As part of our series considering the human rights and equality implications of Covid-19, Declan O’Dempsey considers proposals being floated that would single out the over 70s for shielding and social distancing, once lockdown measures for other age groups are eased.

A warning was issued recently concerning the measures that the government is proposing for shielding and social distancing of the over 70s once, for other age groups, lockdown measures are eased (see Guardian 28 April 2020).

Age UK has asked that such a policy should be advisory rather than compulsory. They point to the consequences of this type of policy and its effect on the mental health of those over 70 and the impact on access to health services for illnesses unrelated to Covid-19. At the moment, the government’s plans are unclear. If the policy is put in place using advice which can be ignored without penalty by members of the group, will it achieve the aims that the government seeks? The effects of the outbreak have been worse amongst the older population than younger age groups (see ONS statistics), so could a compulsory policy be implemented lawfully?

Compulsion and human rights law

If the government decides to render shielding compulsory for this age group, it will need to amend the underlying legislation. The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (as amended) were made in the exercise of powers under sections 45C of the Public Health (Control of Disease) Act 1984. As their preamble points out, they are made in response to the serious and imminent threat to public health posed by the virus and form part of the public health response to it. They are expressly temporary and as soon as the Secretary of State considers that any restriction is no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection, he or she must publish a direction terminating that restriction.

Regulation 6, as amended, states that no person may “be outside of the place where they are living without reasonable excuse”. The Regulations give a list of matters constituting a reasonable excuse. Currently, they apply to everybody, no matter what age and an amendment to reflect compulsion for the over 70’s would need to be made and to be absolutely unambiguous.

Human rights and compulsion

A compulsory full-time restriction on the ability of persons in this age group to go outside their homes may offend against Article 5 of the European Convention on Human Rights. This provides as relevant “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…(e) the lawful detention of persons for the prevention of the spreading of infectious diseases,…”

To determine whether it constitutes “deprivation of liberty”, the concrete situation must be examined, taking account of the whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v Italy (1981) 3 EHRR 333, paragraph 92). 

A compulsory full-time lockdown would probably constitute a deprivation of liberty.

The obvious basis for the “lawfulness” of such deprivation of liberty would be “for the prevention of the spreading of infectious diseases”. A court would consider whether the spreading of the infectious disease is dangerous to public health or safety; and whether the deprivation of liberty complies with the principle of proportionality and the requirement that any detention must be free from arbitrariness. In doing so it will consider whether detention is the last resort to prevent the spreading of the disease because less severe measures have been considered and found to be insufficient to safeguard the public interest. Although in one case the Strasbourg court has suggested that this basis for justification may arise concerning persons who are spreading infectious disease (Enhorn v Sweden 56529/00), I do not think that this apparent restriction would withstand scrutiny. So although the situation in which there is a deprivation of liberty to protect the detainee from the spread of infectious disease has not been tested as yet, there is no reason to suppose that the same principles will not apply.   

However, those principles include the fact that such deprivation should be the weapon of last resort. The practical question would be whether non-compulsory self-isolation methods had been tried and failed. There would be no valid reason to impose a lockdown amounting to a deprivation of liberty unless it could be shown that this age group (in particular) would not isolate themselves voluntarily. 

Similarly, if the social distancing behaviour which the whole of society will have to observe would protect this age group adequately there would be no basis for such a draconian imposition.

Restrictions of movement (or curfews by another name)

Another form of restriction would be a limitation on freedom of movement of this age group. Limitations on freedom of movement (curfew, or restrictions on where a person can go at particular times) will not amount to a deprivation of liberty for Article 5 unless they are so stringent that the person cannot maintain a social life or relations with the world outside his or her home.

If those over 70 were compelled to keep to their homes at all times this would probably amount to a deprivation of liberty contrary to Article 5 and it would be very difficult for the state to justify the measure. 

If a restriction on movement of that group were imposed, it would be unlikely to have the required health effect, despite being lawful. 

