09 April 2020
Climate, Corona and Civil Liberties
A Discussion of Political Protests after the Coronavirus Act 2020
We are in exceptional times. There are two major threats, neither of them will be news.
Firstly, to the long term survival of the whole of humanity and the natural world, i.e. the climate emergency.
Secondly, to the survival of a significant proportion of humanity: the Coronavirus pandemic linked to potentially catastrophic economic consequences.
The purpose of my discussion is to look at the extent to which the remedy for the latter – “lock down” and other new legal provisions – does not prevent issues arising from the former being tackled.
This is an important issue as it is clear that direct action and novel political interventions largely, but not exclusively, promoted by Extinction Rebellion, were crucial in making sure the Government have done what they have so far achieved in tackling climate change. Yet, in effect, all forms of public demonstration are currently banned.
However, the politics of climate change cannot be left to the usual processes.
It is worthwhile reminding ourselves about the significance of the novel political interventions.
Extinction Rebellion only began protesting in October 2018. For 10 days of April 2019, Extinction Rebellion’s activities resulted in major junctions across London being occupied. Traffic was blocked on Oxford Street, Marble Arch and Waterloo Bridge. Graffiti was painted on a number of buildings, including the headquarters of Shell. Rebels glued themselves to trains, delaying commuters journeys. Others block the entrance to London’s Stock Exchange calling on the financial industry to act on climate change. Their tactics to disturb public order led to more than a 1,000 arrests. Overall, an unprecedented large number of people took part.
In the process the group achieved another feat. Apparently April set a new record for the number of times climate change was mentioned in the UK press. The previous record was in December 2015 when the Paris Climate Agreement was signed. Of course, this wasn’t the only thing that happened: it helped that April was also the month when David Attenborough aired his BBC documentary and Greta Thunberg met with British politicians.
The next consequence of this was that on 28th April 2019 the Scottish Parliament, and it was the first, declared a climate emergency.
On the motion of Jeremy Corbyn, the UK Parliament, to my understanding, unanimously on 1st May 2019 also declared a climate emergency.
Eventually the European Parliament on 28th November 2019 also declared a climate emergency.
All these debates were significantly influenced by the political protests organised and participated in by Extinction Rebellion.
The legitimate concerns of Governments to manage the Coronavirus have resulted in draconian restrictions – of more later (see The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020).
There appears little doubt that many of those restrictions are necessary for the protection of public health.
The legal source of these is the Coronavirus Act 2020.
It sets out a vast raft of new Government powers.
For our purposes, the key one is that, under Schedule 19 of the Act, the Scottish Ministers may, by regulation, impose restrictions in relation to persons in response to threats to public health threats.
The Schedule does not specify in detail the restrictions that may be imposed.
It does, however, provide an overall limitation on the Regulations that may be made by specifying that the Government’s powers set out in the Schedule in terms of Paragraph 2 (1) the Regulations must be “proportionate”.
So when the Scottish Ministers make the Regulations, the restrictions must be proportionate to what is sought to be achieved by imposing them.
It short, the Scottish Ministers in making the Regulations cannot “take a sledgehammer to crack a nut”.
In endeavouring to enhance public health the test is: are the restrictions excessive or not?
This is an important constraint which, as we will see, may be significant in considering whether the Regulations themselves are entirely lawful. It is important to note of course that what is proportionate to the risk will change with time. Hopefully as the risk reduces so too will be the appropriate restrictions on liberty to deal with that hopefully reducing risk.
Another constraint on any Regulations that the Government may produce is that under the Scotland Act 1998 everything the Scottish Government does must be human rights compliant. In other words, it is outwith the legislative competence of the Scottish Parliament to do anything that is not compatible with Convention Rights (Section 29 (2) (d) of the Scotland Act).
Not only that, but any statutory instrument the Scottish Government and, indeed for these purposes, the UK Government, produces under Section 6 of the Human Rights Act must too be human rights compliant. This includes Regulations made to constrain the Coronavirus.
The effect of Section 6 is that any statutory instrument may be applied by any Court or Tribunal only insofar as it is human rights compliant.
Although we are, of course, in a public health emergency, nothing has altered these really strong restrictions on arbitrary Government’s power.
It is worth scanning through some of the relevant human rights principles to which reference may possibly be made.
The Human Rights Principles
Article 2 is in some respects the fundamental article to which reference should be made in both the Coronavirus and climate emergency situations.
Article 2 specifies that everyone’s right to life shall be protected by law. It is absolute and not subject to significant qualifications for our purposes.
