals from the healthy population. Often, this may occur at ‘choke points’ –​points of entry into a state or area where flows of people converge –​such as at ports, airports and border crossings. Quarantines may also be established around certain designated infected areas, preventing people from entering or exiting these areas. What is key to a quarantine is this separation of infected or potentially infected persons from the rest of the population. For a quarantine to be most effective, it should be implemented before a disease gets established in the community –​that is, in the early containment stage of the pandemic; or later on at the waning stage, when the R number has been reduced and infection rates in the community are low.4 The strictest form of quarantine occurs where individuals are kept in specific state-​controlled institutions, with their freedom of movement confined to these institutions only.5 Other forms of quarantine, such as individuals being required to stay in their own place of residence, may also be deployed. In contrast, lockdown measures as a whole do not attempt to distinguish healthy persons from infected or possibly infected individuals; instead, lockdowns are designed to implement 3 4 5

Eugenia Tognotti, ‘Lessons from the History of Quarantine, from Plague to Influenza A’ (2013), Emerging Infectious Diseases, 19(2): 254. See n 52, Chapter Five. See, for example, New Zealand’s quarantine arrangements for arrivals to the country during the COVID-​19 pandemic:  ‘COVID-​19  –​ Managed isolation and quarantine’, New Zealand Ministry of Health (18 June 2020):  accessed 1 July 2020.

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social distancing measures, reducing the spread of the virus by reducing social interactions. Lockdowns are introduced once the pandemic has progressed beyond the containment stage to the mitigation stage, where in-​community transmission of the disease is evident. This is not to say that there is no overlap between lockdown and quarantine. Lockdown may even include quarantining measures, confining infected individuals to their homes or another place. Ultimately, lockdowns are more porous than quarantines; they do not necessarily require confining people behind physical barriers. Lockdowns thus look different to classic or ‘paradigmatic’ models for depriving individuals of their liberty. Under this human rights lens, lockdown measures may appear less draconian than quarantines for the people subjected to them; however, in another way, they are stricter, applying to all persons rather than just specific persons. In addition to specific rules for infected persons, lockdowns may also entail: the closure of schools, universities and other public spaces; cancellation of large events, such as sports and concerts; the forced closure of non-​essential businesses; and a requirement that all who can work from home do so. Lockdowns may also place limits on: when people can leave their place of residence; the permissible reasons for this; the duration for which they can leave; and the maximum distance that people can travel. When a person does leave their home, there may be further restrictions; for example, requiring persons to wear face masks and strict limits on the numbers of persons allowed in essential shops. Not all these measures may be in force simultaneously and not all states will enact all measures; what is key is that these measures are designed to reduce community transmission of the disease through limiting social interactions between all persons.6 6

See Cornelius Hirsch, ‘Europe’s coronavirus lockdown measures compared’, Politico.eu (15 April 2020):  accessed 1 July 2020.

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By placing restrictions on what persons can and cannot do, as well as obligating certain behaviour, it is clear that lockdown impacts upon the basic concept of negative liberty –​the idea that persons are free in the sense that there is a lack of obstacles in their way to act as they see fit. The most obvious right that is impacted by lockdown, therefore, is the right to liberty and security of the person under Article 5 ECHR. As we shall see, however, this is certainly not the only right affected. Lockdown and liberty The right to liberty in Article 5 ECHR is classified as a ‘limited right’. Limited rights can be interfered with by the state but only in certain discrete circumstances. These rights, in essence, have their own ‘in-​built’ quarantining effect. Article 2 and the right to life can be conceptualized as a limited right, owing to the fact that there are situations in which the state can take a person’s life. These are set out in Article 2.2. These are: a ) In defence of any person from unlawful violence; b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c) In action lawfully taken for the purpose of quelling a riot or insurrection.7 However, Article 15.2 makes clear that no derogation from Article 2 is permissible, save for lawful acts of war; consequently, in a time of pandemic, Article 2 acts as a non-​ derogable right.8 Article 5, however, is certainly affected by derogations from the convention; not just ‘in time of war’ but also more broadly defined emergencies ‘threatening the life of the nation’.

7 8

Article 2.2 ECHR. See Chapter Two.

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Article 5.1 ECHR states that: ‘Everyone has the right to liberty and security of person’. This is identical to the first sentence of Article 9 ICCPR and closely mirrors: Article 7.1 of the Inter-​ American Convention on Human Rights, which states that ‘Every person has the right to personal liberty and security’; and Article 6 of the African Convention on Human and Peoples’ Rights, which states that ‘Every individual shall have the right to liberty and to the security of his person’. The right to liberty is not absolute. Article 5.1 ECHR sets out six discrete conditions for when a person can be deprived of their liberty: a) The lawful detention of a person after conviction by a competent court; b) The lawful arrest or detention of a person for non-​compliance with the lawful order of a court in order to secure the fulfilment of any obligation prescribed by law; c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence of when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; f) The lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.9

9

Article 5.1 ECHR.

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‘Liberty’ is an amorphous concept of contested meaning. The right to liberty has been referred to as ‘one of the main lynchpins of the ECHR’ as many ancillary rights such as freedom of association or enjoyment of a private and family life depend on a person possessing liberty in the first instance in order for them to be exercised.10 Article 5, however, has been interpreted narrowly, with the UK Supreme Court reiterating that the additional caveat of the ‘right to security’ does not provide any additional protection; instead, Article 5 only protects liberty in the sense of ‘physical liberty’.11 Article 5 also does not confer on a person the right to do what one wants or go where one pleases. Article 2 of Protocol 4 to the ECHR protects the additional right of freedom of movement; however, being a protocol to the Convention, not every state has ratified it. The UK and Turkey, for example, have not ratified Protocol 4.12 Further, the ECtHR has stated that Article 5 must not be interpreted to incorporate aspects of Article 2 of Protocol 4, even for states that have not ratified Protocol 4.13 Significantly, Article 5 only protects persons from ‘deprivation’ rather than ‘restriction’ of liberty. The distinction between ‘restriction’ and ‘deprivation’, however, ‘is merely one of degree and intensity, and not one of nature or substance’; a restriction of liberty may actually constitute a deprivation of liberty and trigger Article 5 if it crosses a certain threshold of interference.14 In order to assess this, the ECtHR has

10 11 12

13 14

Shona Wilson Stark [2019] Public Law 380, 381. P v Cheshire West & Chester Council; P & Q v Surrey County Council [2014] UKSC 19. ‘Details of Treaty No.046’, Council of Europe ETS No.056 (status as of 1 July 2020):  accessed 1 July 2020. Austin and Others v UK (App. nos 29692/​09, 40713/​09 and 41008/​09), judgment of 15 March 2012, [55]. Guzzardi v Italy (App. no. 7367/​76), judgment of 6 November 1980.

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frequently stressed that regard must be had to ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’.15 Consequently, one cannot simply look at a measure in isolation and decide on that basis whether it constitutes a deprivation or restriction of liberty; a whole range of contextual factors must be taken into account. For instance, if a curfew for a certain period of time is found to constitute a restriction (rather than a deprivation) of liberty, this does not necessarily mean that this will be the same outcome for a curfew of an identical period but accompanied by additional restrictions, for example electronic tagging, or more lax procedural safeguards.16 The regime as a whole must be looked at. How lockdowns impact on the right to liberty is thus affected by three separate issues. The first issue is the actual scope of the measures in question. The second issue is whether these measures constitute a restriction or deprivation of liberty and, if they do constitute a deprivation of liberty, whether they can be justified under one of the reasons set out in Article 5.1 (a)–​(f). In the context of pandemics, the most obvious candidate is Article 5.1(e): ‘the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’. Third, as Article 5 can be derogated from, the existence of a derogation can further expand the scope of permissible deprivations of liberty.

15 16

Engel v Netherlands (App. no. 5100/​71), judgment of 8 June 1976. For example, whether a control order –​a form of deprivation of liberty without trial introduced by the UK in response to terrorism –​was compatible with Article 5 ECHR, was dependent upon the range of measures an individual was subject to, not just the duration of their detention. See Ed Bates, ‘Anti-​terrorism control orders: liberty and security still in the balance’ (2009), Legal Studies, 29(1): 99; David Feldman, ‘Controlling control orders: Article 5 ECHR and the Prevention of Terrorism Act 2005’ (2008), Cambridge Law Journal, 67: 4.

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At the time of writing, of the ten states that expressly derogated from the ECHR in response to COVID-​19, just two –​Estonia and Georgia –​derogated from Article 5. While Armenia did not expressly state that it was derogating from Article 5, its notification submitted to the Council of Europe implied that it also derogated from Article 5.17 Consequently, only three out of 47 Council of Europe states considered that the lockdown measures they introduced interfered with the right to liberty beyond what was permissible during normalcy. The reasons for this may be that a state believed the lockdown measures they enacted were not of the sufficient threshold to trigger Article 5 and so constituted only restrictions rather than deprivations of liberty. Alternatively, a state may have felt that even if the measures did constitute a deprivation of liberty, they were a legitimate and lawful interference for the prevention of the spreading of infectious diseases in accordance with Article 5.1(e). Article 5.1(e) and the lawful detention of persons for the prevention of the spreading of infectious diseases

Whether lockdowns can fall under Article 5.1(e) is difficult to assess, given the sparse case law on this provision and the differences in lockdowns implemented across states. The most relevant case is Enhorn v Sweden, which concerned an HIV-​ positive man, who was involuntarily detained at a hospital on the basis that he had refused to comply with measures aimed at preventing him from spreading the infection.18 Enhorn had absconded from hospital several times, including once for a 17

18

‘Reservations and Declarations for Treaty No.005  –​Convention for the Protection of Human Rights and Fundamental Freedoms’, Council of Europe (Status as of 1 July 2020):  accessed 1 July 2020. (App. no. 56529/​00), judgment of 25 January 2005.

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total of two years. When he was returned to the hospital, a court order was sought to extend his period of compulsory isolation. When the Swedish court ruled against Enhorn, despite the lack of evidence that he was engaging in promiscuous behaviour likely to spread HIV when he absconded previously, he absconded again. When the case came before the ECtHR, the Court held that the test for ‘lawful detention’ under Article 5.1(e) is ‘whether the spreading of the infectious disease is dangerous for public health or safety’ and, if so, ‘whether detention of the person infected is the last resort in order to prevent the spreading of the disease because less severe measures have been considered and found to be insufficient to safeguard the public interest’.19 Applying the test, the Court found that there was no evidence that Enhorn had transmitted the HIV virus to anybody as a result of intent or gross neglect, despite his failure to cooperate with court and medical orders. Accordingly, the Court found that the ‘compulsory isolation of the applicant was not a last resort in order to prevent him from spreading the HIV virus because less severe measures had not been considered and found to be insufficient to safeguard the public interest’.20 Article 5.1(e) and the detention of healthy persons to prevent the spread of disease

Enhorn, however, is of minimal use when assessing the compatibility of lockdown powers with the ECHR. Enhorn was known to be HIV positive. In contrast, a key question that needs answering in the context of lockdown is whether Article 5.1(e) permits the deprivation of liberty of healthy people to prevent the spread of the disease. Again, at the time of writing, there is no ECtHR jurisprudence answering this question.

19 20

Enhorn v Sweden (App. no. 56529/​00), judgment of 25 January 2005. Enhorn v Sweden (App. no. 56529/​00), judgment of 25 January 2005 [55].

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Importantly, there are legal safeguards in place when depriving a person of their liberty based on the fact that they fall into a certain category of persons or have committed a certain act. Article 5.1(e) itself refers not just to the prevention of the spread of infectious diseases, but also allows for the deprivation of liberty of ‘persons of unsound mind, alcoholics or drug addicts or vagrants’. How does one assess whether a person is of unsound mind or is an alcoholic, for example, and why does this matter? It matters because this category places a limit on who the power to detain can be exercised against and specifies what safeguards must be in place to ensure that this does not amount to arbitrary detention. In Witold Litwa v Poland, the ECtHR found that the detention of a person on the basis that they were an alcoholic, did not meet the standard of ‘lawful’ required by Article 5.1(e), as ‘serious doubts’ existed as to whether the applicant was actually under the influence of alcohol in such a way as to pose a threat to the public or himself ’.21 Indeed, there was dispute among the judges as to what ‘alcoholic’ means in Article 5.1(e), with Judge Bonnello arguing that it did not refer to those temporarily intoxicated (‘one-​off, transient manifestations’); rather, it only authorized detention of those ‘to continuing or habitual states of socially dangerous conditions or attitudes’.22 Likewise, in the case law on detention of persons of ‘unsound minds’ there must be procedural safeguards in place to ensure that a person satisfies this definition.23 These person-​specific or conduct-​specific requirements for deprivations of liberty to be lawful are not just seen in Article 5.1(e); they are replete across the limitations to the right to liberty set out in Article 5.1(a)–​(f). For instance, in order for a person to be convicted

21 22 23

2000-​III 33 EHRR 1267 [63]. 2000-​III 33 EHRR 1267 [63]. Van Der Leer v Netherlands (1990) 12 EHRR 567 [22]; Winterwerp v Netherlands (1979) 2 EHRR 387.

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of an offence by a competent court, a trial must meet a certain level of procedural fairness. Relatedly, in the context of arrest under Article 5.1(c), the officer must have ‘reasonable suspicion’ that a person has committed an offence.24 What all this means is that were Article 5.1(e) to be interpreted so as to permit the detention of all persons, including healthy persons, for the prevention of the spread of an infectious disease, this would be the only form of detention under Article 5.1(e) that would not have any person-​specific safeguards in place to protect against arbitrariness.25 Without a clear judgment from the ECtHR on this point, there are two competing interpretations of Article 5.1(e): either a narrow interpretation, which only permits the detention of persons known to be infected, or that there is a good reason to assume that there is a risk of them being infected, with the necessary safeguards in place to ensure that a person does, in fact, satisfy this criterion; or a considerably more expansive interpretation, which permits the deprivation of liberty of everybody within a state, with no burden of proof or procedural safeguards whatsoever being required. Without these procedural safeguards, to follow the second interpretation of Article 5.1(e) and to permit the deprivation of liberty of everybody within a state would be to calibrate the protection afforded by Article 5 downwards. Given the threat posed to life by a pandemic, it is completely understandable for a government to take such necessary action; indeed, failure to do so, to recall from Chapter Two (Pandemics and Human Rights:  Non-​Derogable Rights), could constitute a breach of the right to life.26 It is also

24 25

26

See, for example: Brogan and Others v UK (App. no. 11234/​84), judgment of 29 November 1988; Fox, Campbell and Hartley v UK [1990] ECHR 18. I have articulated a version of this argument in Alan Greene, ‘Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If Not Now, When?’ (2020), European Human Rights Law Review, 263. See from n 32 to n 35 in Chapter Two.

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understandable that the ECtHR would choose this broader interpretation, avoiding the embarrassing scenario of finding that a government’s response to a deadly pandemic was incompatible with human rights. However, given when the Convention was drafted in the late 1940s, it is difficult to see how lockdown could have been foreseen by the drafters as being covered by Article 5.1(e). There is no evidence from the drafting documents of the ECHR (the travaux preparatoires) indicating whether or not Article 5.1(e) covers healthy persons.27 Again, lockdowns of this scale were unprecedented, so it is difficult to suggest that the drafters foresaw such social distancing powers. At the time of the drafting of the ECHR, virology was in its infancy. The most recent pandemic at the time had been the Spanish Flu of 1918 and although some US cities took social distancing measures, these were mostly limited to closing schools and churches, and banning large crowds; these measures were on a vastly smaller scale than the lockdowns introduced across the world during the 2020 COVID-​19 pandemic.28 It is most likely, therefore, that the drafters envisaged Article 5.1(e) to cover quarantine rather than lockdown. That stated, the Convention is a ‘living instrument’, so it can adapt and change as society does too. Interpreting Article 5.1(e) to permit the lawful detention of healthy persons would be an example of the ‘business as usual’ approach to emergency measures. It would be a case of responding to a pandemic, not by declaring a state of emergency in accordance with Article 15, but by

27

28

Council of Europe, ‘Travaux Préparatoires to the Convention’, DH(56)10:  accessed 1 July 2020. See: MCJ Bootsma and Neil M Ferguson, ‘The effect of public health measures on the 1918 Influenza Pandemic in US Cities’ (2007), Proceedings of the National Academy of Sciences of the United States of America, 104(18): 7588; also Greene (n 25 Chapter Three), p 269.

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interpreting the ordinary parameters of the Convention so as to allow such extraordinary actions. It would be to allow these powers without the ‘quarantining effect’ of Article 15. While there is a sort of ‘semi-​quarantining effect’ built into Article 5 –​in the sense that it can only be interfered with in the context of the discrete conditions outlined in Article 5 –​this quarantining effect is weaker than that seen in the context of Article 15. If Article 5.1(e) were to be interpreted by the ECtHR so as not to permit the deprivation of liberty of healthy persons, a state would instead have to declare a state of emergency in accordance with Article 15 ECHR and derogate from the Convention. Doing so would then allow for these lockdown powers to be lawfully enacted. However, this would only be permissible under the Convention if there existed ‘a time of war or other public emergency threatening the life of the nation’. The powers would be quarantined to these exceptional situations. Any jurisprudence of the Court on these powers would be relevant only to other cases where an emergency had been declared. In contrast, any jurisprudence on lockdown powers where an emergency had not been declared would not be tethered as securely to the discrete conditions under which it was produced. These principles are much more susceptible to be deployed outside the crisis situation in which they were elucidated, potentially damaging human rights in unforeseen ways. For example, the lack of person-​specific checks regarding healthy persons under Article 5.1(e) could be used to dilute the procedural safeguards required under the other grounds outlined in Article 5.1(a)–​(f). Lockdown: restriction or deprivation of liberty? While this is a concern, a greater risk to rights could result from the ECtHR finding that lockdowns simply constitute a restriction, rather than a deprivation, of liberty. As noted, the distinction between ‘restriction’ and ‘deprivation’:  ‘is

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merely one of degree and intensity, and not one of nature or substance’.29 Certainly, this is a highly probable outcome, and much will depend on the severity of the lockdown. Some states may, for example, place no limit on the amount of time a person is allowed to leave their place of residence or on the reasons why a person may leave. Other lockdown regimes may set a limit on the time a person is allowed to leave their place of residence, and may require individuals to have a ‘reasonable excuse’ when they do so. Some regimes may require prior approval before a person leaves home, and may require the carrying of documentation proving this approval. Some lockdowns may even prohibit certain categories of person from leaving home altogether. This approach was taken by Spain, which required children to be confined in their homes for 43 days with no exit allowed.30 On this point, it is incredibly difficult to see how this constitutes a restriction, rather than a deprivation, of liberty. Again, while the case law on Article 5.1(e) is sparse, it is clear from the Court’s jurisprudence under the other grounds outlined in Article 5.1 that a 43-​day period of detention was precisely that: detention.31 Even if Article 5.1(e) were interpreted to permit the detention of healthy persons, it is difficult to see how Spain’s restrictions on children could be considered lawful in accordance with the

29 30

31

Guzzardi v Italy (n 14, Chapter Three). EU Fundamental Rights Agency, Country Study for Spain –​Coronavirus pandemic in the EU –​Fundamental Rights Implications (4 May 2020):  accessed 1 July 2020, p 3. See, for example, the duration of curfew permissible under control orders. Although this curfew was often accompanied by additional restrictive measures, the duration of less than a whole day at any one time is substantially shorter than the 43-​day detention that Spanish children were subjected to. See Bates (n 16, Chapter Three).

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ordinary parameters of Article 5. Despite this, Spain did not derogate from Article 5 using Article 15 ECHR. If the ECtHR were to find that a lockdown constituted only a restriction rather than a deprivation of liberty, an individual seeking to challenge lockdown or lockdown-​like measures before a court would have no recourse to Article 5. This principle would then be free to be applied by states to justify the introduction of lockdown-​like powers in situations beyond a pandemic, where the threat might not be as objective.32 It is all too easy to envisage a state making a plea to the need for lockdown-​like powers in response to a perceived threat to national security. For example, states could obligate persons in a certain area to remain indoors and could enforce strict curfews, all without triggering Article 5. As such, this would again demonstrate the key weakness of the ‘business as usual’ model: its inability to quarantine exceptional powers to exceptional situations.33 This is not to say that other rights would not also be relevant and effective. The best alternative in this regard would be the right to freedom of movement contained in Article 2 of Protocol 4. This right was the most derogated from by the ten states that declared emergencies in accordance with Article 15 ECHR in response to COVID-​19.34 Relying on Article 2 of Protocol 4 to do the heavy lifting with regard to protecting human rights in a time of lockdown, however, is that not all states have ratified Article 2 of Protocol 4. As noted, the UK and Turkey, two countries with a long history of counter-​terrorist powers, for example, have not.35 An 32 33 34

35

See from n 13 to n 15, Chapter One. See from n 53 to n 58, Chapter One. ‘Reservations and Declarations for Treaty No.005 –​Convention for the Protection of Human Rights and Fundamental Freedoms’ (see n 17, Chapter Three). Council of Europe, Chart of Signatures and Ratifications of Treaty 046:  accessed 9 June 2020.

