Analysis of Covid-19 legislation from a human rights perspective, by Adam Wagner (barrister at Doughty Street Chambers, Visiting Professor in Law at Goldsmiths University of London and special advisor to UK Parliament’s inquiry into Covid-19), in conversation with Professor Dimitrios Giannoulopoulos (Head of the department of Law at Goldsmiths).
Covid-19 deaths are very likely to give rise to significant number of legal claims in courts, in the context of the duty to protect the right to life (under Art 2 of the European Convention on Human Rights). The ensuing litigation will be highly complex: (a) the key question will be whether the government provided wrong or insufficient equipment, despite having an opportunity to provide the right equipment; (b) causation issues will be difficult to tackle, ie did the victim die as a result of having not been provided with the right PPE?; (c) courts are likely to take into account the global shortage in PPE, and generally tend to shy away from what may be considered pure political decision making; (d) whether failures could be seen as systematic would be key (in line with ECHR case law).
On the Covid-19 lockdown legislation in the UK:
Differences in the content of legislation, official guidelines and government guidance to the public have caused confusion and unpredictability as to police enforcement, e.g. regarding restrictions on the amount of times you can go out to exercise: there is no such restriction in the law in England, Scotland and NI, for instance, though government guidance is to go out only once, which is also what the law in Wales provides.
The question whether the police response to the Covid-19 legislation is good or not is an open one too. There were signs of police adopting a heavy-handed approach early on. For example, the Derbyshire Police engaged drones to monitor the lockdown in the Peak District, followed by “lockdown shaming”. The police should have adopted a public-health centred approach instead, ie focus on stopping mass gatherings only (the obvious big threat here), not worrying about “people going out to buy an Easter egg” or “having a picnic in the middle of nowhere” for instance. The powers that police were afforded should be used as a last resort.