Human Rights Law and the COVID-19 Pandemic in the United Kingdom Part 2

Merris Amos

Professor of Human Rights Law, Queen Mary University of London

 

  1. Introduction

The purpose of this note is to provide some further detail to the human rights issues raised by the COVID-19 pandemic in the United Kingdom building on important work already done. This is a rapidly moving situation and new human rights issues and challenges arise every day. In discussing these it is important that the national rules on human rights protection through law are as clear as possible. The focus here is on setting out the applicable relevant rules and, where possible, suggesting how these might apply to current issues. In Part 1 of this note[1] the focus was on: derogation from the ECHR (and HRA); the overarching Article 2 ECHR duty to protect life; medical treatment of COVID-19 patients; and lockdown and the right to liberty. In this note the discussion of the human rights impact of the lockdown is continued. Also discussed are access to information and the surveillance and privacy issues arising from exiting the lockdown.

  1. Lockdown and human rights

As noted in Part 1, the Health Protection (Coronavirus) Restrictions (England) Regulations 2020 imposing ‘lockdown’ came into force on 26 March 2020[2] although the lockdown had already been announced on 23 March 2020. A number of restrictions are imposed including the closing of certain premises[3], restrictions on gatherings[4]and restrictions on movement.[5] No person may leave the place where they are living without ‘reasonable excuse’. A number of ‘reasonable excuses’ are listed but the list is non exhaustive. There is also further explanation in government guidance.[6] It is this particular regulation, Regulation 6, which has prompted the most comment, particularly where there has been overzealous and, in some instances, unlawful policing in its enforcement.[7]

A number of human rights issues arise as a result of the lockdown and it is important to identify these as the laws regulating lockdown, including the meaning of ‘reasonable excuse’ must be interpreted consistently with human rights so far as it is possible to do so.[8] In Part 1 of this note it was concluded that the restrictions, in most instances, were unlikely to amount to a deprivation of liberty as defined in Article 5 ECHR. Nevertheless, numerous other human rights are interfered with including the right to private life (Article 8), the right to family life (Article 8), freedom of religion (Article 9), freedom of expression (Article 10) and freedom of assembly (Article 11).

These are all qualified rights meaning that, apart from Article 14 where a slightly different test applies, each can be subject to lawful interference provided that the interference is prescribed by law and necessary. As discussed in Part 1 of this note, whether or not the lockdown is ‘prescribed by law’ is open to doubt although the central message to stay at home is clear. In his judgment in Gillan, Lord Bingham explained the requirements of ‘prescribed by law’ as follows:

The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred.[9]

Most who have looked carefully at the regulations and guidance agree that the messaging surrounding the lockdown has been very confused. Guidance conflicts with the regulations and the further guidance issued by various police forces and the College of Policing. Government ministers have also given inconsistent advice.[10] There is an urgent need for the guidance to be consolidated and a dedicated website set up allowing individuals to check what is and what is not permitted. However, it is important to also appreciate that it is quite difficult to determine in advance every instance where there is a ‘reasonable excuse’ to go out and it would be beyond the current capacity of police forces to set up dedicated inquiry lines. For the majority, the message to stay at home is clear. But there is a minority for whom the lockdown is extraordinarily difficult, and the guidance is unclear as to what they should do. Were a HRA claim to be brought under Article 8, it would succeed on this lawfulness ground alone.

Putting the ‘prescribed by law’ problem to one side, the next question when determining justification for an interference with qualified rights is whether the interference is necessary. Whilst it is difficult to generalise, for the majority of people, the interference with rights is necessary[11] for the protection of the rights of others. As explained in Part 1 of this note, the lockdown is a measure taken in order for the state to fulfil its Article 2 positive duty to protect life. However, for some, the lockdown is not proportionate to the objective pursued. It may also be in violation of an absolute right, such as Article 3 (freedom from torture and inhuman or degrading treatment or punishment) or Article 2 itself where the threat to life posed is more serious than the threat to life the lockdown protects against. Some of the examples which have arisen to date are examined in the following paragraphs. There will most likely be more as the situation develops and this should not be considered a definitive list.