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applicant in these states, therefore, would be limited in their recourse to the ECHR to challenge lockdown-​like measures introduced beyond the pandemic; for example, in response to a terrorist threat. The quarantining effect of Article 15 This point is all the more acute in light of the evolutive nature of emergencies. At the time of writing, in June 2020, the COVID-​ 19 pandemic has already demonstrated this, triggering what has been termed an ‘economic emergency’ as much as a public health one.36 Across the world, the financial impact of COVID-​19 has been dramatic. In May 2020, the Bank of England warned that the UK was facing its worst recession in 300 years; meanwhile in the US, over 42 million claims for unemployment benefits were filed, suggesting an unemployment rate close to 20 per cent.37 These are precisely the conditions in which social unrest occurs and which can, in turn, prompt a heavy-​handed response from state forces and egregious human rights abuses. While it may simply be coincidental that the largest US protests against systemic racism and police brutality since the 1960s erupted at this exact moment of record unemployment, spreading to other countries across the world, one would be remiss not to at least reflect on this.38 36

37

38

H Stewart, ‘ “Whatever it takes”: Chancellor announces £350bn Aid for UK Businesses’, The Guardian (17 March 2020):  accessed 14 April 2020. Dominic Rushe, ‘New US unemployment claims reached 1.9m last week despite rate of increase slowing’, The Guardian (4 June 2020):  accessed 1 July 2020. Kadhin Shubber, ‘US “Black Likes Matter” protests go global’, The Financial Times (7 June 2020):  accessed 1 July 2020.

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To deploy a ‘business as usual’ model to accommodate lockdown powers therefore runs the very serious risk of losing the quarantining effect of Article 15. It is to fall into the trap of assuming that simply because the existence of an emergency is clear-​cut and objective at the outset of the crisis, this will continue to be the case as the emergency is perpetuated. The insistence from the state that it will continue to abide by human rights standards in a pandemic is comforting; however, the sinister side of this is that it is also contending that these exceptional measures are perfectly compatible with ordinary human rights norms. This precedent, as Jackson J warned, ‘lies about like a loaded weapon’39 ready for any less benevolent hand to use it. Lockdown and qualified rights The right to liberty is not the only right to be affected by lockdowns or by state responses to a pandemic. Many of these rights are ‘qualified rights’ –​rights that are defined in much broader, more nebulous terms than limited rights. The grounds upon which the state can interfere with these rights are also much broader, with the provisions in question stressing the idea of balancing these rights against the legitimate aims of the state, such as the protection of morals, and the rights of others.40 Rights such as freedom of expression, freedom of assembly and association, freedom of thought, conscience and religion, and the right to private and family life are such examples. Like limited rights, qualified rights may also be derogated from. Pandemics will impact upon a range of qualified rights, and to explore them all here would go beyond the scope of this

39 40

Korematsu: Re Korematsu (1944) 323 US 246. David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, Law of the European Convention on Human Rights (2nd edn) (Oxford University Press, 2009), pp 341–​342.

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book. Instead, some illustrative examples of the different issues will suffice. The most obvious starting point is to look at the rights that states have expressly derogated from in the context of the COVID-​19 pandemic. Of the ten states that declared emergencies, the two most common rights derogated from were: the right to freedom of association (Article 11): and the right to freedom of movement (Article 2 of Protocol 4). The next most common right derogated from was the right to education (Article 2 of Protocol 1). This reflected a common approach taken by states to close schools and other educational facilities during the pandemic. Other rights derogated from include: the right to property (Article 1 of Protocol 1); the right to privacy and family life (Article 8); the right to a fair trial (Article 6); and the right to liberty (Article 5). Of these, all except the right to liberty is a qualified right. It is important to note, however, that simply because a state did not derogate from any of these rights in question does not mean that it did not take steps that interfered with these rights. Moreover, there is not necessarily a correlation between the fact that a state derogated and the severity of its interference with rights. Assessing breaches of qualified rights

When assessing whether a qualified right has been breached, the ECtHR approaches these questions through the same lens: first, it assesses whether there has been an interference with the right in question; then, it asks whether that interference was justified. In assessing this question, the ECtHR asks itself three further sub-​questions:  Was the interference prescribed by law? Did it serve a legitimate aim? Was it necessary in a democratic society to achieve the identified aim? On the question of ‘necessity’, the ECtHR applies a ‘proportionality test’. This means that the ECtHR assesses whether the interference with the right was done in a manner that, first, was rationally connected to the objective it sought to achieve and, if so, did not go above and beyond what was required in order

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to give effect to the legitimate aim. This can entail the ECtHR looking at: whether the steps taken were the least restrictive that could have been adopted in the given circumstances; whether the measures imposed excessive burdens on an individual; and whether the benefits dramatically oughtweighed the relative costs of the disputed measure.41 Proportionality is often compared to the idea of ‘not using a sledgehammer to crack a nut’.42 It is also important to note that a proportionality test is also expressly required by Article 15, as Article 15 only permits derogations ‘to the extent strictly required by the exigencies of the situation’. A state cannot, therefore, shirk this requirement for a proportionate response to a threat by declaring a state of emergency under Article 15. Invariably, dispute will arise as to how this balance is struck. Here, the legitimacy of courts in scrutinizing the balance struck by democratically elected branches will be called into question. It is on this basis that JAG Griffith famously attacked the concept of the judicial protection of human rights, arguing that Article 10 ECHR, which outlines the right to freedom of expression but also the legitimate grounds upon which such a right could be interfered with, amounted to ‘the statement of a political conflict pretending to be a resolution of it’.43 Similar critiques have also been echoed by the UK’s Lord Sumption, when arguing for a restrained role for the judiciary in adjudicating human rights disputes.44 Sumption, however, also 41 42

43 44

Paul Craig, Administrative Law (4th edn) (Smith and Maxwell, 1999), pp 590–​591. See Eva Brems and Laurens Lavrysen, ‘ “Don’t use a sledgehammer to crack a nut”: less restrictive means in the case law of the European Court of Human Rights’ (2015), Human Rights Law Review, 15(1): 139. JAG Griffith, ‘The Political Constitution’ (1979), Modern Law Review, 42(1): 1, 14. Jonathan Sumption, ‘The Reith Lectures 2019: Law and the Decline of Politics Lecture 3’, BBC Radio 4 (4 June 2019):  accessed 1 July 2020.

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stresses that ‘some development of the text is unavoidable when applying an abstract statement of principle to concrete facts’ and argues further that ‘some concepts in the ECHR, such as the notion of inhuman or degrading treatment, plainly do evolve over time with changes in our collective values’.45 In so doing, he reveals that interpretation is necessary and some concepts ‘plainly evolve’, implying that interpretations in these contexts are uncontroversial. Sumption intimates that there is some residual normative justification for human rights, but he glosses over the fact that –​even with regard to absolute rights, such as the prohibition on inhuman and degrading treatment –​people still disagree over the parameters of these rights. Sumption’s distinction between values that have ‘plainly changed’ over time and instances where the ECtHR has ‘gone much further than that’ is therefore untenable, falling into the exact same trap of moral universalism that he accuses human rights defenders of. The point I  make here is not that courts should just ignore these disagreements and impose their own view of the matter. Indeed, this conception of judicial review and interpretation of human rights texts ignores the fact that in an international context, the ECtHR has developed the concept of a ‘margin of appreciation’ to reflect concerns regarding the legitimacy of an international court inquiring into the assessments made by the democratic branches.46 This is similar, to an extent, to the concept of ‘deference’ seen in domestic courts.47 Disagreement, therefore, is often built into interpretations of human rights. Further, it is rarely the case that a court’s decision is the ‘final say’ on an issue. Here again we see the 45 46

47

See n 43, Chapter Three, p 4. See Yutaka Arai-​Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002). See Aileen Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010), Law Quarterly Review, 126: 222.

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importance of fostering a ‘culture of justification’ as judicial pronouncements on human rights claims feed into democratic discourse regarding how to rectify any potential breach. The manner in which this occurs can vary from constitution to constitution and treaty to treaty, but in certain instances this can even lead courts to change their minds regarding how the text in question ought to be interpreted.48 This so-​called ‘dialogue’, therefore, is a two-​way street.49 Freedom of assembly and association during lockdown

In a pandemic that spreads through close personal contact, it makes sense that the right to freedom of assembly and association would be one of the qualified rights affected.50 Article 11 is designed to ensure that people can come together; but large gatherings of people, or gatherings of people from disparate areas, create the exact conditions in which a virus can be transmitted, causing a pandemic to spread. During the COVID-​19 pandemic, many states took steps to limit public gatherings, including: bans on public gatherings over a certain size; closing churches and schools; and even prohibiting persons from different households from meeting up. In this way, states sought to break the social networks through which the coronavirus spread.51 Notably, prohibitions 48

49

50 51

See Al-​Khawaja and Tahery v United Kingdom [2011] ECHR 2127, where the Grand Chamber of the ECtHR departed from the reasoning of the 2009 Chamber judgment regarding hearsay evidence, acknowledging the UK Supreme Court judgment in R v Horncastle [2009] UKSC 14, where the UK court also refused to follow the Chamber judgment, as it believed the ECtHR did not sufficiently appreciate or accommodate particular aspects of UK domestic law on this question. See Peter Hogg and Allison Bushell, ‘The Charter Dialogue between Courts and Legislatures (Or Perhaps the charter of Rights Isn’t Such a Bad Thing After All)’ (1997), Osgoode Hall Law Journal, 35: 75. Article 11 ECHR. Adam Kucharski, The Rules of Contagion (Profile Books, 2020), pp 62–​66.

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on religious services would, in turn, also impact upon the right to freedom of thought conscience and religion protected by Article 9 ECHR.52 Limiting freedom of assembly and association can therefore affect the fundamental identity of a person, with knock-​ on effects on the right to privacy and family life.53 It can also have a major impact upon political life in a democracy. Political organizations, advocacy groups and trade unions are all important dimensions of ensuring that people can express themselves and exercise influence on those who claim to speak on their behalf. Trade unions themselves are given express acknowledgement in Article 11, reflecting the idea that people have a right to organize collectively in the workplace and to take lawful strike action.54 By interfering with people’s right to publicly protest in large groups and to organize effectively, social distancing measures in a pandemic could also have a substantial negative impact upon political discourse in a state. That said, during the COVID-​ 19 pandemic, many European states were rocked by protests against racial injustice triggered by the Black Lives Matter (BLM) movement in the US. These BLM protests dwarfed earlier protests by anti-​lockdown libertarians which, in one case, amounted to armed masked individuals ‘occupying’ the capitol building in Lansing, Michigan.55 Despite express laws banning protests in several European states, many BLM protests went ahead. In England, for example, organizers did attempt to ensure that protesters practised social distancing and stayed

52 53 54 55

Article 9 ECHR. Article 8 ECHR. Article 11.1 ECHR. Lois Beckett, ‘Armed protesters demonstrate against COVID-​19 lockdown at Michigan capitol’, The Guardian (30 April 2020):  accessed 1 July 2020.

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two metres apart from each other.56 Yet this would still not detract from the fact that such individuals were part of a group as defined by the UK’s emergency regulations and, therefore in principle, potentially committing an offence.57 Instead, it was probably the case that police and other public officials exercised their discretion in deciding whether to intervene or not. In most instances, this was a wise decision, given that the protests were about systemic racism, of which the application of police discretion comprises a large part. Nevertheless, this still raises clarity and consistency concerns –​points that will be returned to in Chapter Five (The End of the Pandemic Emergency), when appraising the discriminatory potential that many pandemic powers may have, particularly as lockdowns are lifted.58 Further, the application of discretion allowing protests to go ahead in one instance, does not necessarily mean that this will be the case for all protests everywhere. Protests could be cracked down on under the guise of preventing a pandemic from spreading. Individuals could then be prosecuted for breaching social distancing rules. The fact that it is police discretion preventing this in certain instances should be of small comfort. Again, the fact that many states did not derogate from the ECHR in order to implement these laws should also be of small comfort. Instead, this sends out the signal that such an interference with one’s fundamental political rights is permissible under the ordinary ambit of the Convention. It is an interference that is not quarantined to the discrete conditions of a ‘war or other public emergency threatening the life of the nation’.

56

57 58

Alexandra Topping, Dan Sabbagh and Severin Carrell, ‘Mass anti-​ racism protests take place in cities across UK’, The Guardian (7 June 2020):  accessed 1 July 2020. Section 7, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. See n 61, Chapter Five.

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In this manner, many states are attempting to accommodate temporary emergency powers through the proportionality test built into Article 11, reasoning that the interference is proportionate ‘for the protection of health’. To do so, however, leaves this principle free to be applied in situations beyond a pandemic. Further, the aforementioned example of the BLM protests only serves to underline how one form of emergency can trigger another form of emergency –​and thus the powers enacted to tackle one phenomenon are easily adaptable to be deployed to another, ‘less objective’ threat. Pandemics and freedom of expression

Like the right to freedom of assembly and association, the right to freedom of expression protected by Article 10 ECHR is fundamental to the autonomy and dignity of a person –​and vital in a healthy democratic society. It is also one that, ostensibly, should not be affected by a pandemic. It is important to note, however, that prohibiting public events, and prohibiting or criminalizing protests, can affect people’s right to express themselves.59 That stated, pandemics can affect the right to freedom of expression in much blunter ways. For example, it is likely that Armenia derogated from the right to freedom of expression under Article 10 ECHR during the COVID-​19 pandemic. Although Armenia did not expressly state that it was derogating from Article 10, its notification to the Council of Europe contained detailed provisions regarding the ‘prohibition of separate publications and reports through mass media’.60 Instead,

59

60

See Mătăsaru v Republic of Moldova (App. no. 69714/​16 and 71685/​16), judgment of 15 April 2019, where the ECtHR found the applicant’s conviction for an ‘obscene’ demonstration outside a prosecutor’s office violated Article 10 ECHR. ‘Reservations and Declarations for Treaty No.005 –​Convention for the Protection of Human Rights and Fundamental Freedoms’ (see n 17, Chapter Three).

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all media reports regarding the scale of the infection had to make reference to official state information provided by the ‘Commandant’s Office’. The legitimate aim of this was stated as trying to prevent ‘information causing panic or creating a panic situation’.61 Given the fundamental importance of the right to freedom of expression and the role of the media as a public watchdog, the compatibility of this provision with Article 10 was highly suspect.62 Even with a derogation to Article 10 in effect, it is most likely that this measure would still fall foul of the requirement that emergency measures be ‘proportionate to the exigencies of the situation’. Discrepancies between officially reported death tolls and, for example, ‘excess deaths’ when compared with previous years, were seen across many countries during the COVID-​19 pandemic.63 Yet reporting such discrepancies did not create a ‘panic situation’. It is difficult to see how such a response can be deemed rationally connected to the objective, let alone ‘proportionate to the exigencies of the situation’. Consequently, measures such as that taken by Armenia are a wholly illegitimate response to a pandemic and should not be viewed as compatible with the requirements of the Convention, regardless of whether a state of emergency under Article 15 is declared. Pandemics and the right to property

One of the more substantial rights impacted upon by state responses to COVID-​19 is the protection of property outlined in Article 1 of the first protocol to the ECHR. The right to private property has three distinct rules: 61 62 63

See n 17, Chapter Three. Sunday Times v UK (No 2) (1991) 14 EHRR 299, [51]. Robert Booth, ‘Excess deaths in UK under coronavirus lockdown pass 63,000’, The Guardian (9 June 2020):  accessed 1 July 2020.

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The first rule, which is of a general nature enunciates the principle of the peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the [contracting] states are entitled, amongst other things, to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.64 Through the state’s power to control the use of property ‘in accordance with the general interest’, measures can be introduced to force businesses to close and to take other steps to implement social distancing during a pandemic. The impact of these measures were unprecedented, with Gross Domestic Product (GDP) in the Eurozone area falling by 3.1 per cent in the first three months of 2020, even before the effects of the strictest of lockdown measures were felt in most European states.65 In the UK, GDP fell by 10.4 per cent in the three months to April 2020;66 throughout the 2008 recession, GDP shrank by no more than 2.1 per cent in a single quarter.67 In this way, state responses to COVID-​19 have strictly controlled the use of property in accordance with the wider 64 65

66

67

Sporron and Lönnroth v Sweden (1982) 5 EHRR 35 [61]. ‘GDP down by 3.6% and employment down by 0.2% in the Euro area’, Eurostat (9 June 2020):  accessed 1 July 2020. ‘GDP Monthly Estimate, UK:  April 2020’, Office for National Statistics (12 June 2020):  accessed 1 July 2020. See n 65, Chapter Three.

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public interest, with both these measures and the virus itself inflicting substantial economic loss on many businesses. Despite the unprecedented and exceptional nature of these measures, only Albania, Estonia and Georgia expressly derogated from Article 1 of Protocol 1 ECHR.68 Here again, we see the idea that the existing parameters of the right are instead capable of accommodating such responses; and here again, the question arises as to whether this principle can be quarantined to exceptional situations. A further area affected was the rebalancing of the property rights of landlords with that of their tenants. Many states introduced rent control measures and freezes on evictions, to ensure that people were able to practise social distancing safely during the lockdown. The immense economic consequences of the pandemic –​and commensurate increase in the unemployment rate –​meant that there was a significant possibility of an increase in people being unable to pay their rent. Here, the state’s obligation to protect the rights of others becomes paramount. In the past, the ECtHR has found that the inability of a landlord to evict their tenants constituted a violation of Article 1 of Protocol 1; however, such cases concerned long periods of time before the landlord could evict.69 As emergency prohibitions on evictions in the context of the pandemic will probably be of a considerably shorter duration than these cases, it is likely that they will not breach the Convention. Further, these eviction freezes are likely to be important where the usual systems of tenant protection, such as impartial tribunals, may not be operating effectively. 68

69

Armenia and Romania most likely impliedly derogated from Article 1 of Protocol 1 in light of the information contained in their notification of derogation to the Council of Europe. It is unclear what articles San Marino and Serbia derogated from. See ‘Reservations and Declarations for Treaty No.005 –​Convention for the Protection of Human Rights and Fundamental Freedoms’ (n 17, Chapter Three). Immobiliare Saffi v Italy (1999-​v) 30 EHRR 756; Harris, O’Boyle and Warbrick (n 39, Chapter Three), p 689.

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Often, evictions trigger other issues regarding the right to private and family life under Article 8. The protection of the rights of others, therefore, is an important factor, when appraising the restriction of property rights. Here, we again see the pervasive effect that an overemphasis on negative liberty could have on assessing where this balance should be struck, which could impede necessary and fair state responses to a pandemic. Conclusions: to derogate or not to derogate? Problems arising from restrictions on the right to property in a crisis –​but without derogation using Article 15 ECHR –​ can already be seen in the jurisprudence of the ECtHR. In Koufaki and Adedy v Greece, the ECtHR upheld substantial austerity measures introduced by Greece in response to the 2008 financial crisis.70 These included reductions in remuneration, benefits and pensions, which the applicant claimed breached the right to property in Article 1 of Protocol 1. The ECtHR, however, refused to hear the case in full on the basis that the applicant’s claim was manifestly ill-​founded. In justifying this extremely deferential finding towards the Greek government, the Court stressed the ‘existence of an exceptional crisis without precedent’. Despite the exceptional nature of the 2008 financial crisis, however, this principle is untethered from the dire financial conditions Greece faced in 2008. This is evidenced in the context of the 2020 COVID-​19 pandemic where some commentators used this principle in Koufaki to suggest that substantial interferences with rights can occur without the need for derogation.71 Not only, therefore, is this principle 70 71

(App. no. 57665/​12), judgment of 7 May 2013 [37]. Jeremy McBride, ‘An Analysis of Covid-​19 Responses and ECHR Requirements’, ECHR Blog (27 March 2020):  accessed 1 July 2020.

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untethered from the discrete conditions in which it was elucidated, but it is also untethered from the specific article in question –​Article 1 of Protocol 1. Without the clear quarantining effect of Article 15, problematic judgments like this are likely to recur, creating problems for human rights in future crises. Ultimately, I contend that failure to declare a state of emergency –​and instead attempting to accommodate emergency powers through the ordinary parameters of normalcy –​risks normalizing these exceptional powers. It risks permanently recalibrating human rights norms downwards, without the quarantining effect of a de jure declaration of a state of emergency. That stated, the efficacy of the quarantining effect of Article 15, and indeed all emergency regimes, is dependent upon whether the discrete conditions they outline actually provide a robust check on this power to declare an emergency. In the context of the ECtHR, and assessing whether a ‘public emergency threatening the life of the nation’ exists, the ECtHR has been highly deferential to the national authorities on this question. On numerous occasions, the ECtHR has stressed that: by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter, a wide margin of appreciation should be left to the national authorities.72 Domestic courts, too, have been deferential on this question, thus illustrating that it is not simply the international

72

Şahin Alpay v Turkey App. no. 16538/​17 (20 June 2018) [75].

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dimension of the ECtHR that affects its robust scrutiny of emergency powers. Rather, it is the case generally of the judiciary’s perceived weak legitimacy to scrutinize these questions. This may appear to undermine the case that derogations should be used to confront a pandemic. However, undue deference does not simply afflict Article 15; instead, it is evident in many cases pertaining to severe crises in a state, regardless of whether an emergency has been declared. Koufaki and Adedy v Greece and the compatibility of austerity measures taken by Greece is just one example of this. Indeed, it is this very risk of the ECtHR and domestic courts taking a deferential approach to decisions taken by the legislature and executive without a de jure declaration of emergency, that underlines the weakness in the ‘business as usual’ approach. Crises, regardless of a de jure declaration of a state of emergency, have the propensity to produce bad judgments. Much like the exceptional powers that judges are asked to pronounce upon, this problematic jurisprudence may need quarantining too. It is for this reason, therefore, that the quarantining potential of a de jure declaration of a state of emergency is so important. A weak judicial approach can end up giving emergency powers the legal stamp of approval, enhancing their legitimacy and, in turn facilitating their entrenchment. Rather than promoting a ‘culture of justification’, the opposite can occur –​and what David Dyzenhaus terms ‘legal grey holes’ can be created.73 These are zones of decision making where it looks as if there is judicial scrutiny of the powers in question, but it is so light touch that it may as well be non-​existent. This enhanced legitimacy can also discourage other branches of government such as the legislature

73

David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006), pp 42–​50.