Article 8 ECHR

A restriction on the movement of persons over 70 outside their own home or a deprivation of liberty may also constitute a lack of respect for their right to family and private life guaranteed by article 8 of the Convention. In this respect, there can be little doubt that restricting this age group to their home radically impairs their ability to maintain familial relationships. It also will restrict the individual’s ability to develop as an individual. Therefore, a restriction would engage article 8. The question, therefore, would be whether there is any lawful base for this restriction.

Any interference with an individual’s right to respect for private life must be in accordance with the law. That law needs to be clear, foreseeable, and adequately accessible. If the Coronavirus Regulations were amended, it would be necessary to have some foreseeability as to when the discretion to prosecute would be exercised in respect of those over 70. 

The assumption would be that the criminal law would be applied in the ordinary way and prosecutions would be brought when there was sufficient evidence of an offence to warrant prosecution. 

Interference with respect for private life can be justified if the measure pursues a legitimate aim. One of the specific legitimate aims that Article 8 paragraph 2 mentions is “the protection of health”. The government would need to be able to produce evidence to show that the measure (in reality) assisted it.

The government would also have to show that the restriction is “necessary in a democratic society”. There must be some pressing social need for the interference. The interference must be proportionate to the legitimate aim being pursued. In particular, the two hallmarks of a democratic society are tolerance and broadmindedness. Therefore, any measure would need to ensure that those over 70 are not stigmatised or exposed to unnecessary risks (such as risks resulting from their unwillingness to make use of other health services during the outbreak).

The state will have a broad margin of discretion when determining whether the restriction was necessary. However, the alternatives open to the government will be assessed when considering proportionality. A highly restrictive measure is unlikely to be lawful if there were non-coercive measures that could have been adopted which would have been similarly effective to achieve the public health aim or which might create lower risks to health for the affected group.

It is unlikely therefore that the government could impose mandatory restrictions on individuals unless it had first established that advisory methods were not working or, as in the case of the original regulations, stood a high chance of not achieving the aim of protecting public health.

Article 14 ECHR.

Assuming that either article 5 or article 8 are engaged, whether or not the government is in breach of those specific articles, plainly a rule that applies only to those 70 or over treats that age group less favourably than others who are not subjected to the shielding requirements. Article 14 provides that the rights under the Convention are to be applied without discrimination. 

Age discrimination in the exercise of the Convention rights is treated as discrimination based on “other status” (see Schwizgebel v Switzerland No 25762/07 at 85). However, it has not yet been regarded as one of the “suspect” grounds of discrimination such as race or sex, which require “very weighty reasons” for their justification (see British Gurkha Welfare Society v United Kingdom (44818/11) @ 88).

If a rule were introduced which applied only to those 70 or older, that less favourable treatment would need to be justified. There would have to be justification for it which is objective and reasonable.

Whether a compulsory rule could be introduced when non-compulsory alternatives are available is highly doubtful. The evidence of non-compliance with non-coercive advice would need to be extremely strong and would need to be accompanied by evidence of the actual spread to the vulnerable age group before a draconian compulsory measure could be justified even temporarily.

The common law: False imprisonment?

If some form of legal compulsion were used to restrict members of this age group within an area delimited by the government, it is possible, in some circumstances, that the common law tort of false imprisonment would occur. This requires an act which directly/intentionally/perhaps negligently causes a person to be confined within an area delimited by the defendant. 

A threat of legal process can amount to a sufficient method of confinement (see R v Rumble (2003) EWCA Crim 770). The essence of it is that the person is obliged to stay where he is whether he wants to do so or not. Legislation to achieve this result, to render it lawful at common law, would have to be crystal clear. 

The danger, otherwise, for the government, is that claims for false imprisonment could be brought, even if the measure were a limited form of a curfew imposed on the age group. The imprisonment, based on an unclear or faulty piece of legislation, could still result in claims for false imprisonment even if a person were to ignore the movement restrictions from time to time (see R (ota Jalloh) v Secretary of State for the Home Department [2020] UKSC 4). In Jalloh the Supreme Court considered the case of a man who was unlawfully subjected to a curfew. From time to time he did ignore it. But the Supreme Court made the point that this makes no difference to his situation while he was obeying the curfew. The court said that there was “the crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction.” During the time he was obeying the curfew, and when he did, it was enforced. The same would be true of those obeying the curfew due to its apparent compulsory nature. 