2.1   Domestic violence

Since lockdown came into effect, there has been a dramatic increase in the incidents of domestic violence reported. On 4 April 2020 it was reported that more than 25 organisations helping domestic violence victims ‘have reported an increase in their caseload since the start of the UK’s coronavirus epidemic’.[12] On 9 April 2020 Refuge, the UK’s largest charity supporting women and children against domestic violence, reported a 700 percent increase in traffic to the National Domestic Abuse Helpline website it runs. This was following a media push to ensure that women know they can access help during lockdown.[13] On 15 April 2020 it was reported that at least 16 suspected domestic abuse killings have been identified by campaigners since the lockdown was imposed.[14]

Article 3 of the EHCR protects against inhuman and degrading treatment and the state is under a positive duty to protect against this.[15] As discussed in Part 1 of this note, Article 2 of the ECHR imposes a positive duty on the state to protect against a real and immediate risk to life. Being able to leave the house ‘to avoid or escape risk of injury or harm’ is already recognised as a ‘reasonable excuse’ in the government guidance.[16] But such is the scale of the problem that the government has also now launched a campaign to help victims of domestic abuse ‘At home shouldn’t mean at risk’ and provided specific guidance on support for victims of domestic abuse.[17] But much more is required including adequate funding to make sure the campaign is effective and emergency funding to ensure charities supporting victims are able to continue their work.

2.2   Discrimination – disproportionate negative impact

As already noted, lockdown is an interference with the rights to private life and family life (Article 8), freedom of religion (Article 9), freedom of expression (Article 10) and freedom of assembly (Article 11). For most it is a necessary and proportionate measure given the number of lives at stake. But, as with all blanket interferences with rights, there are those for whom it is not proportionate. Given their personal circumstances, they are suffering from a disproportionate and negative impact. Whilst for these individuals it is possible to argue, for example, that the interference with private life fails to strike a fair balance between their own rights and the protection of the right to life of others, an alternate route is to use Article 14 ECHR which protects against discrimination in the enjoyment of Convention rights.

When applying Article 14, a structured approach, posing a series of questions, is normally utilised. The most well-known is the list formulated by Brooke LJ in Michalak,[18] later modified by the Court of Appeal in Carson.[19] The questions are as follows:

(1) Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?[20]

This framework has also been employed in more recent Supreme Court jurisprudence including the judgments in DA and Stott.[21]

 

With respect to the first question, as already noted, the facts are likely to fall within the ambit of one or more of the Convention rights ranging from Article 2-Article 11 ECHR. There is also a difference in treatment, but this is not direct discrimination (a failure to treat like cases alike) but indirect discrimination (a failure to treat differently persons whose situations are significantly different). In her judgment in SG[22] Lady Hale explained the concept of indirect sex discrimination as follows:

 

In indirect discrimination, by definition, women and men are treated in the same way. The measure in question is neutral on its face. It is not (necessarily) targeted at women or intended to treat them less favourably than men. Men also suffer from it. But women are disproportionally affected, either because there are many more of them affected by it than men, or because they will find it harder to comply with it. It is therefore the measure itself which has to be justified, rather than the fact that women are disproportionately affected by it.[23]

 

The next step is to identify a ground of discrimination and unlike anti-discrimination law, Article 14 is not limited in respect of what types of discrimination it prohibits. Some grounds are set out in the Article itself, but also prohibited is discrimination based on ‘other status’. The ‘other status’ grounds for potential discrimination here are numerous and could include status as homeless, a lone parent, disabled, an asylum seeker or a resident of Scotland (as opposed to England).

As discussed in Part 1 of this note, Article 14 is not an absolute right and differences in treatment can be justified but in common with Article 1 Protocol No 1, no legitimate objectives are set out in Article 14. The objective here would be fulfilling the Article 2 duty to protect life. The next step is determining whether or not there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.[24] In its judgment in Steinfeld[25] the Supreme Court confirmed that the test of justification in relation qualified Convention rights such as Article 14 was that summarised in Quila:

(a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?[26]

 

With respect to the disproportionate impact of the lockdown, some successful arguments have already been made and government guidance amended without the need for court proceedings. For example, following pre-action correspondence, on 8 April 2020 the government confirmed that it had amended the guidance[27] to make it clear that those with health conditions that required them to leave their homes more than once per day, and travel beyond their local area, were expressly permitted to do so. The claim seeking this clarification had been brought by two families with children with autism spectrum disorder whose conditions made it necessary for them to leave the house more than once a day for their own well-being.[28]