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from exercising its own oversight, further weakening scrutiny of the emergency powers in question. In the next chapter, we will explore the importance of democratic checks on power in a time of emergency, and the unique challenges that pandemics pose to democracy in comparison to other emergencies.

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FOUR

Pandemics and Democracy Introduction Chapter Two (Pandemics and Human Rights:  Non-​ Derogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights) focused on the impact that pandemics can have on human rights. I argued that declaring a state of emergency would be the best way to ensure that these exceptional powers remain temporary and that their deployment would not lead the way to their future application outside a pandemic situation. Yet the judiciary alone cannot –​and should not –​be the sole defender of human rights; the legislature and the executive must also take rights seriously. Furthermore, the impact of emergencies are not limited solely to human rights. To recall from Chapter One (The Pandemic State of Emergency), a key reason why the Roman Republic appointed a dictator in an emergency was because of the cumbersome constitutional checks and balances that the Republic had in place to prevent absolute power from being consolidated in a single institution.1 As emergencies require swift responses, today this invariably means that the executive takes charge, with the judiciary and

1

Text to n 18, Chapter One.

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the legislature taking a back seat. Consequently, emergencies impact on the separation of powers, affecting how these other branches can fulfil their constitutional functions. While this is the case for all emergencies, as we shall see, pandemics raise their own unique challenges –​in particular for legislatures. That stated, the case for executive supremacy during a pandemic is also considerably weaker. The importance of legislatures On 28 August 2019, UK Prime Minister Boris Johnson cast the die. Long before anybody had ever heard of COVID-​19, Parliament was to close. It was to be ‘prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019’.2 This five-​week prorogation was considerably longer than the usual couple of days, with many crying foul and arguing that the real motivation was not the stated reason of ‘preparing a new Queen’s Speech’, but instead to frustrate Parliament’s capacity to pass legislation that may prevent the UK from leaving the EU without a deal on 31 October 2019.3 The move sparked outrage and the almost immediate launch of court proceedings to have the prorogation declared unlawful.4 The case eventually found its way to the Supreme Court which, in a historical and unanimous decision, found the prorogation unlawful. The Supreme Court set out the following test for an unlawful prorogation:

2 3

4

R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 [15]. Jessica Elgot and Heather Stewart, ‘Boris Johnson move to suspend parliament sets up clash with MPs’ The Guardian (28 August 2019):  accessed 1 July 2020. Miller and Cherry (n 2, Chapter Four).

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… a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.5 From this, we can see two important functions that a parliament  –​all parliaments  –​perform:  the making of laws; and the holding of the executive to account. These two duties will vary according to the constitutional composition of a state. States with a presidential system or complete separation between legislature and executive may have different ways of holding the executive to account; nevertheless, there will be some checks –​for example, through legislative oversight of expenditure.6 These two functions –​making laws and holding the government to account –​are severely impacted when a parliament is not in session for whatever reason, be it because it has been prorogued for an inexplicably long period of time, dissolved before the holding of elections or, as in 2020, its functions have been impacted by a severe pandemic. Delegating power to the executive On 11 September 2001, the US Senate, in an unprecedented act, cancelled its session for the day before its appointed

5 6

Miller and Cherry (n 2, Chapter Four) [50]. In the US, for example, the so-​called ‘power of the purse’ is vested in Congress by virtue of Article 1.9.7 and Article 1.8.1 of the US Constitution.

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convening time, out of fear that Capitol Hill would be targeted by terrorists.7 The House of Representatives was also evacuated. The very next day, however, both returned. For the duration of the Second World War, the UK Parliament continued to sit.8 The symbolic defiance of a democratic legislature continuing to function in the face of an emergency is powerful and poignant, but a pandemic is different; a virus does not respond to acts of defiance. A virus pays no heed to symbolism. Instead, it is the very act of sitting that constitutes the danger. The parliamentarians are the threat, and having so many individuals in such proximity to each other produces the precise conditions in which a virus such as COVID-​19 can be transmitted. The fact that parliamentarians tend to be representatives from specific regions across a country, and return regularly to these constituencies, also makes them potential vectors for spreading the virus across disparate regions. For this reason, a pandemic can make it incredibly difficult and dangerous for a legislature to sit. That stated, even if legislatures can sit, the temptation to delegate power to the executive in an emergency is still prevalent. To recall from Chapter One (The Pandemic State of Emergency), the executive is often seen as the branch most suited to act in a crisis, owing to its ability to respond swiftly, decisively, and to hear secret information.9 The executive can thus make a claim to expertise in a crisis that the other branches of government cannot.

7 8

9

‘The Capitol Building as a Target’, US Senate:  accessed 1 July 2020. JB Firth, ‘When Parliament remains on duty in uneasy times –​Aug 2, 1939’, The Telegraph (2 August 2009):  accessed 1 July 2020. See from n 24 to n 26, Chapter One.

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The temptation, therefore, to delegate law-​making powers to the executive is substantial –​and this is precisely what happened in 2020. Across the world, states enacted new legislation, conferring broad discretionary power on the executive. In Ireland, for example, the Oireachtas (Ireland’s bicameral legislature consisting of the lower house called the Dáil and the upper house called the Seanad) enacted the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Health Act 2020)  in response to the COVID-​19 pandemic. Part III of the Health Act conferred on the Minister for Health the power to make regulations ‘for preventing, limiting, minimising, or slowing the spread of COVID-​19’. It also empowered the Minister for Health to pass regulations that can include the power to restrict travel to or from the state, require persons to stay in their homes and prohibit the holding of events. Section 10(i) further expanded upon these already broad powers to allow the minister to enact ‘any other measures the Minister considers necessary in order to prevent, limit, minimise or slow the spread of COVID-​19’. Ireland’s powers were not an outlier in this regard. Other states took similar steps to confer new powers on the government or for the government to make use of existing powers to make new regulations. In the UK, the Coronavirus Act 2020 was introduced to Parliament on 19 March 2020 and became law less than a week later. The act contained a broad array of powers, ranging from expedited registration of healthcare professionals, to regulation of food supply, amendments to social welfare payments and additional powers of detention for individuals suspected of having COVID-​19. Further, in the context of England and Wales, new regulations were passed using Section 45R of the Public Health (Control of Disease) Act 1984 (PHA 1984) to enforce lockdown, making it unlawful for a person to leave their home without reasonable excuse. Concern was raised as to why the government was using this act rather than the Civil Contingencies Act 2004 (CCA

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2004) –​a piece of permanent emergency legislation designed to be used in the event of a future emergency.10 The COVID-​ 19 pandemic seemed to be exactly the kind of situation in which such a law could be used. However, any regulation made by a minister under the CCA 2004 would lapse after a maximum period of 30 days.11 A minister would also have to lay emergency regulations before Parliament as soon as reasonably practicable and these regulations, unless Parliament passed a resolution approving them, would lapse after seven days.12 In comparison, the legislative oversight required by the PHA 1984 and the Coronavirus Act 2020 was considerably more lax. In particular, the Coronavirus Act 2020, as initially drafted, would have remained in force for two years before any opportunity for parliamentary oversight could have occurred.13 These powers could also have been extended beyond two years in six-​month increments. Responding to criticism, the UK government introduced a six-​month renewal clause, requiring the House of Commons to renew the powers for a further six months.14 Despite this concession, the legislative checks on the Coronavirus Act 2020

10

11 12 13

14

Andrew Bilick and Clive Walker, ‘Why did the government not use the Civil Contingencies Act?’, The Law Society Gazette (2 April 2020):  accessed 14 June 2020. CCA, s26.1(a). CCA, s27. ‘The Guardian view on the coronavirus bill:  strengthen the sunset clause’, The Guardian (19 March 2020):  accessed 1 July 2020. Coronavirus Act 2020, ss 89–​90. For further analysis of sunset clauses, see Seán Molloy, ‘COVID-​19, emergency legislation and sunset clauses’, The University of Edinburgh: COVID-​19 Perspectives (11 May 2020):  accessed 1 July 2020.

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are still considerably weaker than the CCA 2004. This is further underlined by the minimal opportunity of just six days that was given for parliamentary oversight during the enactment of the Coronavirus Act 2020. Six days is a significantly truncated period of time to debate a piece of legislation that contained such broad-​sweeping and unprecedented powers, no matter how necessary such powers may be. Such an expedited process is common at the outbreak of an emergency, when a swift response is required. In contrast, the CCA 2004 was enacted after ‘a prolonged consultation period led by a special parliamentary joint committee’.15 Process is often considered integral to the legitimacy of legislation, as legislation is often considered to be the product of disagreement.16 There must, therefore, be in place the necessary institutions and time for debate for this disagreement to be aired and resolved. Legislation expedited during an emergency suffers from a defect of legitimacy from the moment of its enactment. The legislative checks on executive power in the CCA 2004 are an example of best practice in the area of emergency powers. To recall from Chapter One (The Pandemic State of Emergency), the Romans used the system of heteroinvestiture, to ensure that the person declaring the emergency did not become the dictator.17 Today, however, it tends to be the executive that declares the emergency and the executive whose power increases following such a declaration. Furthermore, we should not simply let down our guard because the government has not expressly declared an emergency or derogated from an international human rights treaty. What matters is that it acts as if an emergency exists, and calls for exceptional powers to tackle the threat at hand. It is right, therefore, to have robust oversight mechanisms for these powers, given their potential for 15 16 17

See Bilick and Walker (n 10, Chapter Four). Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999), pp 23–​24. See n 20, Chapter One.

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abuse. Yet legislative oversight mechanisms –​such as time limits on legislation or requirements for parliamentary committee oversight –​are also based on the assumption that Parliament is functioning and can continue to sit. The CCA 2004 does contain alternative arrangements for when Parliament is not sitting –​for example, during prorogation or adjournment –​but these provisions put in place requirements for Parliament to be recalled. We see similar examples in constitutional provisions for emergency powers, with the executive often being empowered to declare the emergency and to enact responsive measures, but a procedure for subsequent legislative approval and oversight is then required.18 This was a common approach taken by many states to the COVID-​19 pandemic. However, all these legislative checks assume that the legislature is capable of sitting. The COVID-​19 pandemic thus exposed a gap in emergency powers thinking and a challenge that needed to be addressed: how can we ensure sufficient legislative oversight in a time when it may be dangerous for the legislature to sit under normal conditions? One solution would be to take the approach of the UK and to use a ‘sunset clause’ (with a fixed expiration date) of longer duration. Thus, Darragh Coffey concludes that the UK’s six-​month sunset clause for the Coronavirus Act 2020 ‘appears to strike an appropriate balance between the need to maintain parliamentary oversight of the significant powers created by this Act, and the concerns that Parliament may not be able to operate as normal during the crisis’. Coffey also suggested that this six-​month review is broadly in line with the approaches taken to COVID-​19 in other common law jurisdictions.19 That stated, an additional solution would be to explore methods that would allow 18 19

See n 22, Chapter One. Darragh Coffey, ‘The Coronavirus Act 2020: When Legislation Goes Viral (Part One)’, UK Human Rights Blog (2 April 2020):  accessed 14 June 2020.

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legislatures either in person or virtually to sit and perform their duties of making laws and holding the executive to account during an emergency. Helping legislatures to sit The 2020 COVID-​19 pandemic saw many states introduce innovative methods for enabling parliamentarians to continue to do their job safely. Pandemics are certainly not the only kind of emergency that could prompt a change in how legislatures operate. A  war or terrorist threat could affect the safety of parliamentarians, for example. These threats can be alleviated through increased security measures or through moving the parliament to a place where the threat is diminished. Much of the architecture around Capitol Hill in Washington DC and other legislatures across the globe have been fortified in response to a perceived increase in threats from terrorism. Additional security protocols, such as metal detectors or advance registration for visitors, have also been put in place.20 Parliaments can take similar ‘target hardening steps’ during pandemics, making it more difficult for the virus to spread. During the COVID-​19 pandemic, the Inter-​Parliamentary Union catalogued an array of different responses taken by parliaments across the world. Some of these measures could be classified as ‘target hardening’. For example, the Azerbaijani parliament continued to hold physical meetings during the pandemic, but with MPs and staff required to wear masks and gloves and to use hand-​sanitizer;21 however, MPs over the

20

21

‘Registering to visit the dome of the Reichstag Building’, Deutscher Bundestag:  accessed 1 July 2020. See ‘Country compilation of parliamentary responses to the pandemic’, Inter-​Parliamentary Union (first published 25 March 2020, as updated to 1 July 2020):  accessed 1 July 2020.

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age of 65 did not attend, raising concerns as to the discriminatory and disenfranchising effect of such measures in isolation. Other states, such as Slovakia and Serbia, implemented similar measures, with the latter installing protective plexiglass partitions around each MP’s seat. Meanwhile, states such as South Korea introduced temperature checks for persons entering parliamentary buildings.22 Several parliaments continued to operate to an extent, but with social distancing measures in place. The Israeli Knesset enabled all 120 MPs to attend plenary sessions, while maintaining a distance of 2 metres per person, by dividing members among all three levels of the plenary hall, sitting MPs in areas that previously would have housed the public galleries.23 Austria, too, allowed MPs to sit in the gallery, while Croatia held a plenary session in three different halls.24 Other states responded by holding parliamentary sessions in different, larger buildings, so that social distancing could be observed. The Swiss bicameral legislature convened an extraordinary week-​long session at the start of May 2020 that was held in the Bern Expo exhibition centre, rather than the usual federal palace. This would be followed by the summer session at the same venue on 2–​19 June.25 In Ireland, following the agreement of a programme for government, a full plenary session of the Dáil to elect Micheál Martin as Taoiseach (Irish prime minister) was held in the Dublin Convention Centre on 27 June 2020, rather than in

22 23 24 25

See n 21, Chapter Four. See n 21, Chapter Four. See n 21, Chapter Four. Urs Geiser, ‘Parliament resumes its role as political watchdog’, Swissinfo.ch (4 May 2020):  accessed 1 July 2020.

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the usual parliamentary building of Leinster House, to allow for social distancing.26 Many states attempted social distancing, by restricting the number of legislators allowed in a chamber and by reducing the number and duration of parliamentary sessions and committees.27 However, these responses are far from ideal. Restricting the duration and number of sessions, by definition, reduces the opportunity for parliamentary scrutiny of the executive. In many instances, legislative sessions were cancelled altogether during the COVID-​19 pandemic.28 While this may be an understandable response in the early days of a pandemic, once emergency laws are enacted and the longer such a situation continues, the more worrying it is for democracy. There may also be constitutional and parliamentary procedural protections that are undermined by this approach. For example, it is good practice that a legislature must meet a quorum of attendees for a valid parliamentary session to be held. Attendance cannot be below this number for a valid vote to be carried out. The quorum is designed to ensure that the legislature is as representative as it is claimed to be, so the composition of the legislature when it votes must be representative of its members.29 A quorum is a vital procedural safeguard that reduces the possibility of mechanical manipulation of the numbers present in the chamber, ensuring that a 26

27 28 29

Marie O’Halloran, Fiach Kelly and Pat Leahy, ‘Micheál Martin elected Taoiseach of Coalition’, Irish Times (27 June 2020):  accessed 1 July 2020. See Inter-​Parliamentary Union (n 21, Chapter Four). See Inter-​Parliamentary Union (n 21, Chapter Four). See William Paul White, ‘History and philosophy of the quorum as a device of parliamentary procedure’ (1967), Graduate Student Theses, Dissertations and Professional Papers, 5079, University of Montana:  accessed 1 July 2020.

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minority cannot transform itself into a majority, or a majority cannot force through its decisions without first hearing the minority. In response to COVID-​19, the German Bundestag’s rules of procedure were amended to reduce the quorum from more than half the MPs present (a number greater than 355 members) to a quarter.30 Tunisia abandoned altogether the need for a quorum for its Assembly of People’s representatives.31 In light of the importance of the quorum as a form of enhancing the procedural legitimacy of the legislature, such adjustments to quorum requirements should, at most, be taken only as a last resort. Many states chose not to reduce quorum requirements, but still sought to limit the number of legislators allowed in a chamber. In Australia, for example, pairing of government and opposition members and senators was used to maintain the party composition of the Houses, despite fewer persons being present during these sittings.32 Such a system would work well in a parliamentary system where a strict whipping system is in place and parliamentarians tend to vote along party lines. However, it would be limited in a legislative system such as the US’s, where towing the party line is not as strictly enforced, or where a large percentage of independent MPs are elected. Consequently, there are limitations to these adjustments to legislatures during a pandemic that still require all persons to be present to vote or to be able to speak in a debate.

30

31 32

‘Germany: Parliament changes rules of procedure to ensure functioning during COVID-​1 9 pandemic’, US Library of Congress (15 April 2020):  accessed 1 July 2020. See Inter-​Parliamentary Union (n 21, Chapter Four). See Inter-​Parliamentary Union (n 21, Chapter Four).

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Alternative methods of enabling legislatures to sit In addition to, or instead of, these physical attempts at facilitating parliamentary sittings, many states have turned to digital solutions to address these concerns during the COVID-​19 pandemic. These digital solutions can be split into two categories –​remote hearings and remote voting –​the latter being more controversial than the former. Through technology, all members of parliament can represent their constituency, without placing themselves or others in danger. Social distancing and the vital function of the legislature, therefore, can both endure simultaneously. For some states, however, remote meetings were not possible. In Austria, remote meetings are impermissible under the Federal Constitution or Rules of Procedure;33 Austria was instead limited to implementing target-​h ardening responses and social distancing measures. In Ireland, a constitutional row erupted over whether remote hearings were possible. The dispute arose over the meaning of Article 15.1.3° of the constitution, which states that: ‘The Houses of the Oireachtas shall sit in or near the City of Dublin or in such other place as they may from time to time determine’.34 On this basis, it was contended that remote hearings and sittings were not possible, arguing that Article 15.1.3° required a physical sitting ‘in or near the City of Dublin or in such other place’. According to legal advice received by the Ceann Comhairle (speaker of the Dáil Éireann), the meaning of ‘place’ in Article 15.1.3° meant ‘an assembly or a group of people gathered together in one place for a common purpose’ and a virtual parliament would not meet this criterion. This overly literal interpretation of Article 15.1.3° was critiqued on the basis that the purpose underpinning

33 34

See Inter-​Parliamentary Union (n 21, Chapter Four). Article 15.1.3°, Constitution of Ireland.

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it was to ensure the integrity of the Dáil voting record.35 There is no reason, however, to assume that an online system could not be developed that would ensure that this record was accurate.36 Such concerns would not affect hearings where votes did not take place; however, on this point, the issue of whether parliamentary privilege would apply to a digital Dáil was raised as a further objection.37 In contrast, many states took innovative steps to allow for remote parliamentary sittings. Some states took steps to allow committees to operate remotely,38 whereas others went further to enable remote plenary sessions too.39 France allowed for remote hearings, but stopped short of allowing remote voting. Again, concern centred on the integrity of the voting system, and how to ensure that the person voting is actually who they say they are.40 Despite this, many parliaments did allow for remote voting. The European Parliament, for

35

36

37 38 39 40

Conor Casey, Hilary Hogan and Ciarán Toland, ‘Remote Sittings of the Houses of the Oireachtas: constitutional to a potential democratic deficit’, Constitution Project @UCC (7 April 2020):  accessed 15 June 2020; David Kenny, ‘Remote sittings for Ireland’s parliament: questionable constitutional objections’, UCL: The Constitution Unit (23 May 2020):  accessed 15 June 2020; Seán Ó Conaill, ‘Remote Dáil Sitting –​A Textual Analysis’, Constitution Project @UCC (20 April 2020):  accessed 15 June 2020. Jennifer Bray, ‘Dáil electronic voting review recommends installing extra cameras for €50,000’, Irish Times (6 May 2020):  accessed 15 June 2020. See Kenny (n 35, Chapter Four). Croatia, for example. See Inter-​Parliamentary Union (n 21, Chapter Four). See Inter-​Parliamentary Union (n 21, Chapter Four). See Inter-​Parliamentary Union (n 21, Chapter Four).

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example, allowed members to vote by email.41 Chile, too, allowed for remote voting through technology developed by its own technical teams.42 In the UK, the House of Commons adopted a ‘hybrid model’, consisting of a mix of MPs attending remotely and a limited number in the chamber, spread out in order to comply with social distancing guidelines. On 12 May 2020, the House of Commons held its first-​ever remote vote on a motion on General Debates.43 Despite what many considered to be the success of this system, on 2 June 2020, the House of Commons voted to end the hybrid parliamentary system that had been operating during the lockdown. In future, all parliamentarians would have to be present in the chamber to vote. Many voiced their anger at these plans, as over 100 MPs with underlying health issues risked being disenfranchised under this rush to return to normalcy too soon.44 Given that many of these MPs would have had acute personal understanding of what those most vulnerable to COVID-​19 would be experiencing during lockdown, one would have expected that these voices would be carefully listened to, rather than silenced. To carry out the vote to end the remote system, MPs had to vote in person, leading to what were termed ‘absurd’ scenes of 527 MPs

41

42 43

44

‘How will the vote technically work?’, European Parliament News (14 April 2020, as updated to 13 May 2020):  accessed 1 July 2020. Inter-​Parliamentary Union (n 21, Chapter Four). ‘MPs cast first ever remote votes in Commons Chamber’, Parliament. UK:News (12 May 2020):  accessed 1 July 2020. Josiah Mortimer, ‘Ministers make a vital u-​turn on plans to lock MPs out of Parliament’, Electoral Reform Society (13 June 2020):  accessed 1 July 2020.