Partial movement restrictions are unlikely to be the measure of choice however due to their ineffectiveness in protecting those in the age group from contracting the disease. 

Voluntary advice.

Could there be any problems with the government strongly advising those aged 70 or older to continue self-isolation or shielding? The dangers of such advice are substantially different and do not involve infringements of the group’s human rights. However, the effect of introducing such strong advice may well be to make it more difficult for those age 70 or older to go outside their residence. It may also have the effect that they are exposed to different health risks because they do not access the health service when otherwise they would have used it. 

In the exercise of any of its functions, the government must consider the implications of its policy on this age group. It is bound to observe the principles under section 149 of the Equality Act 2010 (the public sector equality duty).

The obligation under section 149 is to have due regard to the need to eliminate discrimination, harassment, victimisation, or other prohibited conduct under the Act. It is to have due regard to the need to advance equality of opportunity between persons who are in an age group and those not in it. It is the duty to have due regard to the need to foster good relations between those who are within an age group and those who are not. In considering whether its policy advances equality of opportunity in this way, the government must have due regard to the need to remove or minimise disadvantages suffered by persons of this age group which are connected to their age and to take steps to meet their needs where these are different from the needs of persons outside the age group. Having due regard to the need to foster good relations involves having due regard to the need to tackle prejudice and to promote understanding in respect of an age group.

Any policy of giving strong advice to the age group will, therefore, need to take account of the pre-existing need for those in the age group of 70 or older to overcome social isolation and in many cases to access the health service for non-Covid 19 illnesses. Any advice-giving policy will need to try to mitigate the impact on social isolation and to encourage the age group to access health services. It is quite likely that if this age group is told to remain at home there will be an increase in non-coronavirus -related illnesses and deaths because of individuals not attending their doctor. 

This runs entirely counter to the aims that the policy will be said to pursue.

Consideration would need to be given to how the advice could ensure that those not complying with it were not stigmatised. It is difficult to see how this could be guaranteed. However, it is important to remember that the public sector duty is a duty to have due regard to this outcome, rather than a duty to achieve it. One way of demonstrating that due regard had been had to this effect would be to strengthen the protection relating to age discrimination concerning the provision of goods and services, and to ensure that the pre-existing criminal protections against hate crime based on age were better known and better enforced. 

Given that the aim of the Advice would be the protection of the health of what is considered to be a vulnerable age group, it will be quite difficult to show that the government has failed to have due regard, in broad terms, to the needs of the members of this age group if it has considered evidence that shows that ordinary social distancing rules/laws which will remain in force for the whole population would not provide sufficient protection for this age group. If there is no such evidence then there will be an argument that the Advice will not have had due regard to equality of opportunity (to lead a life outside the home) or the other aspects of the public sector equality duty. 

Any explicit policy would, therefore, be susceptible to a judicial review in the administrative courts.  

Conclusion

As I write it is unlikely, for purely political reasons if nothing else, that the government will introduce any compulsory measures to require an age group to remain at home. There is more danger from strongly worded advice from the government creating social pressure on this age group voluntarily to restrict its movements. This is because although the law will protect the civil rights of the members of this age group, there is very little that can be done to prevent government from engaging in giving behavioural advice. The sense of unease which age UK has expressed therefore has some foundation. In legal terms action to challenge the government’s policy formulation will probably need to be taken under section 149 if the Advice which is ultimately given fails to have due regard to the need to minimise the disadvantage which will be suffered by persons of this age group because of the pressure it will place on them and because of the sense of “victimisation” it may engender. Whilst, of course, the protection of the health of members of this age group is a very important consideration, it is by no means clear that the other, rumoured, measures of social distancing would not equally well protect their health. In the absence of any evidence to that effect, the government’s policy of advising everybody that those age 70 or over should continue shielding may be susceptible to challenge.