Another claim, not yet determined, has been brought by The Good Law Project to establish the right of every school-age child in England who is being taught remotely to a laptop or tablet and to internet connectivity in their home.[29]

2.3   Self-imposed restrictions

As the lockdown and the message to stay at home and save lives continues, it is also important to consider those who are taking the lockdown so seriously that they are not seeking vital medical treatment, or taking sufficient steps, if it is possible for them to do so, to stave off serious damage to their mental health. The Police Federation has claimed that there were early indications of a rise in suicides during the first fortnight of the lockdown.[30] It was reported on 16 April that there has also been a sharp rise in the number of seriously ill people dying at home because they are reluctant to call for an ambulance:

Leading medical organisations have voiced anxiety that some people are inadvertently damaging their own health, and even risking their life, by shunning NHS care. People are either too scared to go to hospital or do not want to add to the strain on the NHS when it is under its greatest ever pressure with COVID-19, they said.[31]

Here the government is in a difficult position. To publicly campaign that its central message ‘stay home and save lives’ is subject to exception in these instances[32] could result in the gains from the lockdown being lost. But this is a serious problem with lives at risk and a much clearer message that attending hospital for other serious problems is possible is needed. As the experience of Italy demonstrates, it will also be important, once lockdown is eased, that enduring fear does not prevent people looking after their mental health and seeking medical treatment where this is needed.

2.4   Closure of businesses and compensation

Finally, it is important to consider the human rights implications of the requirement to close premises and businesses during the lockdown.[33] There are a number of human rights engaged including Article 8 private life, but given the loss of income involved, the most relevant is Article 1 Protocol 1 ECHR which protects property. As property has not been confiscated, for the purposes of Article 1 Protocol 1, this would be characterised as a control on the use of possessions in accordance with the general interest.[34] Interferences with property in this way are also covered by this right.

Article 1 Protocol 1 is a qualified right. In his judgment in Axa[35] Lord Reed held that justification for interference was to be determined as follows:

If an interference has been established, it is then necessary to consider whether it constitutes a violation. It must be shown that the interference complies with the principle of lawfulness and pursues a legitimate aim by means that are reasonably proportionate to the aim sought to be achieved. This final question focuses upon the question whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.[36]

Here, as in relation to other qualified rights, the justification would be Article 2 and protection of life. However, the process of justification proceeds slightly differently where Article 1 Protocol 1 is engaged. First, considerable deference is shown by courts where the subject matter engages social or economic policy.[37] Second, where there is a control on the use of possessions, rather than a deprivation, the payment of compensation is not normally required for the interference to be justifiable. This is so even if the legislation in general terms affects some people more than others.[38] However, in its judgment in Mott[39] the Supreme Court did not determine if the licence conditions imposed on a salmon fisherman limiting his catch amounted to deprivation or control holding that it was still necessary to consider proportionality. Given the severity and disproportion of the impact on the claimant, in agreement with the lower courts it concluded that compensation must be paid.

 

A number of business support measures have already been announced.[40] Whether or not these meet the requirements of Article 1 Protocol 1 in the current context remains to be seen.

 

  1. Access to information

3.1 A right of access to information

Article 10 ECHR protects the right to freedom of expression. There is a large body of HRA jurisprudence concerning the interpretation and application of this right and it is crucial for journalists seeking to give the fullest picture of the government’s handling of the current crisis. Protection of whistleblowers is also vital[41] and it is important to remember that it was in part due to the suppression of freedom of expression in China that COVID-19 was able to spread.[42]

As the crisis unfolds, access to accurate information from the state is becoming more important. However, in the UK under the HRA Article 10 has not been interpreted to include a right of access to information. This conclusion was first reached by the Supreme Court in its judgment in Sugar.[43] Two years later it had the opportunity to reconsider in its judgment in Kennedy[44] where it was argued, on the basis of supportive ECtHR authority, that Article 10 conferred a positive right to receive information from public authorities and an obligation on public authorities to impart information unless withholding was justified under Article 10(2).