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joining a queue of over 1 kilometre in length for almost 90 minutes.45 Following this, the government made a concession, by allowing for proxy votes for those impacted by COVID-​19, and introduced electronic voting machines in Parliament to expedite the voting process. This episode demonstrates how a rush to normalcy too soon can also pose a threat to democracy. In addition to the de facto disenfranchisement of more than 100 out of 650 MPs,46 such farcical scenes –​and requiring lengthy, burdensome queues –​act as a mechanical ‘filibuster’ (a parliamentary tactic to obstruct legislative motions that do not technically breach the rules), adding unnecessary blockages that inhibit a parliament’s ability to hold the government to account. This danger of a rush to normalcy, something that is perhaps novel to pandemic emergencies, will be returned to in the next chapter.47 Ultimately, these digital measures show that it is absolutely possible for legislatures to sit during a pandemic. While many of these measures were essentially assembled in a hasty manner, there is no reason why future remote parliamentary systems could not be designed well in advance of any future emergency. The case, therefore, for executive supremacy during a pandemic is considerably weakened in light of these different mechanisms that can help legislatures to sit. Holding elections during a pandemic During the COVID-​19 pandemic, one of the most significant democratic concerns was the suspension and cancellation 45

46 47

Lisa O’Carroll, ‘MPs join 90-​minute-​long queue to vote to end virtual voting’, The Guardian (2 June 2020):  accessed 1 July 2020. Mortimer (n 44, Chapter Four). See from n 2 to n 19, Chapter Five.

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of elections. In principle, this move is understandable. From election rallies that could amount to superspreading events, to door-​to-​door canvassers creating networks of connections between separate households, to attending your local polling booth to cast your ballot, elections would be highly susceptible to spreading a virus. Once the votes are cast, they need to be counted and this, again, could bring together large groups of people. The possibility of elections being suspended due to a pandemic is substantial. One study documented 28 countries that had national elections in the first three months of 2020 in which 88 million people voted, while 22 elections were scheduled between March and May 2020, when many states were experiencing the peak of the pandemic. Thirty more national elections were due to be held between April and October 2020, with many more at the regional and local level.48 In the US, many states cancelled or suspended Democratic Party primaries to elect their nominee for US president.49 On 8 April 2020, Bernie Sanders dropped out of the race, leaving Joe Biden as the presumptive nominee and rendering these contests a formality;50 nevertheless, primaries continued for candidates for the House of Representatives and Senate. Meanwhile, France cancelled the second round of local elections due to be held on 29 March 2020. The UK

48

49

50

Todd Landman and Luca di Gennaro Splendore (2020) ‘Pandemic democracy: elections and COVID-​19’, Journal of Risk Research (13 May 2020), 2:  Nick Corasaniti and Stephanie Saul, ‘16 states have postponed primaries during the pandemic. Here’s a list’ New  York Times (27 May 2020)  accessed 1 July 2020. Sydney Ember, ‘Bernie Sanders drops out of 2020 Democratic race for president’, New  York Times (16 April 2020):  accessed 1 July 2020.

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also cancelled local and mayoral elections scheduled for May 2020, rescheduling them for the following year.51 The decision to postpone an election is fraught with difficulty, notwithstanding the extenuating circumstances that may warrant this. Delayed elections can cause political uncertainty and increasing instability, which may tempt incumbent governments to make use of the broad emergency powers conferred on them.52 Again, however, insisting on normalcy during a pandemic also raises democratic concerns. In Serbia, for example, protests broke out in July 2020 over a spike in infection rates that resulted from the early lifting of lockdown. Protesters contended that the incumbent government had lifted lockdown simply to allow elections to take place.53 Relatedly, in Poland, presidential elections were scheduled for 10 May 2020.54 Substantial lockdown measures and limiting the use of public spaces, meetings and gatherings, would have had a substantial and negative impact upon the election campaign, undermining the possibility of genuine public debate.55 Notably, Poland’s government did not declare a state of emergency in accordance with its constitution; had

51 52 53

54

55

See Landman and di Gennaro Splendore (n 48, Chapter Four). See Landman and di Gennaro Splendore (n 48, Chapter Four). Shaun Walker, ‘Violence at Belgrade protest over government’s handling of lockdown’, The Guardian (8 July 2020):  accessed 5 August 2020. Alice Tidey and John Paul Ging, ‘Poland’s presidential election cancelled with just four days to go’, Euronews (7 May 2020):  accessed 1 July 2020. Organization for Security and Co-​operation in Europe (OSCE), ‘Opinion on the Draft Act on Special Rules for Conducting the General Election of the President of the Republic of Poland ordered in 2020 (Senate Paper No 99)’ OSCE Opinion NR, ELE-​POL/​272/​2020 (27 April 2020):  accessed 2 July 2020, 1.

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it done so, elections would have been cancelled.56 Here again, we see how failing to declare a state of emergency does not necessarily mean that the measures that a state has taken are somehow less exceptional or draconian than a state that has expressly declared an emergency. We also see how de jure states of emergency can actually better protect constitutional norms in exceptional crises than pressing ahead with business as usual. In this instance, the Polish government sought to circumvent the extra protections in place during an emergency, by not declaring an emergency at all. Just days before it was due to take place, Poland’s ruling parties reached an agreement to postpone the country’s presidential elections until 28 June 2020.57 Much of the criticism of Poland’s response, however, was not the cancellation of elections per se, but the government’s intransigence over the issue. The Polish government’s preferred method would have been to hold a postal vote at short notice, but this was criticized as, due to the tight timeframe, questions were raised as to whether it would stand up to democratic standards.58 Democracy should be more than a headcount, and hastily organized changes to the electoral law can undermine the stability and credibility of the electoral process. This is particularly concerning in a state such as Poland, where the erosion of the rule of law at the hands of a right-​wing populist nationalist government were already evident.59

56 57

58 59

See n 55, Chapter Four. ‘Poland picks new date for rescheduled presidential election’, Aljazeera (3 June 2020):  accessed 2 July 2020. OSCE (n 55, Chapter Four) [11]. See Laurent Pech and Kim Lane Scheppele, ‘Illiberalism within: rule of law backsliding in the EU’ (2017), Cambridge Yearbook of European Legal Studies, 19 (December): 3.

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Hastily reorganized elections or insufficiently resilient voting systems, however, are ultimately a product of poor emergency preparedness. While this may be understandable in the context of the COVID-​19 pandemic, the ramifications of which many considered to be wholly unforeseeable, the next pandemic should not provide such an excuse. Emergency preparedness, therefore, is fundamental to ensuring a functioning democracy during a crisis –​a point that will be returned to in Chapter Six (Conclusions: Breathing Space).60 Democracies, pandemics and the failure to respond While pandemics can limit a democracy’s ability to function once states are in the throes of it, what seems to be unique about the COVID-​19 pandemic (relative to other perceived emergency threats) is that some states seemed actively unwilling to take the necessary steps required to confront the crisis at hand. In the aftermath of a terrorist attack, states are often willing to react strongly. Terrorist attacks can emasculate the state, by challenging the very core of what many consider gives the state its legitimacy: its ability to provide security for its citizens.61 The philosopher Thomas Hobbes argued that states emerge as a result of individuals seeking security. For Hobbes: The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly, is to confer all their power and strength upon

60 61

See n 38, Chapter Six. Fiona de Londras, Detention in the War on Terror: Can Human Rights Fight Back? (Cambridge University Press, 2011), pp 1–​35.

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one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will…62 From this, Hobbes contended that you cannot have liberty without security  –​a similar conclusion reached by other thinkers, such as Immanuel Kant and John Locke. To reassert this power to provide security, states have a tendency to react forcefully to a terrorist attack.63 Public support is often strong for such measures as people ‘rally around the flag’.64 Internal opposition also whittles away as left and right agree on the best response to the threat. It is not uncommon for the incumbent government to experience an uptick in popularity following a terrorist attack, as people put aside internal disagreements in the face of what is often represented as an external, existential threat. This, in turn, produces the conditions in which the legislature agreeably confers additional powers on the executive, to respond to the threat at hand. Certainly, evidence of this ‘rally around the flag’ effect and support for incumbent governments can be seen as a result of the COVID-​19 pandemic. In Ireland, the February 2020 General Election resulted in a defeat for the incumbent minority government of Fine Gael supported by the confidence and supply agreement with the other centre-​r ight party Fianna Fáil. For the first time in the history of the state, Sinn Féin received the largest first preference vote. No government was formed by the time the pandemic hit, however, so it was the defeated government that steered the country through the crisis. In February 2020, Fine Gael received just 20.9 per

62 63 64

Thomas Hobbes, Leviathan (first published 1651; Richard Tuck (ed.), Cambridge University Press, 1996), p 120. See de Londras (n 61, Chapter Four). Oren Gross and Fionnuala Ni Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006), pp  64–​66.

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cent of the vote; just over one month later, its support had increased to 34 per cent.65 This pattern was not unique to Ireland. De Vries et al argue that increased incumbent support was also seen in France, Germany, Poland, Italy and Spain.66 Further, they contend that these findings were independent of the government’s actual performance, suggesting that ordinary citizens ‘find it difficult to disentangle performance signals from exogenous shocks outside of the control of the incumbent’.67 Failure to respond to a pandemic, therefore, is not necessarily based upon the assumption that these measures will be democratically unpopular, at least at the outset of the pandemic. An alternative explanation for a hesitancy of some governments to react to a pandemic is that, unlike counter-​ terrorist powers, pandemic emergency powers affect us all. We are all sacrificing our liberty for the enhanced security of us all. Likewise, emergency measures enacted following a terrorist attack also tend to be justified on the basis that liberty is being sacrificed in order to enhance security. Here, security and liberty are conceptualized in a ‘hydraulic relationship’ –​as security increases, liberty decreases and vice versa.68 While superficially this may sound attractive, there are number of issues with this argument. First, it essentially amounts to a consequentialist or utilitarian justification for 65

66

67 68

‘Irish PM’s party sees support surge on coronavirus response-​poll’, Reuters (29 March 2020):  accessed 2 June 2020. Catherine E De Vries, Bert N Bakker, Sara Hobolt and Kevin Arceneaux, ‘Crisis Signaling:  How Italy’s Coronavirus Lockdown Affected Incumbent Support in Other European Countries’, SSRN (20 May 2020):  or See n 66, Chapter Four. See Eric Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty and the Courts (Oxford University Press, 2007), Ch 1.

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restricting rights; however, such ‘ends justify the means’ reasoning, in principle, leaves nothing ‘off the table’. Morally repugnant acts such as torture could all be justified in the name of the common good. Second, the myth that we all sacrifice some of our liberty for enhanced security is deeply problematic in the context of counter-​terrorism. Rather, in the case of terrorism, measures tend largely to be enacted against a ‘suspect community’ –​a sub-​g roup of the population that is singled out and subjected to these measures on the basis of their questionable loyalty towards the state and their sympathies towards the terrorist.69 The term was first coined by Paddy Hillyard, to refer to the Irish as a ‘suspect community’ in the UK during the Troubles, with research suggesting that in recent years, Muslims now fill this role.70 Democracies are notoriously weak at spreading burdens evenly among societies, between the majority and the minority, and this risk is particularly pronounced in an emergency.71 The result is that far from sacrificing all our liberty for enhanced security, we instead sacrifice their rights for our security. In the case of the COVID-​19 pandemic, however, there is no suspect community. Everybody is a potential carrier of the disease and so everybody must follow social distancing guidelines. In this instance, it is a case of sacrificing our liberty for our security. Consequently, pandemic powers may not enjoy the same democratic support as counter-​terrorist powers on the basis that this us-​versus-​them distinction cannot apply.

69 70

71

See Paddy Hillyard, Suspect Community: People’s Experience of the Prevention of Terrorism Acts in Britain (Pluto Press, 1993). See Christina Pantazis and Simon Pemberton, ‘From the “old” to the “new” suspect community: examining the impacts of recent UK counter-​ terrorist legislation’ (2009), British Journal of Criminology, 49(5): 646. Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’ (2002–​2003), Yale Law Journal, 112: 1011, 1027.

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It must be emphasized, however, that the concept of a ‘suspect community’ is not one that should be utilized by states; that is, states should not try to limit the scope of pandemic powers  –​or, indeed, any emergency power  –​by applying them only to the ‘suspect community’ in question. Instead, the concept was developed to emphasize and to critique the discriminatory application of emergency powers, not to justify or excuse them. While the absence of a suspect community that can be scapegoated may explain a state’s reluctance to respond to a pandemic, the stronger explanation is most probably due to the major financial impact of lockdown. The huge contraction in state GDP, coupled with the enormous financial firepower required to support unemployed persons, businesses forced to close, and the substantial additional healthcare costs required to respond to a pandemic, go a long way towards explaining why a state would be reluctant to implement these measures. This reluctance may be further amplified if the government is ideologically opposed to increasing state spending, national debt, and intervention in the economy. Nevertheless, many right-​wing governments did, eventually, take some necessary steps to mitigate the COVID-​19 pandemic.72 This serves to underline the point discussed in Chapter One (The Pandemic State of Emergency) regarding the concept of necessity and how the COVID-​19 pandemic is an ‘ideal’ emergency. Here, the government is taking a decision that it finds unpalatable, even repugnant to its political philosophy; nevertheless, due to the magnitude of the threat at hand, it feels it has no choice but to take the decisions it has to take. That said, while a state may have acted, these forces may emerge to incentivize a state to lift these measures early, as we shall see in the following chapter.

72

See from n 64 to n 67, Chapter Three.

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Conclusions From this brief survey, a pandemic clearly does not justify the complete suspension of legislative activity. Certainly, many solutions enacted by parliaments were not without concern, and did not completely alleviate all problems associated with the impact of the pandemic on the legislature. Curtailing the parliamentary agenda, restricting the numbers who could attend, and altering the parliamentary quorum all have downsides for the important legislative functions of making laws and holding the government to account. Nevertheless, such measures were considerably better than cancelling legislative sessions altogether for the duration of the pandemic. Importantly, the parliaments that could resort to virtual sessions demonstrated that technological solutions can be developed to ensure that parliaments can sit during a pandemic or other emergency, without substantial impact on the legislative functions of passing laws and holding the government to account. Finally, it must be stressed that the theoretical case for executive supremacy over the legislature in a pandemic is weak. There is no reason to assume that the executive has access to information that the legislature cannot be shown, to assist it in its fundamental constitutional duty of holding the executive to account. The executive cannot, therefore, make a claim to expertise during a pandemic in the same way that it might do in a national security crisis. It also follows that if it is possible for legislatures to utilize technologies to enable them to sit virtually, then there is also no reason for a broad conferral of discretionary law-​making authority on the executive, once the initial emergency regime has been established. Moreover, it must be reiterated that while the existence of the emergency and the necessity of the measures may be clear at the outbreak of the emergency, this may not necessarily be the case consistently throughout the emergency, as the crisis progresses. The point at which these exceptional measures should end and

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normalcy should be restored, therefore, may not be as readily identifiable as the start of the emergency. While it may be the case that in the context of counter-​terrorism, governments err on the side of caution and keep the measures for longer than they may be needed, as we shall see in the next chapter, the opposite may occur in the context of a pandemic emergency as states rush to return to normalcy too soon.

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FIVE

The End of the Pandemic Emergency Introduction As pandemics wane, states may be tempted to lift emergency measures as soon as possible. The assumption that the popularity of these measures will wane over time, as lockdown progresses and the pressure to restart economic activity increases, acts as a powerful democratic incentive in favour of a return to normalcy. This stands in stark contrast to national security emergencies such as terrorism where, in general, democratic forces tend to perpetuate emergency powers. We have already seen the problems that this rush to normalcy may cause in the context of vulnerable parliamentarians in the UK being disenfranchised. The ‘rush to normalcy’ can also result in a spike in infections and a ‘second wave’, causing a significant threat to life and to health, raising the exact same human rights concerns discussed in Chapter Two (Pandemics and Human Rights:  Non-​Derogable Rights) that justified lockdown in the first instance. The end of pandemic responses and the lifting of lockdown should therefore be much more gradual than their introduction in the first place. Further, it may not necessarily be the case that this

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process will be linear; retrogressive steps may be needed if infections spike.1 This chapter outlines some of the legal issues that may arise as a result of the lifting of lockdown. I use the distinction made in Chapter One (The Pandemic State of Emergency) between containment and mitigation phases of pandemic control, to suggest that lifting lockdowns should entail more containment than mitigation methods. However, despite being less restrictive on everybody’s rights, the targeted nature of these containment measures raises its own unique human rights challenges; namely, their potential discriminatory application and their impact on people’s privacy and family life. This stage may be vulnerable to ‘suspect community’ tropes being deployed by democratic governments to make decisions regarding who will be most affected by pandemic powers, with the efficacy of such measures being highly questionable. I  shall look at three containment measures in particular: contact tracing apps; immunity certificates; and strict quarantines and stricter border controls. The rush to normalcy From Trump in the US to Bolsonaro in Brazil, from Putin in Russia to Modi in India, authoritarian strongmen did not fare well during the COVID-​19 pandemic.2 Add the UK into this

1

2

‘Leicester lockdown:  New laws come into force’, BBC News (3 July 2020):  accessed 5 July 2020. Helen Lewis, ‘The pandemic has revealed the weakness of strongmen’ The Atlantic (6 May 2020):  ​ accessed 2 July 2020; Simon Tisdall, ‘From Trump to Erdoğan, men who behave badly make the worst leaders in a pandemic’, The Guardian (26 April 2020):  accessed 2 July 2020.

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mix –​the European state with the largest death toll at the time of writing in July 2020 –​and there is a case to be made that right-​wing populist governments were not up to the task of confronting COVID-​19.3 Why this should be the case raises profound questions for theorists of emergency powers. To recall from Chapter Four (Pandemics and Democracy), in a national security crisis such as the aftermath of a major terrorist attack, right-​wing governments are more than willing to cry ‘emergency’ to gain extra powers under the guise of keeping people safe. Yet for some reason, the strongman response to a pandemic does not seem to work. This is all the more puzzling when viewed through the work of arguably the most influential theorist of emergency powers: Carl Schmitt. Schmitt’s theory of emergency powers –​what he terms a ‘state of exception’  –​is based upon the idea that a state of exception arises when the societal stability which a legal order can be founded on is breaking down.4 Schmitt has in mind here the tensions seen in liberal-​democratic states between different groups. Schmitt argues that a legal order such as that created by a constitution can only come into existence once there is a certain degree of stability in a society. This stability can only come about among people when there is a sufficient degree of commonality among people. In turn, this can only occur when a distinction is made between ‘friend’ and ‘enemy’, with friends being ‘internal’ to the state that is subsequently founded, and enemies outside.5 Although what Schmitt terms the ‘friend-​enemy distinction’ refers to these tensions external to –​rather than internal to –​the

3

4 5

Andy Bruce, ‘UK’s COVID-​19 death toll tops 40,000, worst in Europe’, Reuters (12 May 2020):  accessed 2 July 2020. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. G Schwab (University of Chicago Press, 2005), p 1. Carl Schmitt, The Concept of the Political, trans. G Schwab (University of Chicago Press, 2007), pp 38–​39.

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state, he nevertheless argued that these internal tensions between disparate groups within the state could elevate in intensity to such an extent that they mirror the friend-​enemy distinction.6 In such instances, liberalism is unable to defend itself, as its commitment to a neutral political space leaves it unable to pick a side.7 In these emergency situations, a more embryonic political power reveals itself –​the sovereign –​who makes this distinction between friend and enemy, defeats the enemy, and then restores the requisite stability. The sovereign then recedes into the background, ready to reveal itself if necessary in future. This sovereign power to distinguish between friend and enemy is exactly the same as the power that made the initial distinction between friend and enemy that allowed the state to be created and the constitutional order established.8 What this means, therefore, is that this sovereign power existed before a legal order was created and therefore this power cannot be constrained by law. For Schmitt, therefore, a state of exception is not what we have seen described in Chapter Two (Pandemics and Human Rights: Non-​Derogable Rights) as a legal black hole  –​a zone created by law but within which a decision maker is more or less free to act as they see fit; rather, it is a zone that existed before the legal order and, moreover, one that the legal order requires in order for it to be founded; it is, in essence, a zone beyond law.9 From a constitutionalist prospective, this theory is problematic, as it essentially claims that all state power cannot be constrained or exercised through law. Despite his ties to

6

7 8 9

Ernst-​Wolfgang Böckenförde, ‘The concept of the political:  a key to understanding Carl Schmitt’s constitutional theory’ (1997), Canadian Journal of Law and Jurisprudence, 10(5): 8. David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford University Press, 1997), p 41. Schmitt (n 5, Chapter Five). Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018), pp 74–​77.

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Nazi Germany,10 Schmitt has gained in popularity in recent decades, largely due to two reasons:  the triumph of liberal democracy following the collapse of the Soviet Union;11 and the perceived increase in the terrorist threat in Western democracies following 11 September 2001. As seen in Chapter Four (Pandemics and Democracy), governments are democratically incentivized to react strongly to a national security crisis, with terrorism striking at the very heart of what many consider to be the legitimacy of the state –​the provision of security.12 Yet it would appear that Schmitt is of minimal use when trying to understand a response to an emergency that has no enemy –​ such as a pandemic; or, at the very least, he is of minimum use in understanding the pandemic when measures affect everyone. Thus, despite this pandemic resulting in an enormous expanse in the size of the state on a scale not seen since the Second World War, this is not necessarily demonstrative of government support for these changes being made permanent. As responses to the pandemic emergency and lockdown cannot be explained by Schmitt’s friend-​enemy distinction, the utility of his theory in this context is limited. Instead, it is probably best explained through FA Hayek’s conception of liberty and the primacy of the market.13 Hayek fiercely argued for the purity of market forces and for minimum state interference in the economy. To ensure this, Hayek argued for strict constitutional limits to prevent any democratic meddling in the market. Key relics of this in many states today are independent central banks and an increased amount of economic decisions

10

11 12 13

A. Kalyvas and J.  Müller, ‘Symposium  –​Carl Schmitt:  Legacy and Prospects –​An International Conference in New York City: Introduction’ (2000), Cardozo Law Review, 21(5): 1. ‘What was termed the “post-​political age” ’, Chantal Mouffe (ed.), The Challenge of Carl Schmitt (Verso Books, 1999), p 1. See n 60, Chapter Four. See Friedrich A von Hayek, The Constitution of Liberty (first published 1960; Routledge, 2006).