Article 3 is similar specifying that no one shall be subject to torture, or to inhuman, or degrading treatment or punishment.
Both of these Articles protect individuals from the potentially adverse consequences of the Coronavirus and the climate emergency situations. These Articles impose significant duties on the State.
The way they have been applied in the past can be illustrated by two cases. In Osman -v- The United Kingdom it was stated by the European Court of Human Rights that the authorities can be required to take operational measures to prevent a risk which they know about, or should have known about at the time of the existence of a real and immediate risk to an identified individual.
In Urgenda, the Netherlands Supreme Court held that the Netherlands’ Government had failed to take all steps reasonably necessary to protect its population from the adverse effect of the climate emergency.
These cases suggest that the Government may indeed require to take steps to mitigate against both the risks that we are currently faced by.
Article 5 is of course of relevance, that is the right to liberty.
That is broadly speaking the right not to be unlawfully detained.
This, along with the other Articles to which I will make reference is subject to the provision that persons may be lawfully detained for the prevention of the spreading of infectious diseases among other points. Presumably the qualifications to Article 5 are the source of the justification for Regulation 5 (1) of the Coronavirus Regulations to the effect that broadly speaking, no person may leave the place where they are living unless (in terms of Regulation 8 (4)) the person had a reasonable excuse. It may be thought that the drafting of the Regulation is misleadingly broad, but that probably is a matter for another conversation.
Article 8 provides for the respect for private and family life, home and correspondence.
Again, interference is permitted as is necessary in the interests of, among other points, public safety and for the protection of health.
Article 9 provides for the freedom of thoughts of citizens: everyone has the right to freedom of thoughts, conscience and religion. It is important that this may be either alone, or in community with others and in public or private.
Again, this is subject to the requirements of public safety and for the protection of health.
Article 10 provides for the right of freedom of expression and again, is subject to the protection of health.
Article 11 of the purposes of political engagement is key and provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others…
You will be getting the idea, again, it is subject to restrictions necessary for the protection of health.
So, there is no doubt that the Scottish Government, in making the Regulations, is entitled to restrict activities that would otherwise be permitted by our human rights entitlements.
Whether the limitations that the Government seeks to impose are human rights compliant is largely a matter of fact.
It goes back to the question of proportionality.
Are the restrictions and abridgements on human rights necessary for the protection of public health, or are they excessive? As above indicated, they may well change as the public health situation changes and it is presumably for this reason that the Scottish Government requires to review the Regulations as a matter of law every 21 days.
Anyone seeking to argue that the restrictions are necessary or possibly go too far in protecting public health will have to address the science: that involves looking at the Epidemiology.
In other words: how is the virus spread and are the restrictions, on activities that people are otherwise entitled to have, necessary?
To put my conclusion first.
On the face of it the restrictions insofar as they restrict political activities at least in the medium term would appear arguably to go too far.
For instance, Regulation 6 of the Coronavirus Regulations prohibits gatherings of more than two people (see footnote below).
The exceptions are where the gathering is essential for work purposes (Regulation 6 (b)). In these circumstances there appears to be no restriction.
There is no restriction on the number of people who may participate in legal proceedings (6)(b)(iv).
In that regard, it is interesting that the court practices appear to be similar to those of supermarkets: two metres gap between persons participating in the court, cleaning down and so forth.
So there are certainly exceptions to the ban on more than two people in a gathering.
But, there is no exception given for political purposes. Indeed, one suspects that given the speed with which the Regulations were produced this was not an issue that was addressed. It is my view that this issue does now indeed need to be addressed at least in the imposition of restrictions in the medium term.
It is interesting that the same Regulations at Regulation 4 states that permitted businesses (and a number of businesses including restaurants, pubs and so forth are not permitted to function) need to take reasonable steps to ensure that a two metre distance is maintained between any persons on the premises.
One assumes that the two metre rule is regarded as indeed sufficient to protect people in shops. If the two metre rule is indeed sufficient to protect people then surely some form of similar provision could be made for political meetings or gatherings of some sort, particularly if an overall cap to the number of persons attending such activities was proposed. (For instance, I understand that gatherings of five people are permitted in other European countries).
However, if the two metre rule does not protect people, should it be increased, or adjusted?
Are shop workers, for instance, being subject to excessive risks?