The majority held that the Grand Chamber statements on Article 10 ‘should continue to be regarded as reflecting a valid general principle’ that Article 10 does not contain a prima facie duty of disclosure of all matters of public interest.[45] On this question Lords Wilson and Carnwath dissented. Lord Wilson held that the Supreme Court should now conclude that a right ‘to require an unwilling public authority to disclose information can arise under Article 10.’[46] Whilst a reversal of this line of authority from the Supreme Court based on recent ECtHR seems unlikely in the short term, developing a stronger right of access to public interest information will be unlikely to diminish in importance over the next few years.[47]

3.2 Controlling false information

The COVID-19 pandemic has generated a plethora of false information. One false conspiracy theory links 5G towers to the COVID-19 pandemic. Others have suggested fake cures and remedies. As these predominantly spread via unregulated privately owned social media platforms, such as Facebook and WhatsApp, the government, and other users, can only alert them to the problem and hope that action will be taken. This has had some success to date. It has been reported that Facebook has deleted two groups promoting conspiracy theories;[48] WhatsApp has limited users to only being able to forward a message one chat at a time if it has already been shared five or more times; and YouTube has banned all conspiracy theory videos linking COVID-19 to 5G.[49]

3.3 Lack of information from government

Messages from the government concerning issues such as testing, deaths in care homes, personal protective equipment for NHS staff and others, and the limits of lockdown have been evasive and unclear. The names of those who serve on the government’s Scientific Advisory Group for Emergencies (SAGE) have not even been made public. The Leader of the Labour Party, Keir Starmer, wrote to the government on 14 April 2020 asking it to commit to setting out the criteria it would be using to inform how and when it intends to ease the lockdown; publish its exit strategy; and outlining the sectors of the economy and the core public services likely to see restrictions eased. At the time of writing there has been no response apart from health secretary Matt Hancock expressing frustration about being asked to explain the exit strategy. It is widely believed that there actually is no exit plan yet.[50]

As already noted, Article 10 confers no right of access to public interest information. But other Convention rights contain procedural guarantees including the rights to private life and family life protected by Article 8. In certain circumstances, this can afford a right of access to information. In its judgment in Hardy and Maile v UK[51] which concerned the regulation of hazardous activities and the dissemination of relevant information, the ECtHR held as follows:

The Court has previously indicated that respect for private and family life under Article 8 further requires that where a Government engages in hazardous activities which might have hidden adverse consequences on the health of those involved in such activities, and where no considerations of national security arise, an effective and accessible procedure must be established which enables such persons to seek all relevant and appropriate information.[52]

In the circumstances of that case, the Court concluded that the authorities had provided information as required by Article 8 and that there was an effective and accessible procedure by which the applicants could seek any further relevant and appropriate information should they so wish.[53] Whilst a similar duty might not arise at the current point in lockdown, it is not difficult to imagine it arising in the near future if no information about an exit strategy is provided.

Finally, as discussed in Part 1 of this note, there are also the duties to investigate under Articles 2 and 3. Whilst these are not usually deployed to secure access to information in the short term, in the present circumstances a court ordered inquiry into questions such as the absence of suitable personal protective equipment for NHS and other frontline staff and the failures in testing could expose government decision making to much needed scrutiny.

  1. Lifting lockdown – surveillance and privacy

At the time of writing it has just been reported that a three-week lockdown extension is likely to be approved but, as already noted, there is yet no published exit strategy. Despite this, from the experience of other countries, and the advice of experts, testing and some form of contact-tracing will be necessary. Writing in The Guardian on 16 April, Professor Helen Ward stated as follows:

So where to now? Once again, public health experience, including modelling, leads to some very clear recommendations. First, find cases in the community as well as hospitals and care homes; isolate them, and trace their contacts using a combination of local public health teams and digital tools.

Second, know your epidemic. Track the epidemic nationally and locally using NHS, public health and digital surveillance to see where cases are continuing to spread. This will be essential so that we can start to lift the lockdown while shielding the population from hotspots of transmission. Build community resilience by providing local support for vulnerable people affected by the virus and the negative impact of the control measures.