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being taken by technocrats.14 Similar legal constraints are placed on the governments of Eurozone countries, fortified by the Fiscal Compact Treaty of 2012.15 Yet despite these constraints, governments embarked on a massive financial programme to respond to the crisis. That stated, these market forces and a government’s fidelity to Hayekean philosophy may nevertheless exert pressures that result in lockdowns being lifted prematurely. Consequently, unlike with counter-​terrorism, states may be slow to react to the pandemic and too quick to end emergency pandemic measures. For example, in June 2020, the UK government pressed ahead with relaxing the lockdown against a background of hundreds of deaths per day; simultaneously, it sought to ratchet up state power against the threat from terrorism in response to an attack in London in January 2020, notwithstanding the fact that there was no evidence that such additional powers were required.16 According to most recent government statistics, there have been a total of 92 terrorism-​related deaths in Britain (Northern Ireland not included) from April 2003 to March 2019.17 The UK’s daily 14

15 16

17

See Ray Kiely, ‘From authoritarian liberalism to economic technocracy:  Neoliberalism, politics and de-​democratisation’ (2017), Critical Sociology, 43(4–​5): 725. Alan Greene, ‘Questioning executive supremacy in an economic state of emergency’ (2015), Legal Studies, 35(4): 594, 605–​606. Jamie Grierson, ‘Unconvicted terrorism suspects face indefinite controls under UK bill’, The Guardian (20 May 2020):  accessed 2 July 2020. Meanwhile, a parliamentary question asked by former Independent Reviewer of Terrorism Legislation David Anderson revealed that only 3 per cent of those released from prison in England and Wales after conviction for a terrorist offence went on to commit a further terrorist offence. See HL Deb 24 February 2020, Vol 802, Col 26. See Grahame Allen and Esme Kirk-​Wade, ‘Terrorism in Great Britain: The statistics’ House of Commons Library Briefing Paper No CBP7613) (26 March 2020)  accessed 31 August 2020.

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death toll from COVID-​19 was above this number every day from 24 March until 6 June, with sporadic days after this date also crossing this threshold.18 This demonstrates two separate things. First, that terrorism and the response to terrorism is not simply about the body-​ count; states’ significant counter-​terrorism apparatuses are not in place just to keep us safe from a phenomenon that is empirically likely to kill us. If this were the case, then domestic violence would warrant an emergency-​like response.19 Second, it follows that moves to end lockdowns prematurely in the UK were not necessarily motivated by some ideological concern for civil liberties, as these concerns should also militate against new counter-​terrorist powers. Here, the absence of the us-​versus-​them narrative may demonstrate some concern for human rights but only for our rights. This goes against the fundamental assumption of human rights: that they belong to everybody by virtue of their humanity. Consequently, the UK government’s paradoxical approach to terrorism and the pandemic can be explained by the fact that it views human rights not as something that you possess by virtue of your humanity; instead, they are something you earn, a privilege bestowed upon you.20 At best, ‘liberty’ is reduced to the extreme understanding of negative liberty and a Hayekean belief in non-​governmental intervention in the market. To recall from Chapter Two (Pandemics and Human Rights:  Non-​D erogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights), however,

18 19

20

‘United Kingdom Coronavirus Cases’ Worldometer:  accessed 2 July 2020. Thomas Mackintosh and Steve Swann, ‘Domestic violence killings reach five-​year high’, BBC News (13 September 2019):  accessed 2 July 2020. See Benedict Douglas, ‘Too attentive to our duty:  The fundamental conflict underlying human rights protection in the UK’ (2018) Legal Studies, 38(3): 360.

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human rights do not simply require the state to refrain from interfering with a person’s liberties; they also require states to take steps to protect and vindicate these rights. Failure to do so is a breach of these rights. This would require states to provide adequate PPE to healthcare officials. But it also requires states to take necessary steps to reduce the spread of the coronavirus and to mitigate some of the side-​effects of lockdown. Once again, it is only through having an understanding of human rights that emphasizes their emancipatory potential –​encapsulating both negative and positive concepts of liberty –​that their true value is revealed. Lifting lockdowns: from containment to mitigation and back again As states began to lift their respective COVID-​19 lockdown regimes, the process was gradual. To recall from Chapter Two (Pandemics and Human Rights: Non-​Derogable Rights), the WHO splits pandemic response mechanisms into two categories: containment and mitigation.21 Containment occurs at the start of the pandemic, with targeted measures to prevent the virus from getting hold in the community in the first instance. If and when this is no longer possible and a significant level of community transmission of the virus is taking place, the focus shifts towards mitigation. At this point, social distancing measures and lockdown may be introduced. If we can identify two key distinctions between containment and mitigation measures, therefore, they are: the stage of the pandemic in which they are introduced; and the persons they affect. Containment measures tend to be targeted at specific individuals early in the pandemic, whereas mitigation measures occur once containment measures have failed and they tend to apply to everybody. As the pandemic wanes and states

21

See n 40, Chapter One.

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seek to lift lockdown restrictions, measures seen during the containment stage may be enacted again. Transmission in the community has receded, so more targeted measures are appropriate. At this point, new human rights concerns become more salient: specifically, the possibility of discrimination arising as a result of the targeted application of containment measures. Contact tracing apps and the right to privacy

One possible method for more targeted containment measures would be through the use of ‘contact tracing apps’. Contact tracing works by notifying a person when they have come into close contact with somebody who has tested positive for the virus. The person who receives this notification is then expected to get tested and to self-​isolate for the requisite period of time laid down by government guidance.22 In this way, contact tracing apps attempt to disrupt the networks of people through which the virus may be transmitted. In essence, they attempt to place the infected person and the people they may have come in contact with in quarantine. Contact tracing can be carried out in numerous ways. It can be done manually, in which the person who tested positive is interviewed and tells the interviewer who they were in contact with during the time they may have been infected. This information is then used to track down these people and to inform them.23 An alternative method is to do this through

22

23

Joint Committee on Human Rights (JCHR), Human Rights and the Government’s Response to COVID-​19:  Digital Contact Tracing, Third Report of JCHR Session 2019–​21 (6 May 2020):  accessed 2 July 2020, p 5. This was the initial system put in place in the UK in May 2020. See Elizabeth Mahase, ‘COVID-​19: How does the NHS test and trace service work?’ (2020), British Medical Journal, 8248: 369. doi: https://​doi. org/​10.1136/​bmj.m2174

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apps on mobile devices. Using technology such as Bluetooth, a person’s phone will automatically track the phones of other people they have been in contact with, building up a digital map of their personal networks. If somebody in this digital network tests positive, the app will automatically alert the user and inform them of the steps they need to take, for example to self-​isolate and get tested. Some contact tracing models may be a hybrid of the manual and digital responses.24 Some models may not even use a mobile phone, but instead require everybody to carry a specifically developed device.25 Contact tracing apps raise substantial human rights concerns. First, there is the issue of confidential medical information about a person being shared throughout their digital network and with the organization that has constructed this digital network. Second, there is the issue surrounding the personal data used to build this network and, again, whether this can be shared with –​or even sold to –​third parties. Third, there are the consequences that flow from receiving such information and what might happen if a person fails to comply with the regulations. This, in turn, demonstrates that these apps are not simply about detecting or measuring, but about influencing and manipulating. The app is expressly designed to target specific individuals and to encourage them to take a certain course of action. This raises its own unique question about individual autonomy and how technology shapes our lives. Contact tracing apps go beyond surveillance and into the area of intervention. While these are certainly not new questions, the fact that such unprecedented power could be in state hands is striking. There may also be the questions surrounding the

24 25

JCHR (n 21, Chapter Five). John Geddie and Aradhana Aravindan, ‘Singapore plans wearable virus-​ tracing device for all’, Reuters (5 June 2020):  accessed 3 July 2020.

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legal basis of such apps and what, if any, oversight mechanisms are in place. While other rights are affected, I focus here on the right to privacy. The right to privacy is a qualified right protected by Article 8 ECHR and Article 17 ICCPR. As a qualified right, the grounds upon which it can be interfered with by the state in pursuit of a legitimate aim are broadly defined. It should also be noted that the Charter of Fundamental Rights of the European Union also states that:  ‘Everyone has the right to respect for his or her private and family life, home and communications’.26 Flowing from this, the EU has some of the most robust data protection and privacy laws in the world, and the principles and policies that the EU has laid down in the context of contact tracing apps will be influential across all EU states, the UK and beyond. Consequently, looking at EU perspectives on contact tracing apps can also help to illuminate the complex human rights questions surrounding these technologies. The impact on the right to privacy of these apps is substantial. For instance, Article 8 is primarily intended to ensure ‘the development, without outside interference, of the personality of each individual in his relations with other human beings’.27 The protection afforded by Article 8 therefore also extends to relationships and interactions with other people that are fundamental to a person’s identity.. In turn, these apps encroach upon people’s interactions through monitoring –​and potentially influencing –​them. As with most measures undertaken during the COVID-​19 pandemic, case law on contact tracing apps for health purposes was sparse; however, existing jurisprudence in other areas (for example, national security

26 27

Article 7, Charter of Fundamental Rights of the European Union (2000/​ c 264/​01). Niemetz v Germany (App. no.  13710/​88), judgment of 16 December 1992, [29].

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surveillance measures) can shed light on the human rights implications of these apps. In the context of a pandemic, the most obvious legitimate aims that can justify contact tracing apps’ interferences with the right to privacy are for ‘the protection of health’ and ‘for the protection of the rights of freedoms of others’. Pursuit of this legitimate aim must still be proportionate, however, and it is in the assessment of this question that most of the human rights issues surrounding contact tracing apps will arise and that courts will focus their analysis upon.28 That stated, the question of whether such interferences are ‘prescribed by law’ could be an issue, with the UK’s Joint Committee on Human Rights (JCHR) expressing concerns that the implementation and oversight of the UK’s proposed contact tracing app was not on a legislative footing.29 This issue is not unique to the UK, with human rights and data protection groups in other countries stressing not just that the apps should be regulated through legislation, so as to maximize their transparency, but also that there should be further independent oversight mechanisms in place to maximize this transparency.30 These oversight mechanisms are particularly important in the context of legislation that is hastily enacted and, to recall from Chapter Four (Pandemics and Democracy),

28 29 30

See n 40, Chapter Three. JCHR (n 21, Chapter Five), pp 12–​15. See, for example, Exit Through the App Store? A rapid evidence review on the technical considerations and societal implications of using technology to transition from the COVID-​19 crisis, Ada Lovelace Institute (20 April 2020): accessed 2 July 2020; Principles for legislators on the implementation of new technologies, Irish Council for Civil Liberties (June 2020):  accessed 2 July 2020.

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in circumstances where the legislature itself is not functioning properly as a result of the emergency. On the question of proportionality, the compatibility of the contact tracing app with human rights will vary according to the nature of the app itself and the magnitude of the threat posed by the virus in question. This again raises the question of whether accommodating responses to emergencies through the ordinary proportionality test is the best approach from a human rights perspective, or whether states should derogate using Article 15 ECHR. With regard to the different forms that contact tracing apps can take, the JCHR identified two separate approaches:  a centralized model and a decentralized model. In a centralized model, data is shared with a central server, managed by the authority that carries out the data processing and storage; in a decentralized model, the vast majority of data is stored locally on the person’s phone, with as little data as possible shared with the central authority.31 Centralized models have the advantage of enabling authorities to analyze how the virus is spreading through various networks of people; preventative measures could be put in place to mitigate forecasted hotspots and, in turn, could mitigate the cumulative effect of a lockdown. While much of the data will be anonymized, so-​called ‘metadata’ that would be used to model these forecasts (for example, information about when and where a phone was at a certain time –​essentially, data about data) can be just as invasive as direct personal data (for example, directly listening to a person’s phone call).32 Centralized models also have a higher risk of security breaches and the possibility of some data becoming ‘de-​anonymized’, and for profiling of individuals to occur instead through their

31 32

JCHR (n 21, Chapter Five), pp 6–​7. Marko Milanovic, ‘Human rights treaties and foreign surveillance: Privacy in the Digital Age’ (2015), Harvard International Law Journal, 56(1): 81, 141.

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social interactions.33 Centralized systems facilitate the efficacy of the app, which can then be updated in future versions.34 However, the effectiveness of the centralized app could also be a weakness, as the potential for deeper analysis of the data could encourage more data being requested in future, further increasing the negative impact that these apps have on people’s privacy. This could also increase the value of such data to third parties, raising the risk of it being targeted by hackers.35 Nor, according to EU law, can involving the private sector in the storage of the data make any real difference, as it is the retention itself, rather than who is storing it, that alters the relation between the individual and the state.36 Involvement of the private sector and the attractiveness of personal data to businesses has been a burgeoning area of capitalism in recent years. Data is a valuable marketable commodity, and there would be no shortage of third-​party buyers for such information, if it is in the terms and conditions of the app that this use of data is permissible. Here, we run the risk of this data entering what Shoshana Zuboff has termed ‘surveillance capitalism’. Zuboff argues that companies such as Google, Facebook and Amazon have ushered in a paradigmatic revolution in capitalism, just as disruptive as any industrial innovation seen in the 20th century.37 These companies and the technologies they have unleashed do not just surveille us or even just predict our behaviour; they go further, by influencing and changing our

33 34 35 36

37

JCHR (n 21, Chapter Five), p 6. JCHR (n 21, Chapter Five), p 12. Ada Lovelace Institute (n 29, Chapter Five), p 41. See Federico Fabbrini, ‘Human Rights in the Digital Age: The European Court of Justice Ruling in the Data Retention Case and Its Lessons for Privacy and Surveillance in the United States’ (2015), Harvard Human Rights Journal, 28(1): 65. See Shoshana Zuboff, The Age of Surveillance Capitalism (Profile Books, 2019).

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behaviour, getting us to behave in a manner that the algorithm wants us to. One response to these concerns would be to contend that as these apps are voluntary, the user consented to them –​so no human rights issues arise. Such an argument, however, ignores the reality that very often, people do not read the terms and conditions of the apps that they have downloaded. A 2008 study calculated that it would take a reasonable person 76 full working days to read all the privacy policies they are likely to come in contact with in a year.38 At a minimum, for people to be able to properly consent to these apps, the terms and conditions must be written in a manageable, easy-​to-​understand format. But even then, concern still abounds. This weakness of centralized models could also undermine the effectiveness of the contact tracing app. If uptake of the app is voluntary, then weak public confidence in the security of their data could result in poor uptake of the app, rendering it ineffective and undermining the state’s claim that the interference is ‘rationally connected to the objective’. The ECtHR has frequently stressed the importance of the confidentiality of a person’s health data, not just for the respect of the patient but also to preserve their confidence in the medical profession and health services in general.39 An app that puts people’s confidential data at risk, and in which people have minimum confidence, may therefore do little to help in tackling the pandemic.40 Here, we see the limits of thinking in terms of trade-​offs, when it comes to rights. A  suitable framework for a contact tracing app that is compliant with human rights could 38

39 40

Aleecia M McDonald and Lorrie Faith Cranor, ‘The Cost of Reading Privacy Policies’ (2008) Journal of Policy for the Information Society, 4(3); also Zuboff –​see n 36, Chapter Five, p 50. Z v Finland (1997) 25 EHRR 371, [95]; Mockuté v Lithuania (App. no. 66490/​09), judgment of 27 February 2018, [93]-​[94]. Ada Lovelace Institute (n 29, Chapter Five), p 28.

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actually enhance confidence, encourage participation, and increase the overall effectiveness of the app. Consequently, the European Data Protection Board indicated a preference for a decentralized model, as did the JCHR on the basis of the risks to private data associated with centralized models.41 Further, the EU’s detailed regulatory framework known as the GDPR (General Data Protection Regulation) applies to any contact tracing app operating in an EU state. The seven data protection principles at the heart of the GDPR –​data minimization; purpose limitation; storage limitation; integrity and confidentiality; lawfulness, fairness and transparency; accountability and accuracy –​must act as a robust control on how this data is collected and used.42 Nevertheless, even with these protections, these apps pose a substantial challenge to human rights. Ultimately, disclosing such personal information about ourselves and the people we come in close contact with should remain exceptional. Jurisprudence on counter-​terrorist surveillance mechanisms has shaped legal analysis of contact tracing apps; it is highly foreseeable that the opposite occurs and the jurisprudence and state practices pertaining to contact tracing apps seep into counter-​terrorist surveillance systems. For this reason, again, the importance of quarantining exceptional powers to exceptional situations is paramount. This equivalence between a public health emergency and national security measures raises the risk of ‘mission creep’ of surveillance to areas beyond which

41

42

JCHR (n 21) 15–​18;European Parliament, ‘Joint Motion for a Resolution on EU coordinated action to combat the COVID-​19 pandemic and its consequences) 2020/​2616 (RSP):  accessed 2 July 2020. ‘Information Commissioner’s Office Guide to the General Data Protection Regulation (GDPR):  accessed 2 July 2020.

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contact tracing apps, or legal jurisprudence surrounding their legality, were designed. Consequently, many human rights and digital rights organizations have stressed the importance of sunset clauses in the legislation that enables and regulates these apps, thus ensuring that they remain temporary. Concerns remain, however, as to the effectiveness of sunset clauses alone.43 Moreover, sunset clauses do not place a time limit on any jurisprudence pertaining to the compatibility of such apps with human rights obligations. And while the proportionality of these apps is instead inherently linked to the severity of the public health emergency, the question must again be raised as to whether the best way of ensuring that such apps stay temporary is through the built-​in proportionality test in Article 8 ECHR or derogation using Article 15. Given the high risk of mission creep, an Article 15 derogation would be the best approach to protect human rights in the long run. Immunity certificates

Contact tracing apps are not the only technological innovation to emerge from the COVID-​19 pandemic that raises substantial human rights concerns –​‘immunity certificates’ also pose particular challenges. Immunity certificates work by recording a person’s immunity status digitally on their mobile phone or other device. This information is shared with a third party, who can then take action on the basis of this information; for example, permitting the person to enter their place of business. In this way, immunity certificates seek to limit the need for lockdown, by allowing persons who cannot be vectors for the virus to move about freely. But through distinguishing immune

43

See n 60, Chapter One; see also John Ip, ‘Sunset Clauses and Counterterrorism Legislation’ (2013), Public Law, 74.

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persons from the rest of the population, there is a serious risk of discriminatory treatment of people. For immunity certificates to work, the first issue to be addressed is how to identify whether a person is immune. At the time of writing, questions remain as to: whether COVID-​19 antibody tests are sufficiently accurate to be relied upon; how long such immunity lasts, or whether it is permanent; and whether a vaccine against COVID-​19 can be developed.44 Answers to these questions are vital for an immunity certificate system. Distinguishing the vaccinated from the unvaccinated bears striking resemblance to the 2011 film Contagion, in which those who had received the vaccine wore wristbands with barcodes on them. Such imagery deliberately draws parallels with horrors of Nazi Germany, where Jews were forced to wear the yellow Star of David, marking them out from the rest of the population. Simply because the recording of immunity passports on a phone is much more banal than a worn symbol does not detract from the fact that they still raise many human rights concerns. Like the contact tracing app, a voluntary immunity certificate system fails to address all human rights concerns. Many technologies in the past decade, while voluntary, have become integral to modern life; opting out of using them is simply not an option. This has been particularly emphasized by the COVID-​19 pandemic, where billions of people relied on communication software such as Facebook, Skype, WhatsApp and Zoom to stay in touch with family and friends, and also to work from home, as requested by governments.45 Lockdown

44

45

See Daniel M Altmann, Daniel C Douek and Rosemary J Boyton, ‘What policy makers need to know about COVID-​19 protective immunity’ (2020), The Lancet, 395(16): 1527. Ella Koeze and Nathaniel Popper, ‘The virus changed the way we internet’, New York Times (7 April 2020):  accessed 3 July 2020.

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would not have been feasible without these technologies. So, too, if lifting lockdown is infeasible without these technologies, then the idea of consent being freely given must be rejected. Finally, a particular kind of immunity certificate is the immunity passport. These could be required by airlines before flying or by countries on arrival at border crossings.46 Immunity passports raise further concerns about states other than the one a person is resident in accessing their personal data. They thus raise questions regarding international cooperation on these issues. While one may trust one’s own government to use and protect one’s personal data, the same may not be true of all governments. Without effective international regulation and cooperation in these areas, a person’s personal data could become highly vulnerable. The discriminatory potential of immunity certificates

The example of checking an immunity passport before entering a restaurant may seem innocuous at first; however, like physical symbols demarcating one category of persons from another, segregated regimes for the enjoyment of private property also have a sinister history. The pivotal victory of the civil rights movement in the US in the 1960s was the Civil Rights Act 1964 which, among other measures, made the most egregious forms of racial discrimination in what are termed ‘public accommodations’ unlawful.47 No longer could African Americans be forced to sit at the back of the bus or prohibited from entering ‘whites only’ establishments. Today,

46

47

‘ “Immunity passports” in the context of COVID-​19’, WHO: Scientific Brief (24 April 2020):  accessed 3 July 2020. Title II, Civil Rights Act 1964; Alfred Alvins, ‘What is a place of “public” accommodation?’ (1968) Marquette Law Review, 52(1):1.

