Article written by CWS Board Adviser Adrian Mason who is also is Deputy Chair (Political) of North Wales Conservatives and a Constitutional lawyer.

Those of us who are either medics or lawyers have long since learnt that you do not say what you do for a living at a social gathering. As a lawyer I have learnt this lesson the hard way after being asked for all sorts of legal advice at such events. At political events, where people know of my background, it is much more difficult to avoid being asked questions on legal issues relating to current affairs.

The Covid-19 pandemic has raised several questions directed towards me from concerned individuals, but not of the type you would expect. A number of people have asked me my views on whether the Westminster and Welsh Governments ‘lock-down’ restrictions are an infringement upon their human rights. There is no easy answer to this question so I thought I would set out the legal framework for their actions and then go on to see what the European Convention on Human Rights (ECHR) says about it.

The Health Protection (Coronavirus) Regulations 2020 have at their basis the Public Health (Control of Disease) Act 1984.  These regulations were rushed through Parliament at the start of the pandemic in March with little scrutiny. If you care to study the regulations in detail you will see that they are quite draconian, giving ministers sweeping powers to control the lives of each and every one of us. Regulation 3 states that:

 ‘the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health, and that the incidence or transmission of Coronavirus is at such a point that the measures outlined in these Regulations may reasonably be considered as an effective means of preventing the further, significant transmission of Coronavirus.’

In Wales, the basis for lock-down restrictions were to be found in the Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020 enacted on March 26 2020 and now replaced by The Health Protection (Coronavirus Restrictions) (No.2) (Wales) Regulations 2020.

Although the United Kingdom was an initial signatory to the ECHR in 1950, it wasn’t until the Human Rights Act 1998 (HRA1998) that all UK laws automatically became subject to the Convention. It means that UK laws, Parliamentary and judicial, must be compatible with the ECHR. So how do our respective Governments’ Coronavirus regulations fit in with the ECHR?

The ECHR sets out a number of basic rights and freedoms for the individuals of signatory countries; however, Article 15 says that a government can suspend some of those freedoms in the following circumstances:

  1.  it must be in time of war or other public emergency threatening the life of the nation;
  2. the measures taken in response to that war or public emergency must not go beyond the extent strictly required by the exigencies of the situation; and
  3. the measures must not be inconsistent with the State’s other obligations under international law.

The natural and customary meaning of “public emergency threatening the life of the nation” is clear and comes from an ECHR case called Lawless v Ireland. It refers to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.”

So, on the face of it, both the Westminster and Welsh Governments have complied with the provisions of the European Convention. Nobody can deny that back in March when these Regulations were enacted, the United Kingdom faced a great unknown about how the virus would affect the nation. However, you will note that Article 15 also states that the measures taken must not go beyond the extent strictly required by the exigencies of the situation. The ECHR does say that national governments are best placed to determine the extent of the emergency but makes clear that this is not an unlimited discretion in this respect.

It is fair to say that the dire predictions of the Imperial College model of the Covid-19 virus progression in March have not come true. As sad as it is, as some people have lost their lives as a result of it, Covid-19 had not lived up to its initial reputation. According to the ONS, the total number of UK deaths in the week ending July 31st, 2020 was 8946, below the five year average for the seventh week in a row. It is, therefore, becoming increasingly difficult for the respective Governments to satisfy Article 15’s requirement that measures must not go beyond those strictly required.

Plans for more local lockdowns, maintenance of the two metre rule, travel restrictions and other infringement upon the liberties and freedoms of people may soon be challenged on the basis that the Regulations no longer satisfy the Article 15 criteria for suspending our human rights. UK governments will sooner or later have to accept that laws and regulations must be proportionate to the situation. It is becoming increasingly more difficult to justify the draconian measures enacted in March, amended to their current position, based on the empirical evidence of the last few months.