Third, ensure transmission is suppressed in hospitals, care homes and workplaces through the right protective equipment, testing, distancing and hygiene. Investigate the differential effects on black and minority ethnic groups, and provide appropriate protection.

Fourth, ensure that the most vulnerable, socially and medically, are fully protected through simple access to a basic income, rights for migrants, and safety for those affected by domestic violence.

Already concerns are being raised at the interference with privacy which will be necessary to facilitate the lifting of strict lockdown.[54] Article 8 ECHR protects the right to respect for private life. The taking, retention and disclosure of the type of information needed will involve clear interferences with private life including private information (medical records, your location, your contacts) and autonomy (control over information about you). However, Article 8 is a qualified right and interferences are permissible for a variety of reasons including the rights of others (Article 2 right to life) and for the economic well-being of the country.[55] There is a pressing need to get the economy moving again, at least in limited form. A recent report from the Office for Budget Responsibility warning that the UK economy could shrink by a record 35 percent by June.[56]

Justifications for interferences with private life to facilitate lifting the lockdown must be ‘in accordance with the law’ which has the same meaning as ‘prescribed by law’. This lawfulness aspect of Article 8 is a vital tool for the ECtHR which has used it to shape the response of human rights law to the proliferation of state databases and other measures of surveillance.[57] The measures must also be necessary and on this question, in its judgment in Marper v UK, the Grand Chamber of the ECtHR held as follows:

The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article . . . The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored . . . The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse . . . The above considerations are especially valid as regards the protection of special categories of more sensitive data.[58]

With Parliament set to resume on 21 April 2020, it is vitally important that work starts as soon as possible on drafting the appropriate, and human rights compatible, legal framework including as wide a consultation as possible.

 

 

 

 

 

 

9

 


[1] Also available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576496

[2] The same measures were made in relation to Wales, Scotland and Northern Ireland. For further detail, see Joint Committee on Human Rights, Chair’s Briefing Paper, 8 April 2020 https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/correspondence/Chairs-briefing-paper-regarding-Health-Protection-Coronavirus-Restrictions-England-Regulation-2020.pdf

[3] Regulation 4.

[4] Regulation 7. See further David Mead, The human rights implications of the ban on gatherings in Regulation 7 https://protestmatters.wordpress.com/2020/04/10/the-governments-response-to-COVID-19-the-human-rights-implications-of-the-ban-on-gatherings-in-regulation-7/

[5] Regulation 6.

[6] https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do

[7] See, for example, the quashing of a £660 fine where a woman was wrongly charged with an offence. L. Dearden, ‘Coronavirus: Woman fined £660’ The Independent, 3 April 2020.

[8] Section 3, HRA. Where problems arise, this is by far the quickest route to protection and does not require the intervention of Parliament.

[9] R. (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12 at [34]

[10] See the Report from the Joint Committee on Human Rights, op cit and T. Hickman, E. Dixon and R. Jones, ‘Coronavirus and Civil Liberties in the UK’ https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/

[11] To be ‘necessary’, relevant and sufficient reasons must be given to justify the restriction; the restriction must correspond to a pressing social need; and the restriction must be proportionate to the legitimate aim pursued.

[12] M. Townsend, ‘Domestic abuse cases soar as lockdown takes its toll’, The Guardian, 4 April 2020.

[13] https://www.refuge.org.uk/refuge-sees-700-increase-in-website-visits/

[14] J. Grierson, ‘Domestic abuse killings ‘more than double’ amid COVID-19 lockdown’, The Guardian, 15 April 2020.

[15] In re E (a child) [2008] UKHL 66

[16] https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do

[17] https://www.gov.uk/government/publications/coronavirus-COVID-19-and-domestic-abuse/coronavirus-COVID-19-support-for-victims-of-domestic-abuse

[18] Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617. The questions were first formulated in St Brice v London Borough of Southwark [2001] EWCA Civ 1138, [2002] 1 WLR 1537.

[19] R (on the application of Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797, [2003] 3 All ER 577.

[20] As set out by Lord Steyn in R (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 WLR 2196, [42].

[21] R. (DA) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] 1 WLR 3289; R. (Stott) v Secretary of State for Justice [2018] UKSC 59, [2018] 3 WLR 1831. See also In the Matter of an Application by McLaughlin for Judicial Review [2018] UKSC 48, [2018] 1 WLR 4250.