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issues abound as to whether businesses can refuse customer requests on religious grounds.48 Discriminatory practices cut to the core of human rights, challenging the very idea that we have rights by virtue of the fact that we are human. Again, we see the limits of an overly libertarian conception of rights as zones of non-​interference between the individual and the state, with little or no legitimacy to affect the relations between private individuals. For human rights to retain their emancipatory potential, the idea of discriminatory practice such as ‘whites only’ public spaces or ‘whites only’ job advertisements must be resisted. To this end, many states such as the UK have in place detailed equality legislation, designed to prevent discrimination in the workplace and elsewhere on the grounds of sex, race, disability, age, or sexual orientation.49 What is not a protected characteristic, however, is susceptibility to a disease or a lack of antibodies.50 It is, in principle, feasible to imagine that a potential employer would ask a person for their immunity certificate during a job interview. The employer may then choose not to hire the person on the basis that they may get sick or may have to self-​isolate in the future, thus making themselves unavailable for work. Further, while this may seem rational, the fact that a person does not have immunity may become a way of discrimination by proxy for other protected characteristics. Some people, for example, may not be able to get a vaccine for health reasons, such as a disability that is protected under equality legislation.

48

49 50

In the US, see Masterpiece Cakeshop v Colorado Civil Rights Commission (2018) 584 US 16–​111. In the UK, see Lee v Ashers Baking Company Ltd and Others [2018] UKSC 49. See, for example, the UK’s Equality Act 2010. Imogen Parker and Elliot Jones, Something to declare? Surfacing issues with immunity certificates, Ada Lovelace Institute (2 June 2020):  accessed 3 July 2020.

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But a potential employer could then use the immunity grounds to refuse to employ them. Likewise, age is a protected characteristic under equality legislation, but older people were more vulnerable to COVID-​ 19. They are also more likely to have underlying health conditions that may mean that they cannot have a vaccine. While the Equality Act 2010 does protect against indirect discrimination, the law is currently unclear on whether this would qualify as such.51 Worryingly, there is substantial evidence that in the UK, persons of black, Asian and minority ethnic (BAME) groups were more likely to suffer from COVID-​19. At the time of writing, it is unclear why this is the case. There is some evidence that while COVID-​19 does not affect all population groups equally, this may be the result of socioeconomic factors rather than some physiological susceptibility to the disease.52 That stated, it is not unforeseeable that such a disease could arise in a future pandemic, in which case indirect discrimination could occur. Furthermore, if the lifting of lockdown is dependent upon the availability of technology and persons being both able to afford it and competent enough to operate it, then a potential gap may open up between those who can and cannot afford the technology and also with those who are incapable of working it –​for example, older people. Quarantine regimes and air bridges

While immunity passports may be trialled to control arrivals from different states, an alternative approach would be 51 52

See n 49, Chapter Five. Beyond the data: Understanding the impact of COVID-​19 on BAME groups, Public Health England (June 2020):  accessed 3 July 2020, pp 3–​4.

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for states to have in place different disease containment regimes for arrivals from different states. This may occur at the early ‘containment’ stage of a pandemic, or as lockdown measures are lifted and states want to prevent the re-​ emergence of community transmission. This may entail strict quarantine measures. At the time of writing, the state that many considered had the most successful response to controlling COVID-​19 was New Zealand. New Zealand strictly limited who was allowed to enter the country to New Zealand residents and citizens (and their children and partners) only. People from other states were not allowed to enter, unless they had specific grounds for exemption. Further, any person entering from another country had to remain in managed isolation or quarantine for at least 14  days.53 People in ‘managed isolation facilities’ could not leave this facility except for walks in the vicinity and as long as they did not have contact with other persons in the community. Persons in quarantine who had symptoms of COVID-​19, or who tested positive after arrival, were prohibited from leaving their room in the quarantine facility.54 These measures amount to substantial restrictions on an individual’s human rights and, in the case of persons in quarantine, this would amount to clear deprivation of liberty. Consequently, the concerns seen in Chapter Three (Pandemics and Human Rights:  Derogable Rights) regarding the right to liberty during a pandemic in the absence of a de jure state of emergency arise here. This also shows that it would be a

53

54

‘Covid-​19  –​ Border Controls’, New Zealand Ministry of Health (updated 1 July 2020):  accessed 3 July 2020. See n 52, Chapter Five.

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mistake to assume that as the pandemic wanes, so too do any human rights concerns. At this containment stage, there is also a risk of a suspect community emerging, as specific individuals and the persons they come in contact with are tracked and traced. Here, a person’s nationality could be relevant, especially if they come from a country where there is a strong prevalence of the disease. Arrivals from certain countries could be banned altogether –​ a risk that the WHO was acutely concerned about, when deciding whether to declare COVID-​19 a pandemic or not, given the WHO’s belief that such measures would prove politically attractive but practically ineffective.55 This is particularly important in light of the history of diseases. From Jews being blamed for the Black Death to HIV being referred to as the ‘gay plague’, disease outbreaks have a long history of being blamed on vulnerable minorities.56 There is evidence of such xenophobia in effect in some states’ responses to COVID-​19, with US President Donald Trump repeatedly referring to the disease as the ‘China Virus’.57 A suspect community could also emerge as people recover and gain immunity from the disease or a vaccine is developed. The population may be distinguished between those who could be potential carriers of the virus and those who are not, with certain demographic imbalances in two distinct categories emerging. As noted, in the context of the COVID-​19

55 56

57

Editorial, ‘COVID-​19, a pandemic or not?’ (2020), The Lancet: Infectious Diseases, 20(4): 383. SK Cohn, ‘The Black Death and the Burning of Jews’ (2007), Past and Present, 196(1):  3; R Lawson, ‘The Reagan Administration’s Unearthed Response to the Aids Crisis is Chilling’, Vanity Fair (1 December 2015):  accessed 3 July 2020. M Vazquez and B Klein, ‘Trump again defends use of the term “China Virus” ’, CNN (19 March 2020):  accessed 3 July 2020.

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pandemic, there is significant evidence in the UK that BAME people were more likely to contract and die from the disease than white British people.58 Thus, while it may appear that we are all sacrificing our liberty for our security, this may not be the same for all pandemics all of the time. It should be noted that New Zealand’s approach to banning all arrivals does solve this discriminatory potential to an extent; however, it is nevertheless the case that other states will take different approaches. At the outset of the pandemic, US President Donald Trump briefly sought to ban all arrivals from the EU, while still allowing arrivals from the UK, even though the UK had a higher rate of community transmission of COVID-​19 than many EU states.59 Likewise, many countries sought to establish air bridges –​a reciprocal agreement between two states that could allow visitors such as tourists to travel without quarantine or self-​isolation restrictions.60 On this point, complex geo-​political wrangling may affect whether such an agreement is struck or not, potentially leaving individuals from a state with a higher rate of community transmission free to travel, but another individual from a state without an air bridge agreement –​but a lower rate of community transmission –​ having to self-​isolate or even to quarantine for two weeks. It is difficult to see how such a measure could be deemed to be ‘rationally connected to the objective’ of controlling the spread of the virus and, therefore, satisfying the proportionality test. On this point, it is worth highlighting that discriminatory

58 59

60

Public Health England (n 51, Chapter Five). Maanvi Singh, Mario Koran and Vivian Ho, ‘Trump suspends travel from most of Europe amid coronavirus outbreak’, The Guardian (12 March 2020):  accessed 3 July 2020. Rachel Dixon, ‘What are air bridges, where will they cover and how will they affect my holiday? Q&A’, The Guardian (26 June 2020):  accessed 3 July 2020.

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measures between British and non-​British citizens in the context of counter-​terrorist measures were found to be incompatible with the Convention, even when a state of emergency was declared under Article 15.61 Conclusions As pandemics wane and states look to restore normalcy, this should not be seen as the moment where all risks to constitutionalist values also wane. As economic pressures hasten the return to normalcy, different challenges to human rights arise. Contact tracing apps, immunity certificates and stricter quarantine regimes all pose a risk of the discriminatory treatment of persons on grounds unrelated to controlling the pandemic. This does not, however, mean that lockdown powers ostensibly applicable to all cannot have discriminatory effects too. To recall from Chapter Three (Pandemics and Human Rights:  Derogable Rights), states such as the UK enforced lockdown, by making it an offence to leave one’s house without a reasonable excuse. This essentially conferred broad discretionary authority on the police to enforce these rules. As it was impossible for the police to monitor everybody at any one time, it was inevitable that selective application of these powers would arise and the police would have to use their discretion in deciding who to stop. Statistics showed that police in England and Wales were almost up to seven times more likely to issue fines to BAME people than white people.62 It is only through transparent keeping of statistics and scrutiny of the application of these broad discretionary powers that their 61 62

See A v UK (App. no. 3455/​05) judgment of 19 February 2009. Vikram Dodd and Mirren Gidda, ‘Police in England and Wales far more likely to fine BAME people in lockdown’, The Guardian (17 June 2020):  accessed 27 June 2020.

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true effects can be known. Here again, we see the importance of fostering a culture of justification and of ensuring that emergency powers, regardless of the threat that triggers them, are exercised in accordance with human rights, democracy and the rule of law. On this point, monitoring the effect of pandemic emergency powers could be enhanced through borrowing mechanisms of scrutiny from counter-​terrorist powers. In the UK, for example, an Independent Reviewer of Terrorism Legislation monitors the impact of these laws, placing regular reviews before Parliament, which can, in turn, rely on these in its constitutional duty in holding the government to account. A similar position could be established to monitor the operation of pandemic powers. This, in turn, could feed into the broader question of whether there is a risk of these emergency powers being lifted too soon. For scholars of emergency powers, however, the risk tends to be the opposite –​emergency powers have an unfortunate habit of becoming entrenched and permanent. If pandemic emergency powers have a risk of being lifted too soon, does this mean that there is no possibility that they will become permanent? As I argue in the concluding chapter of this book, there is potentially a risk of both occurring. It is for this reason, again, that it becomes paramount for the justifications for either lifting the measures or for perpetuating them –​and applying them to new situations –​to be clearly made out, and a culture of justification established.

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SIX

Conclusions: Breathing Space Introduction Ideally, all states of emergency are temporary. Ideally, all states of emergency are designed to restore the status quo ante. And ideally, all emergency powers are unpalatable; as it is precisely their unpalatable nature that ensures they remain temporary. It is when these changes become acceptable –​even desirable by the majority of the public  –​that they have the greatest potential to become permanent. To recall from Chapter Five (The End of the Pandemic Emergency), in the context of the COVID-​19 pandemic, it may seem difficult to see how some of these powers could become permanent, owing to the deeply impactful ways in which they have affected everybody’s lives. However, this risk of permanent emergency powers is certainly not absent; rather, it may occur in subtly different ways. In this chapter, I commence by looking at the phenomena that trigger emergency powers, and argue that the risk of pandemic powers becoming permanent stems not from the possibility of the virus itself being a permanent threat, but from the application of these powers beyond pandemics –​a risk I highlighted in Chapter Three (Pandemics and Human Rights:  Derogable Rights) and Chapter Five. This risk is

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compounded when emergency powers are deployed through more ‘banal’ means, such as legislation. Following this, I  discuss how some so-​called emergency threats do not result in defensive measures designed to restore the status quo ante; rather, they are designed to permanently change the status quo, as this was what caused the emergency in the first instance. I then apply this framework to the post-​ pandemic state, with a view to assessing what permanent, irrevocable changes could  –​and should  –​be on the cards. This discussion, in turn, should shape our understanding of what is perceived to be the greatest emergency threat of our time: climate change. Finally, this chapter concludes by arguing that many of the problems seen as a result of the COVID-​19 pandemic arose as the result of poor emergency preparedness. This poor preparedness failed to take into account many of the unique issues facing disparate demographic groups: for example, women, children, older people and certain ethnicities. While it is difficult to say that any government was sufficiently prepared for the COVID-​19 pandemic, there will be no excuse when the next pandemic erupts. Pandemics and permanent states of emergency To recall from Chapter One (The Pandemic State of Emergency), the basic premise of a state of emergency assumes that we can identify a threat that is somehow exceptional; a threat that cannot be tackled using the ordinary powers at the disposal of the state.1 Emergency powers make a clear separation between the norm and the exception; between normalcy and emergency. This normalcy–​emergency dichotomy is the key to emergencies, but it is also increasingly being said that we are now living

1

See from n 6 to n 15, Chapter One.

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in a permanent state of emergency. The exceptional nature of emergency powers  –​and the detrimental consequences they have on fundamental constitutional principles like democracy, human rights and the rule of law –​mean that they are only justified or excused on the basis that they are temporary. Emergency powers should negate the necessity for their own existence, by defeating the threat at hand. Once the threat is defeated, the powers are no longer needed, they are relinquished, and normalcy is restored. A permanent emergency, therefore, is an oxymoron. Moreover, permanent states of emergency are unjustifiable as, rather than being temporary sacrifices of the values that constitutions espouse, they amount to a permanent surrendering of these values. Instead of protecting and restoring the status quo ante, they permanently change this order, ushering in ‘a new normal’. Yet if, as I argued earlier, there is a risk of emergency pandemic responses such as lockdown being lifted too soon, this raises the question of whether, at all, there is a risk of any pandemic emergency powers becoming permanent. To answer this, we must look at why emergency powers become permanent in the first place. The permanent emergency threat

Since the 20th century, emergency powers have been applied to an increasingly broad array of crises. Terrorism is the quintessential example of this. To go into a detailed examination of the concept of terrorism is beyond the scope of this book. It suffices to say that terrorism is essentially political violence that a state labels as illegitimate.2 In order to respond to terrorism,

2

B Hoffmann, Inside Terrorism: Revised and Expanded Edition (Columbia University Press, 2006), p 23; A Greene, ‘Defining terrorism: one size fits all?’ (2017), International and Comparative Law Quarterly, 66(2): 411, 414–​415.

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states tend either to enact new criminal justice powers or to take a military approach; often, states do both. Terrorism tends to be conceptualized as something akin to an armed conflict and more like everyday criminality. In terms of the threat that terrorism is represented as posing to the state, it is often ratcheted up to the level of an armed conflict with language like ‘the war on terror’ being used.3 The problem with this, however, is that wars end. Unlike a classic army, however, terrorists tend not to wear a uniform. They do not wave flags. Nor are their actions contained on the battlefield. They do not target only military personnel, who themselves are clearly distinguished from the civilian population. Terrorism is thus conceptualized as a threat that is omnipresent and perpetual. We can never know if the threat has truly been defeated, as the terrorists look like us; they are us.4 For this reason, the US abandoned the language of the ‘war on terror’, replacing it with the much more banal, bureaucratic-​sounding ‘overseas contingency operations’.5 Furthermore, this belief that the threat of terrorism can never be wholly defeated means that counter-​terrorism also makes use of the criminal justice system too. New crimes are created, and new powers are given to police forces and state actors. However, terrorism is different to other crimes as, in general, the criminal law is retrospective –​it punishes individuals for acts that have already happened.6 Such a criminal law would 3

4 5

6

See Robert Chesney and Jack Goldsmith, ‘Terrorism and the convergence of criminal and military detention models’ (2008) Stanford Law Review, 60(4): 1079. Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018), pp 35–​48. Lynn M Williams and Susan B Epstein, ‘Overseas Contingency operations Funding’, Congressional Research Service (7 February 2017):  accessed 3 July 2020. Individuals can be punished for ‘attempts’ and ‘conspiracies’, but these ‘inchoate’ offences still require a substantial degree of planning and close proximity to the plan coming to fruition before people can be prosecuted.

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be of minimal use in the context of counter-​terrorism, as it could only punish after the attack occurred. Counter-​terrorist laws and powers thus have a more ‘preventative’ dimension to them, allowing states to ‘defend further up the field’.7 This often entails passing laws that criminalize the preparation of acts of terrorism or the possession of items that could be used to plan a terrorist attack. These actions and items themselves may seem innocuous, but when placed in context, the claim is made that they constitute an offence.8 In this way, terrorism is seen as something that is managed rather than defeated, and so terrorism powers have a habit of becoming normalized. This can be seen from the UK’s response to terrorism over the decades. During the conflict in Northern Ireland, many of the UK’s novel counter-​terrorist powers were contained in temporary legislation, and some of these provisions were subject to a derogation from the ECHR following the declaration of a state of emergency in accordance with Article 15. The signing of the Good Friday Agreement and the establishment of power-​sharing in Northern Ireland did not see the return to the status quo that had existed before the Troubles, however; rather, many of the powers were put on a permanent statutory footing in the form of the Terrorism Act 2000. These powers have been added to repeatedly over the subsequent two decades as the perceived threat from terrorism has shifted from Irish republicanism to Islamic extremism. This is not a trend that is unique to the UK either. Many states now have permanent counter-​terrorism legislation. Most of the measures contained in the United States Patriot Act 2001, enacted in the aftermath of 9/​11, have been made permanent, with others being perpetually renewed.9 7 8 9

David Anderson, ‘Shielding the Compass’ (2013), European Human Rights Law Review, 3: 233, 243. See Jacqueline Hodgson and Victor Tadros, ‘How to make a Terrorist Out of Nothing’ (2009), Modern Law Review, 72(6): 984. See Greene (n 4, Chapter Six), pp 166–​167.

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The ‘banality’ of legislation unencumbered by a de jure declared state of emergency facilitates this ‘normalization’ of emergency powers. To recall from Chapter One (The Pandemic State of Emergency), the legislative accommodation model to emergencies is intrinsically attractive, because it facilitates the introduction of new powers but under the premise that the constitution is still functioning; further, the fact that the legislature has approved of the new powers gives them the stamp of democratic legitimacy.10 Herein lies the risk of permanent emergency powers arising from the pandemic. Although it is unlikely that states would wish to consider lockdown for any longer than is necessary, and may even lift such lockdowns too soon, as seen in Chapter Two (Pandemics and Human Rights: Non-​ Derogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights), it is the precedent that their introduction into the ordinary legal order has created that may facilitate the future introduction of similar powers but in non-​pandemic situations. These emergencies may be less objective than a pandemic and, further, the powers may be exercised against ‘suspect communities’. In addition, the necessity of these powers is often deeply contested; it is not an ‘objective’ question and, very often, democratic debate on this question is distorted. For instance, opponents of the measures may be denied access to the evidence required to stress-​test the government’s claim that the powers are necessary, or by the fact that democratic forces tend to skew in favour of retaining these powers as they tend to be applied almost exclusively against the suspect community.11 To simply assert that these powers are ‘necessary’ cannot –​and

10

11

John Ferejohn and Pasquale Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers (2004), International Journal of Constitutional Law, 2: 210, 216–​218. See from n 13 to n16 in Chapter One.

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should not –​stifle debate. As we have seen, this risk is particularly heightened as a result of the economic conditions and possible social instability that may follow in the aftermath of lockdown. Pandemics and economic crises Terrorism is not the only phenomenon to result in permanent emergency powers or irrevocable changes to our way of life. Economic crises and even organized crime have triggered emergency responses from states, with vast discretionary authority being placed in the hands of the executive as a result.12 To recall from Chapter One (The Pandemic State of Emergency), Article 48 of the Weimar Constitution was repeatedly used to tackle financial crises in Germany following the First World War. Not all uses of emergency powers to deal with financial crises are as destructive as Weimar Germany’s experience, but they do, nevertheless, raise serious questions for constitutionalist principles. US President Franklin Delano Roosevelt, for example, made use of emergency powers in legislation to implement his New Deal plan to tackle the Great Depression. Roosevelt signalled his commitment to do so right at the outset of his Presidency when, in his inaugural speech, he stated that he would ask Congress for ‘… broad executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe’.13 His subsequent stand-​off with the US Supreme Court over

12

13

For an example of emergency powers deployed in response to organized crime, see A  Greene, ‘Shielding the State of Emergency:  Organised Crime in Ireland and the State’s Response’ (2011), Northern Ireland Legal Quarterly, 62(3): 249. William E Scheuerman, ‘The Economic State of Emergency’ (1999–​ 2000), Cardozo Law Review, 21: 1869, 1871.

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the constitutionality of the legislation underpinning the New Deal resulted in permanent changes to how the US constitution was interpreted.14 More recently, the 2008 financial crisis also moved a large number of countries to enact emergency powers. Many of these changes led to the introduction of substantial austerity regimes, which had devastating effects on many people’s lives, prompting criticism from the UN Human Rights Council.15 Yet while counter-​terrorism powers have a propensity to become permanent because terrorism –​rightly or wrongly –​ is seen as a threat that cannot be wholly defeated, economic emergency powers become permanent or leave an indelible mark for a different reason. While, in theory, emergency powers should restore the status quo ante that existed prior to the crisis, economic emergencies are often seen as symptomatic of this status quo. They are, therefore, designed not to be temporary defensive measures, but permanent and transformative.16 And while the powers themselves may eventually be relinquished, they leave behind permanent change. This idea is encapsulated by Roosevelt’s New Deal. The driving force behind the ‘New Deal’ was that it would be a permanent reordering of the US’s economy and society in a more progressive direction; a break from the laissez-​faire mentality that dominated the 1920s and caused the Great Depression. There was no going back. This permanent transformative effect can also be seen in state

14 15

16

Bruce Ackerman, We the People, Vol 1: Foundations (Harvard University Press, 1993), p 289. ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’, A/​HRC/​37/​54 (20 December 2017):  accessed 3 July 2020. Alan Greene, ‘Questioning executive supremacy in an economic state of emergency’ (2015), Legal Studies, 35(4): 594.