On a purely common sense basis I would have thought far more emphasis needs to be put on people self-isolating who have Coronavirus symptoms, even if very mild. I appreciate this would not prevent all infection as apparently people who have no symptoms can nonetheless spread the virus. However, currently the publicity is all about social distancing for people who do not actually have any illnesses, but who wish to protect themselves. Indeed, most of the help available seems to be directed towards people who are vulnerable and by inference are not so far infected. Should there not be more legal constraint and support for people who should be staying on their own in their house because of their illness? Difficult, of course, though this always will be. None of the Regulations will be easy to enforce however, it might be a good idea to highlight all the precautions that might be desirable, rather than merely some of them.
In any event, if shop workers are not being subject to excessive risks, then the two metre rule suggests a way forward for political gatherings of some sort.
It is, of course, early days yet.
However, assuming these, or similar, constraints are to last for any significant length of time then a discussion needs to be initiated with politicians as to the human rights compliance of the Regulations with a view to providing a safe way of citizens participating in democratic discussion and political activities.
Assuming that there is indeed a safe distance, then there surely should be some means of moderating the Regulations.
I make these points because it has been quite clear that political activity has been crucial in the tackling of climate emergency.
This political activity has not been a mere add on, but one of the key factors to the fact that it is now a high priority of democratic institutions to address climate emergency.
The pressure needs to be maintained at least in the medium term.
Whilst the Coronavirus is indeed a major public health emergency a debate needs to take place to ensure that other crucial activities can continue notwithstanding the Coronavirus emergency and of course everyone involved, including those concerned particularly by the climate emergency will want all activities to be safe.
The State has major human rights obligations that apply to two situations: the right to life, to mitigate climate change and the right to life to mitigate against the Coronavirus.
How can these obligations be managed together?
The Regulations seem to me to need to be re-drafted so that the State’s full obligations under Article 3 and the other relevant human rights Articles can be met.
On the face of it, the obligations may seem contradictory: through debate we need to get a solution, at least if any form of lockdown is to last more than another few weeks.
On a practical note, it does need to be emphasised that I have sympathy for the drafters of these Regulations. Obviously they had to be done very quickly. The usual conversations and debates that take place before legislation comes into force have not taken place. There are bound to be issues.
It is fair that campaigners engage with politicians and the relevant civil servants to raise these issues.
It is only if that engagement cannot take place that legal remedies need to be considered.
If the Government will not amend the Regulations to provide for legitimate political gatherings: protests and meetings: then the remedy is Judicial Review. There is a three month time limit from the date of the decision complained of.
In principle, legal aid might be available.
Judicial Review would be a much less risky strategy than breaching the Regulations knowingly and awaiting arrest. Apart from anything else, the Regulations as a whole will only be effective if they are generally publicly complied with and supported. The objective of all concerned should be to have a set of Regulations that give us all guidance we can all accept going forward.
Judicial Review would involve taking the initiative and having the conversation in a place that is specifically designed for that form of conversation: a Court.
Another angle will be to identify the ways the Regulations might be enforced in a discriminatory fashion. It is, of course, too early to assert that they are: we can merely be vigilant to identify any issues.
It is too early to be sure as to whether the Regulations are being enforced in a way that discriminates against persons with protected characteristics under the Equalities Act. However, if it is established that that is the case then a remedy in damages may be available against the enforcers of the Regulations who are being discriminatory.
Any discriminatory action in this context might be direct or indirect.
The arguments and the proof necessary will be complex, however, it is worthwhile bearing in mind that this remedy is potentially available and the deadline is six months.
In summary, taking into account everything that has happened so quickly it is appropriate now, in my view, to begin a conversation with Scottish Government Ministers about how the Government’s two key objectives, that is tackling the climate emergency and the Coronavirus emergency, can both be achieved and both at the same time.
Note 1: Regulation 6 states that during the emergency period, no person may participate in a gathering in a public place of more than two people except – (a variety of exceptions are stated, including gatherings that are essential for work purposes etc.). The Regulation itself does not specify any sanction. It should however be noted that Regulation 8 specifies that a person who contravenes a requirement inter alia Regulation 6 commits an offence. Regulation 8 (4) states it is a defence to a charge of committing an offence to show that the person in the circumstances had a reasonable excuse. (Our emphasis). It would accordingly, appear that the bar against gatherings in a public place of more than two people is not as absolute as the restriction set out in Regulation 6 would dare to state. This observation however, is subject to the point that most people would wish to avoid taking a risk and it would be preferable if this issue were clarified, rather than requiring people who query the provision to take a risk of committing an offence in order to seek clarification. This is route that should probably be avoided.
Note 2: This piece is drafted to encourage a conversation. It does not represent the author’s final or concluded view. Fairly obviously it doesn’t represent the view of any other person or organisation.
Paul D. Brown