[22] R. (SG) v Secretary of State for Work and Pensions [2015] UKSC 47

[23] [189]

[24] Ghaidan v Godin-Mendoza [2004] UKHL 30, per Lord Nicholls at [18].

[25] R. (Steinfeld) v Secretary of State for International Development [2018] UKSC 32.

[26] [41] Steinfeld ibid quoting from R. (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] AC 621 at [45].

[27] https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do See para [15]

[28] See further S. Broach, ‘Why the coronavirus lockdown adjustment for people with disabilities and mental health conditions was the right thing to do’ https://www.specialneedsjungle.com/why-lockdown-adjustments-people-disabilities-mental-health-conditions-right-thing/

[29] See further https://goodlawproject.org/case/children-will-be-left-behind/

[30] M. Robinson, ‘Coronavirus lockdown has led to increase in suicides’ The Daily Mail, 6 April 2020

[31] D. Campbell, S, Marsh and S. Johnson, ‘Warning as UK coronavirus outbreak leads to sharp rise in deaths at home’ The Guardian, 16 April 2020.

[32] As set out in the guidance para [1] https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others

[33] Regulations 4-5 Health Protection (Coronavirus Restrictions) (England) Regulations 2020.

[34] See R v Secretary of State for Health, ex p Eastside Cheese Co [1999] 3 CMLR 12 concerning an emergency control order made in relation to a cheese manufacturer following a boy becoming serious ill with E. coli.

[35] Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46

[36]  Ibid, [108]. See also In the Matter of Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, [2015] AC 1016 at [45] per Lord Mance

[37] Axa General Insurance, op cit

[38] R. (Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment [2004] EWCA Civ 1580, [58].

[39] R. (Mott) v Environment Agency [2018] UKSC 10.

[40] https://www.gov.uk/government/collections/financial-support-for-businesses-during-coronavirus-COVID-19

[41] See further G. Letsas and V. Mantouvalou, ‘Is gagging NHS workers lawful? Coronavirus and freedom of speech’ https://uklabourlawblog.com/2020/04/14/is-gagging-nhs-workers-lawful-coronavirus-and-freedom-of-speech-by-george-letsas-and-virginia-mantouvalou/

[42] H. Leung, ‘Whistleblower Doctor Who Sounded Alarm on Coronavirus Dies in China’, Time, 7 February 2020.

[43] Sugar v BBC [2012] UKSC 4

[44] Kennedy v The Charity Commission [2014] UKSC 20

[45] [94], Lord Mance, with whom Lords Neuberger and Clarke agreed, and Lord Toulson with whom Lords Neuberger and Clarke agreed, at [145].

[46] [189]. Lord Carnwath at [219]

[47] There is also the Freedom of Information Act 2000 but this is unlikely to be of much utility given the numerous exemptions it contains.

[48] A. Cuthbertson, ‘Dangerous conspiracy theories still spreading’, The Independent, 15 April 2020.

[49] L. Kelion, ‘Coronavirus: YouTube tightens rules after David Icke 5G interview’, BBC News, 7 April 2020.

[50] R. Mason, ‘UK needs lockdown exit strategy, says key coronavirus adviser’, The Guardian, 16 April 2020.

[51] ECtHR, Application no. 31965/07, 14 February 2012

[52] [246] citing McGinley and Egan v UK, Application no. 21825/93, 28 January 2000 and Roche v UK, Application no. 32555/96, 19 October 2005

[53] [249]

[54] See, for example, E. Selinger, ‘The lasting privacy and civil liberties impacts of responses to COVID-19https://www.oecd-forum.org/users/386048-evan-selinger/posts/65529-the-lasting-privacy-and-civil-liberties-impacts-of-responses-to-COVID-19

[55] Article 8(2).

[56] https://obr.uk/efo/economic-and-fiscal-outlook-march-2020/ Numerous claims have been made about the various violations of human rights, including deaths, which will result from a recession but at this point, the evidence for such claims is not clear.

[57] See European Court of Human Rights Personal data protection, February 2020 https://www.echr.coe.int/Documents/FS_Data_ENG.pdf

[58] [103]