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responses to the 2008 financial crisis too, with permanent changes being made to the architecture of the Eurozone.17 The economic crisis caused by COVID-​19 is possibly where the greatest risk of permanent irrevocable change being introduced arises, as states introduce austerity measures in the same manner as they did in 2008. It is pivotal to bear in mind, however, that this is not inevitable; austerity measures of the kind seen in 2008 were not inevitable. Nor did they reach the threshold of objectivity required to be considered necessary. As people inherently and irreconcilably disagree over economic matters, it is almost impossible to say, at least from a purely economic perspective, that a response is necessary.18 On this point, it is absolutely true that the perceived necessity of a decision is dependent upon the objective that the decision maker wants to achieve. This therefore reveals more about the individual’s ideological disposition than it does about the phenomenon triggering the response. Consequently, it may not –​and should not –​be the case that responses to a pandemic and its aftermath result in austerity and further hardship. Further, it may not necessarily be the case that changes in response to the COVD-​19 pandemic are all negative. The moment is pregnant with possibility. In response to the COVID-​19 pandemic, states all across the world took steps that would have been impossible just days beforehand. The UK, for example, introduced what was known as a ‘furlough scheme’, paying the wages of staff of businesses that had to close during the pandemic. Similar schemes were introduced across the world.19 Other states

17

18 19

See Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (Fiscal Compact Treaty), entered into force 1 January 2013. See Greene (n 16, Chapter Six), pp 613–​615. See ‘Policy Responses to COVID-​19’, International Monetary Fund (updated 2 July 2020):  accessed 3 July 2020.

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introduced payments to people once lockdown was lifted to try to stimulate economic growth again, with many economists arguing against the implementation of austerity.20 Meanwhile, in Ireland, rents were frozen, despite the fact that the constitutionality of such a move had been deeply challenged during the general election that took place the previous month.21 During that campaign, many opposition parties had called for rent freezes to tackle what they termed a ‘housing emergency’. However, according to the centre-​r ight Fianna Fáil Party, rent freezes would infringe upon the constitutional protection of private property.22 Yet such objections evaporated in the face of the COVID-​19 health emergency, despite the fact that no constitutional emergency had been declared. As far as the Irish Constitution was concerned, it was business as usual. In legal terms, therefore, the clash over the constitutionality of rent freezes amounted to disagreement over the proportionality of that response to a housing crisis. Here again we see how an overly bourgeois conception of human rights can be deployed to thwart progressive change; however, such objections evaporate in the face of a threat, the objectivity of which cannot be denied. This possibility of rapid, transformative responses seen in the fight against COVID-​19 demonstrates that states can, when motivated, rally to tackle the most serious of crises 20

21

22

‘Top economists warn the UK not to repeat austerity after the COVID-​ 19 crisis’, New Statesman (4 May 2020):  accessed 5 July 2020. Fiach Kelly, ‘Ban on evictions and rent freeze in new emergency legislation’, Irish Times (25 March 2020):  accessed 3 July 2020. Rachel Walsh, ‘Housing crisis:  there is no constitutional block to rent freezes in Ireland’, Irish Times (3 February 2020):  accessed 3 July 2020.

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that humanity faces. Much of this stands in stark contrast to the manner in which states so far have responded to climate change  –​arguably a much more existential threat than any pandemic the world has faced. Climate change: a bigger existential threat? On 20 August 2018, a 15-​year-​old girl in Sweden refused to go to school. There is nothing particularly unique about this. Children skip school all the time; some for better reasons than others. What made Greta Thunberg different was that she was going on strike; she was striking until politicians acted to take steps to tackle climate change. She was soon joined by her schoolmates, and her protest spread to other schools and countries, triggering a vast movement of young people, motivated by a passion to save the planet.23 Across the world, countries, regional assemblies and local councils declared climate emergencies. In November 2019, the EU Parliament declared a global ‘climate and environmental emergency’.24 Yet often, such declarations were merely symbolic; the phenomenon of climate change was recognized as the emergency, but no meaningful emergency response has yet been forthcoming. This does not mean that their efforts have been futile; rather,

23

24

Jonathan Watts, ‘The Greta Thunberg effect: at last, MPs focus on climate change’, The Guardian (23 April 2019):  accessed 3 July 2020; Jonathan Watts, ‘Interview: Greta Thunberg, schoolgirl climate change warrior: “Some people can let things go. I can’t’ ”, The Guardian (11 March 2019):  accessed 3 July 2019. Jennifer Rankin, ‘ “Our house is on fire”: EU Parliament declares climate emergency’, The Guardian (28 November 2019):  accessed 3 July 2020.

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the post-​COVID-​19 world may provide the ideal opportunity to radically change the world we live in. This raises the question of whether it is correct to call this a climate emergency. Here, I do not wish to dispute the evidence that climate change is a thing that we need to confront. My point instead is about the language used and what theories of emergency powers can tell us about this crisis. Recall that emergencies are, in theory, temporary reactive mechanisms designed to restore the status quo ante. This defensive aspect of ‘emergencies’ seems particularly out of place, when discussing climate change, however; the status quo is the threat. Environmental movements are seeking to permanently and radically change our way of life. This is not an emergency; this is a revolution. Despite this, it is not difficult to see why environmental movements have latched on to the concept of emergency. ‘Emergency’ captures the idea of urgency and the necessity for action to confront an existential threat that, despite its magnitude, is deeply difficult to comprehend. While pandemics may be less visceral than, say, a terrorist attack broadcast on live TV, the image of army trucks queuing to remove coffins from overflowing Italian morgues can prove just as emotive.25 Coupled with images of patients in intensive care and healthcare workers in PPE, daily death toll updates, and graphs charting the exponential growth of the disease, the gravity of the threat posed by a pandemic cannot be lost on anybody. In contrast, it is difficult to conceptualize viscerally the threat posed by climate change. Scenes taken from droughts, floods and hurricanes can remain just that –​extraordinary weather events, yes, but not out of kilter with what can be expected. 25

Angela Giuffrida and Lorenzo Tondo, ‘ “A generation has died”: Italian province struggles to bury its coronavirus dead’, The Guardian (19 March 2020):  accessed 3 July 2020.

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Conclusions: Breathing Space

Against this, the idea of a climate emergency helps to ‘focus minds’, motivate individuals to take action, and force climate change to the top of the political agenda. In contrast, a ‘climate change revolution’ and the idea of ‘revolution’ generally, could be seen as somehow ‘too extreme’. The spectre of the French Revolution still haunts politics and both its supporters and detractors. The idea of revolution may, in particular, be abhorred by those on the right of the political spectrum, viewing ‘revolutions’ as antithetical to their claimed philosophy of traditionalism and preferring slow, incremental change using the tried and tested, rather than any radical transformation.26 While climate change is now seen as predominately a left-​ wing cause, there are those on the right who lament this, arguing that concepts such as conservation, preservation, and living within one’s means are inherently conservative. Here, Margaret Thatcher is often invoked as the first leader of a major economy to commit to the Rio Earth Summit upon being convinced of the need to tackle climate change.27 Yet the idea of progress always being the result of slow, incremental change is a misnomer. Thomas Kuhn shows that science, as a field, is not the result of a gradual accumulation of knowledge; it is, instead, littered with competing paradigms, the dominant of which, in a given field, is eventually ousted in what Kuhn terms a ‘scientific revolution’. This does not occur simply because evidence proves that the new paradigm is better; rather, politics and stubbornness can hamper the adoption of the new paradigm until the point at which the crisis in the field can no longer be ignored and the old 26 27

See Graham Gee and Grégoire Webber, ‘A Conservative Disposition and Constitutional Change’ (2019), Oxford Journal of Legal Studies, 39(3): 526. John Gummer, ‘As Thatcher understood, true Tories cannot be climate change deniers’, The Guardian (19 January 2017):  accessed 9 June 2020.

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paradigm is eventually abandoned. Kuhn thus shows that the conservative notion of favouring the tried and tested, and of slow, gradual incremental change, cannot explain the history of science. Invariably, a revolution is necessary for progress.28 This debate over language can also be seen in the US where, in February 2019, US Representative Alexandria Ocasio-​ Cortez and Senator Ed Markey moved two resolutions before the House and Senate, calling for a ‘Green New Deal’.29 The terminology deliberately drew comparisons between the climate crisis and the Great Depression. Ultimately, the two resolutions failed to pass either house, with one commentator criticizing the language of the Green New Deal as being designed to ‘galvanize the mentally and morally exhausted Democratic Party oligarchy into action; but it also contains elements that would make the achievement of a new national dispensation based on the Green New Deal quite impossible’.30 Thus, while the plea to huge state investment on a scale akin to that needed to tackle the Great Depression may appeal to those on the left, it is more likely to revile those on the right. The problem with this, however, is that it fails to take account of the fact that the language of a Green New Deal or ‘Global Green New Deal’ (GGND) first arose out of a UN Environment Programme convened in December 2008.31 The GGND, like Roosevelt’s New Deal, was therefore as much about responding to an economic crisis –​that which

28 29

30 31

See Thomas Kuhn, The Structure of Scientific Revolutions (4th edn) (University of Chicago Press, 2012). Lisa Friedman, ‘What is the Green New Deal? A  climate proposal explained’, New York Times (21 February 2020):  accessed 3 July 2020. Anatol Lieven, Climate Change and the Nation State:  The Realist Case (Penguin Books, 2020), Ch 5. See Edward B Barbier, A Global Green New Deal (Cambridge University Press, 2012).

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Conclusions: Breathing Space

crystallized in September 2008 –​as it was to an environmental crisis. The participants’ brief was to find: the right mix of policy actions to help stimulate recovery and create jobs while also improving the sustainability of the world economy, enhancing the livelihoods of the world’s poor and channelling investments into dynamic economic sectors and at the same time lessening carbon dependency and environmental deprivation.32 Conceptualizing climate change as requiring measures similar to that of a financial crisis is the best way to think of the problem. Like economic crises, climate change is symptomatic of something rotten at the heart of the status quo. While urgent measures are represented as necessary, it is rarely the case that they are represented as being designed to restore the status quo ante. Economic crises are moments of transformation and the GGND recognized this, with the movement starting in the months following the September 2008 financial crash and just prior to US President Barack Obama’s inauguration.33 While the success of the GGND movement to date is questionable, this is not to say that their diagnosis was wrong. In the decade since the movement first started, climate change has never been more salient nor higher on the political agenda. Simultaneously, the COVID-​19 pandemic has ushered in a worldwide recession on an enormous scale. As states take the steps to recover from the pandemic, climate change should feature prominently. During lockdowns, the world saw a global decline in CO2 emissions.34 Restoring normalcy, therefore, 32 33 34

See Barbier (n 31, Chapter Six), p xvi. See Barbier (n 31, Chapter Six), p xvi. Corrine Le Quéré et  al. ‘Temporary reduction in daily global CO 2 emissions during the COVID-​19 forced confinement’, Nature: Climate Change (19 May 2020):  accessed 9 June 2020.

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should not necessarily entail the restoration of even the problematic, unsustainable aspects of the status quo ante. Planning for the next pandemic: the importance of emergency preparedness Writing this book during lockdown and attempting to envisage the future is impossible. Yet one prediction I can confidently make is that there will be another pandemic. The WHO has been acutely concerned about the outbreak of an influenza pandemic across the globe; so much so, that many accused them of overreacting to the 2009 swine flu outbreak.35 Coronavirus epidemics are also not unknown, with both SARS and MURS outbreaks happening within the first two decades of the 21st century.36 The point here is not that hindsight is 20-​20; rather, pandemic preparedness is fundamentally important, as infectious pandemics are probable and foreseeable. Certainly, aspects of responses will vary from pandemic to pandemic; indeed, Adam Kucharski has stated that there is a saying in the field of epidemiology that ‘if you’ve seen one pandemic, you’ve seen … one pandemic’.37 This is not to say that planning is impossible; instead it further underlines the importance of what is known as ‘emergency preparedness’. Many of the responses to the COVID-​19 pandemic have been the result of states fumbling around in the dark, caught out unguarded when the COVID-​19 pandemic hit; yet the possibility of a pandemic similar to COVID-​19 occurring could have been foreseen. ‘Emergency preparedness’ refers to the systems and protocols that are put in place in various 35 36

37

See Peter Doshi, ‘The elusive definition of pandemic influenza’ (2011), Bulletin of the World Health Organization, 89: 532. Managing Epidemics: Key Facts about Major Deadly Diseases (2018), World Health Organization:  accessed 29 June 2020, p 28. Adam Kucharski, The Rules of Contagion (Profile Books, 2020), p 3.

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organizations, and which are triggered in the event of an emergency. While many aspects of emergencies are sudden and unforeseeable, there may also be aspects that are generic or common to similar types of emergency. Emergency preparedness plans are thus developed well in advance of a specific crisis and practised repeatedly, in order to identify and address any weakness in the plans, and to improve responders’ decision-​making processes during an actual emergency.38 They are particularly important in the context of the increasingly complex and interdependent networks that society is dependent upon, where ‘known unknowns’ and ‘unknown unknowns’ are ever-​present. Stresses on many of these systems were demonstrated at the onset of the COVID-​19 pandemic, with food supply chains being disrupted by people panic-​ buying goods, or simply just altering their shopping habits by reverting to infrequent but large grocery shopping trips, rather than regular trips when they buy fewer goods.39 Emergency preparedness cannot ensure that every eventuality is covered, but it can confront many of the issues involved in increasing the effectiveness of the response. Emergency preparedness plans can also improve the transparency of emergency responses which, in turn, can be used for improving mechanisms of accountability once the emergency has abated, thus fostering a culture of justification. Many of the problems documented in this book regarding states’ responses to COVID-​19 have been symptomatic of this lack of emergency preparedness. PPE shortages are just one

38

39

See Eiichi Taniguchi, Frederico Ferreira and Alan Nicholson, ‘A conceptual road network emergency model to aid emergency preparedness and response decision-​making in the context of humanitarian logistics’ (2012) Procedia: Social and Behavioral Sciences, 39: 307. Simon Lowe, ‘How Covid-​19 will change our shopping habits’, BBC Worklife (1 July 2020):  accessed 3 July 2020.

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concrete example, but it goes deeper than this.40 The lack of legal and procedural processes in place to allow for remote legislative hearings,41 difficulties surrounding track and trace technologies,42 and the absence of clear plans at the outset of the pandemic for both entering and exiting lockdown are all symptomatic of this. There are even more tangential effects of the pandemic, where adequate emergency preparedness frameworks may have flagged up issues in advance. An excellent example of the lack of emergency preparedness or contingency plan is the Irish secondary school Leaving Certificate examination. The vast majority of student assessment for the Leaving Certificate is done during a three-​week period of exams every June. Only a minimal amount of assessment is based on coursework carried out throughout the year. Due to the closure of schools and social distancing measures, the examinations had to be cancelled, with the government eventually deciding that students’ grades would be based on a predictive system; a decision that caused a substantial degree of outcry from students, parents and teachers.43 Emergency preparedness and human rights

Emergency preparedness can also ensure that human rights are better protected. Legislation could be drawn up and published in advance, with parliament and wider society given adequate time to scrutinize the proposals effectively. In turn, sufficient

40 41 42 43

See from n 37 to n 46 in Chapter Two. See from n 31 to n 43 in Chapter Four. See from n 21 to n 34 in Chapter Five. Carl O’Brien, ‘Leaving Cert cancelled: Students who want written exam will have to wait’, Irish Times (7 May 2020):  accessed 3 July 2020.

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consideration could be given to the various complex –​and often competing –​values affected by these plans. The discussion of human rights in Chapter Two (Pandemics and Human Rights:  Non-​Derogable Rights) and Chapter Three (Pandemics and Human Rights:  Derogable Rights) showed the untenable distinction between socioeconomic rights on the one hand, and civil and political rights on the other; the former place duties on the state, and the latter merely require the state to refrain from acting. Civil and political rights place clear obligations on the state –​ranging from duties to investigate, to providing adequate equipment and safe, clean hospitals, prisons and other state-​run institutions. Often, this may entail large demands on resources. This distinction (between civil and political rights on the one hand, and socioeconomic rights on the other) is often undermined by the rights espoused by the treaties themselves. Thus, the right to education is contained in Article 2 of Protocol 1 ECHR, despite the fact that such a right would ordinarily be classified as a socioeconomic right, owing to the resource pressures it demands from the state. Attempts to mitigate the impact of lockdown powers on property rights through huge state spending may also be required, to protect and vindicate other rights affected by these closures. Such schemes are also required by the socioeconomic rights enshrined in the European Social Charter (ESC) –​the Council of Europe’s flagship treaty that protects socioeconomic rights –​and in the International Covenant on Economic, Social and Cultural Rights. The rights of workers to safe and healthy working conditions,44 their right to freedom of association,45 the right of everyone to access social welfare services,46 and the right of everybody to enjoy the highest possible standard of

44 45 46

Part 1.3 ESC. Part 1.5 ESC. Part 1.14 ESC.

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health attainable, are just some examples of the socioeconomic rights that may be impacted upon in a pandemic.47 These rights may also be acutely affected in the aftermath of a pandemic too and during the possible deep economic recession that may follow them. Such concerns must feed into state decisions as to the steps taken to alleviate a pandemic and to confront its aftermath. Effective emergency preparedness could ensure that there is adequate consideration of these rights well before a possible pandemic hits. The ESC also draws specific attention to particular groups who have unique needs in a society. The rights of children, women, the disabled, the elderly, and migrants are all expressly espoused in the ESC.48 Many of these groups were at particular risk during the COVID-​19 pandemic and the different lockdown regimes imposed by states. For example, concerns were raised that lockdown measures forcing people to stay in their place of residence and continuing to co-​habit with their abuser was putting vulnerable women and children at risk. Consequently, both the UN and the Council of Europe described domestic violence as a ‘shadow pandemic’.49 Relatedly, the fact that older people were more exposed and at risk of the virus, as evident from the earlier discussion of outbreaks in care homes, further underlines that these groups

47 48 49

Part 1.11 ESC. Article 7 ESC; Article 23 ESC. ‘Violence against women and girls before, during and after COVID-​ 19:  the shadow pandemic that must be addressed’ Council of Europe:  Newsroom (18 May 2020):  accessed 3 July 2020; ‘The Covid-​19 shadow pandemic:  Domestic violence in the world of work: a call to action for the private sector’, UN Women (27 May 2020): accessed 3 July 2020.

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must be expressly considered, when states consider pandemic responses and their aftermath.50 The special protection afforded to these groups by the ESC could therefore be better vindicated through effective emergency preparedness plans in future; plans drawn up well in advance of the next pandemic and stress-​ tested, so as to avoid similar mistakes happening in future. Final conclusions The 2020 COVID-​19 pandemic has upended many inevitable aspects of modern life. It has shown us that no person is an island. It has shown us that all our lives are intertwined; everybody is dependent upon everyone else. It has shown us that low-​paid workers are, in fact, essential workers –​and that the possibility of the vast majority of the population being able to stay in lockdown and suppress the virus through social distancing was only possible because these essential workers put themselves at risk. Ultimately, the COVID-​19 pandemic has shown us that there is, very much, such a thing as society. For ‘normalcy’ to be restored, therefore, no person can stand isolated and alone. In turn, no country can stand isolated and alone either. The speed at which COVID-​19 spread across the globe was because it exploited the networks built by globalization.51 While states may attempt to withdraw from the rest of the world in the face of a pandemic, as long as the virus is somewhere, it has the potential to be everywhere. Policies that are antagonistic to the international community will not work. All states are interconnected, so robust international

50 51

See n 53, Chapter Two. Santiago Mas-​Coma, Malcolm Jones and Aileen Marty, ‘Covid-​19 and globalization’ (2020), One Health:  accessed 3 July 2020, p 9.

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EMERGENCY POWERS IN A TIME OF PANDEMIC

cooperation and institutions must be in place to prepare and respond to the next pandemic.52 At the time of writing, the COVID-​19 pandemic is far from over. It remains to be seen what world will emerge from lockdown; whether COVID-​19 emergency powers will be lifted as soon as possible, or whether others will become entrenched or will pave the way for similar measures to be introduced to respond to crises other than a pandemic. It is clear that constitutions, international treaties and the fundamental values they espouse –​such as democracy, human rights and the rule of law –​do not need to be jettisoned in response to such a crisis. Instead, at these moments, their true value is revealed.

52

See Richard Horton, ‘Offline: It’s time to convene nations to end this pandemic’ (2020), The Lancet, 396: 14.

166

Index 11 September 2001 95–​96, 123, 149

Bank of England 77 Berlin, Isiah 42–​43 Biden, Joe 109 Black Death 141 BLM (Black Lives Matter) movement, US 83–​84 Bolsonaro, Jair 23–​24, 120 border controls 4, 139–​143 Brazil 23–​24, 120 ‘business as usual’ models of response to COVID-​19 25–​28, 73–​74, 78

A absolute rights 46 African Americans, and racial discrimination 137 African Charter on Human and Peoples’ Rights 25 African Convention on Human and Peoples’ Rights right to liberty and security (Article 6) 66 age and immunity certificates 139 see also elderly people, rights of air bridges 142 Albania 24, 88 Amazon 132 Amos, Merris 30, 32 antibody tests for COVID-​19 136 Armani Da Silva v UK 53 Armenia 24, 69, 85–​86 assembly and association, freedom of 3, 38, 78 Article 11 (right to freedom of assembly and association), ECHR 79, 82–​86, 85, 163 austerity measures 152, 153, 154 Australia 104 Austria 102, 105 Azerbaijan 101

C Canada 55–​56 Capitol Hill, Washington DC 101 care homes 55–​56, 164 Cataline 38 centralized model of contact tracing app 131–​132 Charles I, King 37 Charter of Fundamental Rights of the European Union 129 children, rights of 164 Chile 107 China 23 Cicero 37–​38 Cincinnatus 16 civil and political rights 38–​39, 163 Civil Contingencies Act 2004 (CCA 2004), UK 97–​98, 99, 100 Civil Rights Act 1964 (US) 137 civil rights movement, US 137 climate change 4, 9, 146, 155–​160

B BAME (black, Asian and minority ethnic) groups 139, 142, 143

167

Emergency Powers In A Time Of Pandemic

CO₂ emissions, decline of during lockdown 159 Coffey, Darragh 100 Coke, Edward 37 consent, and apps 133, 137 Constant, Benjamin 38 constitutionalism 122–​123 constructivism 13–​14 contact tracing apps 4, 143 and privacy rights 127–​135 Contagion 136 containment stage of response to COVID-​19 21, 22, 63, 64, 120, 126–​127, 141 control orders 16, 68 Coronavirus Act 2020, UK 97, 98–​99, 100 Council of Europe 41, 69, 85 and domestic violence 164 counter-​terrorism 114–​115, 124, 134, 144, 148–​149, 152 COVID-​19 antibody tests 136 containment stage of response to 21, 22, 63, 64, 120, 126–​127, 141 deaths from 8 UK 2, 48, 120–121, 124–​125 economic/​financial impact of 77, 87, 88, 116, 153–​154 and emergency preparedness 160–​162 exceptional emergency response to 20–​24 mitigation stage of response to 21, 23, 64, 120, 126, 127 and non-​derogable rights 46–​47, 48, 50–​51, 52, 53–​56 R number (‘reproduction number’) 6, 22, 23, 63 responses through law 24–​29 ‘business as usual’ models 25–​ 28, 73–​74, 78 ‘legislative accommodation’ model 26, 28–​29, 150 responses to 18 spreading of 21, 22, 23

symptoms of 7 WHO’s declaration of as a pandemic 7, 20–​21, 141 see also lockdown; pandemics criminal law 148–​149 Croatia 102 culture of justification 2, 36, 45, 82, 91, 144 curfews 68 Cyprus v Turkey 57

D data protection issues, and contact tracing apps 127–​135 De Campos, Thana C 19 de jure states of emergency 3, 27, 31, 33, 36, 59, 62, 90, 91, 110–​ 111, 140, 150 see also states of emergency de Menezes, Jean Charles 52–​53 De Vries, Catherine E 113–​114 death penalty, Ireland 10 death toll statistics, discrepancies in 86 decentralized model of contact tracing app 131 Declaration of the Rights of Man, France 37, 42 democracy impact of states of emergency on 3–​4, 8, 11, 17–​18 and pandemics 93–​94, 117–​118 elections 108–​112 executives 93–​94, 95–​101, 96–​97, 99, 108, 117 failure to respond 112–​116 judiciary 93–​94 legislatures 93–​94, 94–​95, 101–​108, 117–​118 Democratic Party primaries, US 109 derogable rights 3, 8, 9–​10, 17, 24, 29–​30, 36, 61–​62, 89–​92 lockdown and liberty 65–​77 lockdown and qualified rights 78–​89

168

index

see also non-​derogable  rights derogation 32–​33 Article 15 (states of emergency and derogation), ECHR 10, 24, 32, 33, 47, 58–​59, 65, 73, 74, 76, 77–​78, 80, 86, 89, 91, 131, 135, 143, 149 Article 4 (derogation), ICCPR (International Covenant on Civil and Political Rights) 10, 24, 33 Dictionary of Epidemiology 18, 19 digital technologies, and legislatures 105–​108 disability disability rights 164 and immunity certificates 138–​139 discrimination, and the end of pandemics 120, 127, 136, 137–​ 139, 143–​144 domestic violence 164 Doshi, Peter 20 Dyzenhaus, David 91

E Ebola pandemic (2014) 19 ECHR (European Convention on Human Rights) 5, 40–​41, 43, 46, 56 Article 1 of Protocol 1 (right to property) 79, 86–​89, 89–​90, 163 Article 2 (right to life) 47–​49, 51–​52, 54, 57, 58, 65 Article 2 of Protocol 1 (right to education) 79, 163 Article 2 of Protocol 4 (right of freedom of movement) 67, 76–​77, 79 Article 3 (torture and inhuman and degrading treatment or punishment) 53, 54–​55, 56, 58–​59 Article 5 (right to liberty and security of person) 62, 76, 79

169

detention of healthy persons to prevent the spread of disease (Article 5.1(e)) 70–​74 detention of persons for the prevention of the spreading of infectious diseases (Article 5.1(e)) 69–​70 and lockdown 65–​74 Article 6 (right to a fair trial) 79 Article 8 (right to privacy and family life) 79, 83, 89, 129, 135 Article 9 (freedom of thought, conscience and religion) 83 Article 10 (freedom of expression) 80, 85–​86 Article 11 (right to freedom of assembly and association) 79, 82–​86, 85, 163 Article 15 (states of emergency and derogation) 10, 24, 32, 33, 47, 58, 65, 73, 74, 76, 86, 89, 91, 131, 135, 143, 149 proportionality test 80 quarantining effect of 77–​78 duty to investigate breaches 57–​58 economic impact of COVID-​19 77, 87, 88, 116, 153–​154 ECtHR (European Court of Human Rights) 40, 41, 43, 47, 49, 51, 53, 54, 55, 133 and derogable rights 62, 67–​68, 70, 71, 73, 74, 76, 79–​80, 81, 88, 89, 90, 91 education, right to Article 2 of Protocol 1 (right to education), ECHR 79, 163 EF v UK 53 elderly people, rights of 164, 165 elections 108–​112 emancipatory potential of human rights 2, 35, 36, 41–​42, 126, 138 emergency powers see states of emergency

Emergency Powers In A Time Of Pandemic

F

emergency preparedness 17, 146, 160–​162 and democracy 111–​112 and human rights 162–​165 employment, and immunity certificates 138–​139 England BLM (Black Lives Matter) protests 83–​84 see also UK Enhorn v Sweden 69–​70 epidemics, definition of 18–​19 ESC (European Social Charter) 41, 163, 164 Estonia 24, 69, 88 ethnicity, and discrimination 138, 139 European Commission of Human Rights 55 European Committee of Social Rights 41 European Convention on Human Rights see ECHR (European Convention on Human Rights) European Court of Human Rights see ECtHR (European Court of Human Rights) European Data Protection Board 134 European Parliament 106–107 global ‘climate and environmental emergency’ 155 European Social Charter (ESC) 41, 163, 164 Eurozone 124, 153 eviction, protection from 88–​89 executives and human rights 36, 45 and pandemics 93–​94, 95–​101, 96–​97, 99, 108 and states of emergency 3–​4, 16–​17, 18 expression, freedom of 38, 78 Article 10 (freedom of expression), ECHR 80, 85–​86

Facebook 132, 136 fair trial, right to Article 6 (right to a fair trial), ECHR 79 family life, right to 78 Article 8 (right to privacy and family life), ECHR 79, 83, 89, 129, 135 and the end of pandemics 120 Fianna Fáil, Ireland 113, 154 financial crisis of 2008 152, 153, 159 and Greece 89–​90 financial impact of COVID-​19 77, 87, 88, 116, 153–​154 Fine Gael, Ireland 113 Finucane v UK 57 Fiscal Compact Treaty 2012 124 food supply chains 161 France 106, 109, 114 French Revolution 37, 42, 157 friend-​enemy distinction 121–​122 ‘furlough’ scheme, UK 153

G gay people 141 GDP (Gross Domestic Product), impact of COVID-​19 on 87 GDPR (General Data Protection Regulation) 134 Gearty, Conor 49 Georgia 24, 69, 88 Germany 114 Bundestag 104 Nazi period 123, 136 Weimar Constitution 26, 151 GGND (‘Global Green New Deal’) 158–​159 globalization 165–​166 Good Friday Agreement 149 Google 132 Great Depression 151–​152, 158 Greece Koufaki and Adedy v Greece 89–​90, 91

170

index

‘Green New Deal,’ US 158 Griffith, JAG 80 Gross Domestic Product (GDP), impact of COVID-​19 on 87

immunity certificates 4, 135–​137, 143 and discrimination 137–​139 immunity passports 137 Independent Police Complaints Commission 52–​53 Independent Reviewer of Terrorism Legislation, UK 144 influenza pandemics 19, 22, 160 inhuman/​degrading treatment Article 3 (prohibition of torture and inhuman and degrading treatment or punishment), ECHR 53, 54–​55, 57, 58–​59 Inter-​American Convention on Human Rights right to liberty and security (Article 7.1) 66 international cooperation 165–​166 International Covenant on Civil and Political Rights see ICCPR (International Covenant on Civil and Political Rights) International Covenant on Economic, Social and Cultural Rights 40, 163 Inter-​Parliamentary Union  101 Ireland care homes 55 constitution 10–​11 Article 15.1.3° 105–​106 Article 15.5.2° 10 Article 28.2.3° 10 General Election February 2020 113 Leaving Certificate examinations 162 lockdown 1 measures to enable legislature to sit during pandemic 102–​103 Oireachtas 97 rent freeze 154 Irish community in the UK, as a suspect community 115 Israel 102 Italy 114

H H1N1 Influenza pandemic (2009) 19, 20 Haiti 42 Hayek, FA 123–​124, 125 Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (Health Act 2020), Ireland 97 herd immunity 1 heteroinvestiture 15, 16, 99 Hillyard, Paddy 115 Hitler, Adolf 26 HIV 21–​22, 141 Enhorn v Sweden 69–​70 Hobbes, Thomas 112 Hope, Lord 51 House of Representatives, US 109 human rights 36–​39, 119 author’s view on 41–​43 and contact tracing apps 127–​135 derogation clauses in international treaties 9–​10 emancipatory potential of 2, 35, 36, 41–​42, 126, 138 and the end of pandemics 120 impact of states of emergency on 2–​3, 4, 8, 11, 17 responsibility for protection of 43–​45 sources of international norms 40–​41 Hungary 26

I ICCPR (International Covenant on Civil and Political Rights) 40 Article 4 (derogation) 10, 24, 33 Article 17 (privacy rights) 129

171

Emergency Powers In A Time Of Pandemic

declaration of emergency under constitution 24–​25, 32

libertarian conception of human rights 35–​36, 42–​43, 48 liberty and lockdown 65–​74, 65–​77 primacy of 123–​124, 125 and quarantine 140 right to 3, 67 Article 5 (right to liberty and security of person), ECHR 62, 69–​74, 76, 79

J Jackson J, Robert 27, 78 JCHR (Joint Committee on Human Rights), UK 130, 131, 134 Jews, discrimination and persecution of 136, 141 Johnson, Boris 84 judiciary, the, and human rights 36, 43–​44, 80–​82, 90–​91 Julius Caesar 26

and lockdown 65–​74

Article 7.1, Inter-​American Convention on Human Rights 66 and security 112 life, right to 4 Article 2 (right to life), ECHR 47–​49, 51–​52, 54, 57, 58, 65 limited rights 3, 62, 65 lockdown 3, 62–​65, 150 assessing breaches of 79–​92 economic/​financial impact of 116 freedom of assembly and association 82–​86 and liberty 65–​77 lifting of 126–​127, 143–​144 contact tracing apps 127–​135, 143 immunity certificates 135–​139, 143 quarantine, air bridges and border controls 139–​143 and qualified rights 78–​89 reduction of CO2 emissions during 159 Locke, John 113

K Kant, Immanuel 113 Keenan v UK 54 Knesset, Israel 102 Koufaki and Adedy v Greece 89–​90, 91 Kucharski, Adam 160 Kuhn, Thomas 157–​158

L landlords, rights of 88–​89 Latvia 24 Leaving Certificate examinations, Ireland 162 legal black holes 58, 122 legal grey holes 91 ‘legislative accommodation’ model of responses to COVID-​19 25, 28–​29, 150 legislatures and human rights 36, 44, 45 and pandemics 94–​95, 117–​118 measures to help to sit 101–​104 prorogation of UK Parliament, 2019 94–​95 quorums 103–​104, 117 and states of emergency 3–​4, 18 liberal democracy 123 liberalism 122

M Magna Carta 37, 40 Mallory, Conall 51–​52 market forces 123–​124 Markey, Ed 158 Markovits, Inga 39 Martin, Micheál 102–​013 migrants, rights of 164

172

index

‘mission creep’ in surveillance mechanisms 134–​135 mitigation stage of response to COVID-​19 21, 23, 64, 120, 126, 127 Modi, Narendra 120 Moldova 24 movement, freedom of Article 2 of Protocol 4 (right of freedom of movement), ECHR 67, 76–​77, 79 MURS epidemic 22, 160 Muslims, as a suspect community 115

rush to normalcy 4, 120–​126 and freedom of expression 85–​86 and permanent states of emergency 146–​151 and the right to property 86–​89 as states of emergency 18–​20 panic buying 161 paradigm shifts 157–​158 Poland 114 presidential elections 110–​111 PPE (personal protective equipment), supply failures 50–​ 54, 126, 161–​162 privacy, right to 38, 78, 120 Article 8 (right to privacy and family life), ECHR 79, 83, 89, 129, 135 and contact tracing apps 127–​135 property rights 38, 39 Article 1 of Protocol 1 (right to property), ECHR 79, 86–​89, 89–​90, 163 proportionality tests 79–​80, 85 and contact tracing apps 130, 131, 135 Public Health (Control of Disease) Act 1984 (PHA 1984), UK 97–​98 Putin, Vladimir 120

N necessity, concept of 13, 79, 116, 150–​151 negative liberty 42–​43, 48, 65, 89 New Deal, US 151–​152, 158 New Zealand 140, 142 non-​derogable rights 2–​3, 8, 17, 35–​36, 58–​59, 89–​92 and COVID-​19 46–​47, 48, 50–​ 51, 52, 53–​56 duty to investigate 57–​58 pandemics and the right to life 47–​49 see also derogable rights; derogation from international human rights treaties North Macedonia 24 Northern Ireland Troubles 149

Q qualified rights 3, 62 and lockdown 78–​89 quarantine 22, 63, 64 and lifting lockdown 139–​143 quarantining of emergency powers to exceptional situations 3, 27–​ 28, 31, 33, 61–​62, 90 quorums 103–​104, 117

O Obama, Barack 159 Ocasio-​Cortez, Alexandria  158 organized crime 151 Osman v UK 48–​49

P

R

pandemics definitions of 18, 19–​20 and economic crises 151–​155 end of 119–​120 (see also lockdown, lifting of)

R number (‘reproduction number’) 22, 23, 62, 63 racial discrimination, US 137 ‘rally around the flag’ effect 113

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religion, as basis for discrimination 138 religious services, restrictions on 83 rent freeze, Ireland 154 ‘reproduction number’ (R number) 22, 23, 62, 63 right-​wing populist governments 120–​121 Rio Earth Summit 157 Roman Republic 14–​16, 26, 37–​38, 93, 99 Romania 24, 29 Roosevelt, Franklin Delano 151–​152, 158 rule of law, impact of states of emergency on 8, 11 rush to normalcy 4, 120–​126 and legislatures 107–​108 Ryan, Michael 20–​21

and lockdown 65–​74 Article 7.1, Inter-​American Convention on Human Rights 66 self-​isolation strategies  22 Senate, US 109 Serbia 24, 102, 110 Sinn Féin, Ireland 113 Skype 136 slavery 42 Slovakia 102 Smith and Others v The Ministry of Defence 51 social distancing 23, 62, 64, 83 and legislatures 102–​103, 105 socioeconomic rights 39, 40, 41, 163–​164 soldiers, right to life of 51 South Korea 102 sovereign power 122 Spain 24–​25, 32, 114 Spanish Flu pandemic (1918) 73 spread, as a key concept in pandemics 19 state of exception 121–​122 state-​run institutions, protection of individuals in 54–​56 states of emergency 9–​13 abuse of 4, 11, 15, 26 Article 15 (states of emergency and derogation), ECHR 10, 24, 32, 33, 47, 57–​58, 65, 73, 74, 76, 77–​78, 80, 86, 89, 91, 131, 135, 143, 149 de jure 3, 27, 31, 33, 36, 59, 62, 90, 91, 110–​111, 140, 150 decisions on declarations of 13–​18 definition of 12–​13 pandemics as 18–​20 quarantining of emergency powers to exceptional situations 3, 27–​28, 31, 33, 61–​62, 90 risk of permanence of 145–​151 signal sent by declarations of 9, 29–​32

S San Marino 24 Sanders, Bernie 109 SARS epidemic 22, 160 SARS-​CoV-​2 coronavirus  7 spreading of 21, 22 see also COVID-​19 Schmitt, Carl 121–​122 ‘scientific revolution’ 157–​158 ‘second wave’ 119 security 123 target hardening 101–​102 security of person, right to Article 5 (right to liberty and security of person), ECHR 62, 76, 79 detention of healthy persons to prevent the spread of disease (Article 5.1(e)) 70–​74 detention of persons for the detention of persons for the prevention of the spreading of infectious diseases (Article 5.1(e)) 69–​70

174

index

U

temporary nature of 12, 145 theory of 2, 8 Strugarin, Ramona 29 subjectivity 14 Sumption, Lord 80–​81 ‘sunset clauses’ in emergency legislation 28, 100, 135 ‘surveillance capitalism’ 132–​133 suspect communities 115–​116, 150 and the end of pandemics 120, 141–​142 swine flu outbreak (2009) 160 Switzerland 102

UK care homes 56 case law on COVID-​19 laws 32 death toll from COVID-​19 2, 48, 120–121, 124–​125 financial impact of COVID-​19  77, 87 ‘furlough’ scheme 153 herd immunity 1 lack of ratification of Protocol 4 of ECHR 67, 76 possible derogation from human rights treaties 30 reaction to COVID-​19 124–​125 terrorism-​related deaths  124 UK Parliament 119 ‘hybrid’ system during pandemic 107–​108 prorogation of, 2019 94–​95 Second World War period 96 UKSC (UK Supreme Court) 51, 53, 57, 67 prorogation of Parliament 2019 94–​95 UN (United Nations) and domestic violence 164 Universal Declaration of Human Rights (1947) 40 UN Environment Programme GGND (‘Global Green New Deal’) 158–​159 UN Human Rights Council 152 United States Patriot Act 2001 149 US anti-​racism and police brutality protests 77 BLM (Black Lives Matter) movement 83–​84 civil rights movement 137 Declaration of Independence 37, 42 financial impact of COVID-​19  77 ‘Green New Deal’ 158 human rights 27 legislature 104

T Tanko v Finland 55 target hardening 101–​102 Tarquinius Superbus 15 tenants, rights of 88–​89 terrorism 112–​113, 114–​115, 119, 123, 124–​125, 152 and permanent states of emergency 147–​149 Terrorism Act 2000 (UK) 149 testing and tracing strategies 22 see also contact tracing apps Thatcher, Margaret 157 thought, conscience and religion, freedom of 78 Article 9 (freedom of thought, conscience and religion), ECHR 83 Thunberg, Greta 155 torture Article 3 (prohibition of torture and inhuman and degrading treatment or punishment), ECHR 53, 54–​55, 57, 58–​59 trade unions 83 Trump, Donald 120, 141, 142 Tunisia 104 Turkey 29 Cyprus v Turkey 57 lack of ratification of Protocol 4 of ECHR 67, 76

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New Deal 151–​152, 158 primaries 109 racial discrimination 137 US Constitution 25 US House of Representatives 96 US Senate 95–​96 US Supreme Court 27, 151–​152

declaration of COVID-​19 as a pandemic 7, 20–​21, 141 declaration of H1N1 influenza as a pandemic (2009) 19, 20 definition of pandemic 18 emergency preparedness 160 epidemic diseases 19 and PPE (personal protective equipment) 50 WitoldLitwa v Poland 71 women, rights of 164

V vaccination 136 vote, right to 38–​39

Z

W

Z and Others v UK 54–​55 Zika pandemic (2016) 19 Zoom 136 Zuboff, Shoshana 132–​133

Weimar Constitution, Germany 26, 151 WhatsApp 136 WHO (World Health Organization) 126

176

“Dr Greene places the chaos and maelstrom of 2020 within the wider literature on rights and the state of exception. And he does so in an accessible book!” Fergal Davis, King’s College London

“As the second wave of COVID-19 and new (emergency) governmental measures draws ever nearer, this is a particularly timely book. Essential reading for those with legal and non-legal backgrounds alike!” Rumyana van Ark (née Grozdanova), University of Amsterdam

“Dr Greene directs his inimitable expertise on states of emergency to address the challenge of our time, COVID-19. A crucial text critically evaluating the state’s response to the pandemic.” Jane M Rooney, Durham University

“Makes a compelling case that the next pandemic and the actual threat of climate change need to be prepared through regulation...a must-read for any law and policy maker mindful about human rights and the rule of law.” Oana Stefan, King’s College London

How do we maintain core values and rights when governments impose restrictive measures on our lives?

Alan Greene is Senior Lecturer in Law at the University of Birmingham.

Declaring a state of emergency is the best way to protect public health in a pandemic but how do these powers differ from those for national security and economic crises? This book explores how human rights, democracy and the rule of law can be protected during a pandemic and how emergency powers can best be ended once it wanes. Written by an expert on constitutional law and human rights, this accessible book will shape how governments, opposition, courts and society as a whole view future pandemic emergency powers.

ISBN 978-1-5292-1541-0

@BrisUniPress BristolUniversityPress bristoluniversitypress.co.uk

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