In deciding whether or not to end the lockdown, the Government must balance the right to life, the right to liberty and the right not to be discriminated against, Kris Gledhill writes.
Academic support for lifting the Covid-19 driven lockdown quickly has been provided by a small group Their views are being supported by commentators who emphasise the need to allow businesses to get back on track. But the majority of academic voices favours a much more cautious approach. As part of this academic debate, there is clearly a dispute about the data and the statistics, as other academics have criticised the figures used and the interpretation of them.
lifting of the lock-down value more highly various community interests from which we all benefit (including the economy and the education system), at least whilst we are alive. This can be summed up by their argument that those who may well die had other problems that would have killed them within the same year. As a spokesperson for the group puts it: Covid-19 “has been described as squeezing your year’s mortality risk into two weeks”. As The Smiths put it: “she was old and she would have died anyway”.
What does the human rights framework have to contribute to this debate? A whole host of rights are in play, including rights to work and rights to health, rights to assemble and rights to move about freely. But two are central in the short-term that is in focus: the right to life and the right to liberty.
During the Level 4 lockdown, everyone who is not an essential worker is detained under house arrest. When people are confined to their homes for most of the day, able to visit only limited places for short periods (shopping, limited exercise) and not able to have visitors, there is detention. But liberty is not an absolute right: it is something that cannot be taken away arbitrarily. This in turn means that the detention must have a legitimate aim and be necessary in supporting that aim. Public health is clearly a legitimate aim and so the real question is one of the necessity of the level of restrictions imposed.
This necessity brings in the right to life. Again, this involves an arbitrariness standard, but its importance is reflected in the international framework by a duty on the state to protect life. This duty to protect involves three elements. First, there must be protective laws in place, including laws that regulate high-risk situations such as hospitals and care homes. Secondly, those laws must be enforced. Thirdly, governments must take reasonable steps in situations when they know or ought to know of a real and imminent risk to life.
The third rule has developed largely in the context of violent attacks that should have been prevented by police action or self-harming situations that should have been prevented by medical interventions. But all three rules have also been applied in situations of predictable natural disasters such as mud-slides from heavy rain and methane explosions at rubbish dumps. The analogies with a pandemic are self-evident.
But there is an important additional principle underpinning the human rights framework, which is that all people are equal in rights. Avoiding discrimination in relation to rights precludes any situation in which some people have lesser rights in light of a status such as age or any form of disability (including health conditions). Indeed, discrimination is made out when there is a failure to correct an inequality arising from status unless that would impose an undue burden. This involves looking at the burden from the particular course of action – lockdown, restrictions short of a lockdown and so on.
Putting all this together leads to the following: There is a primary duty on the Government to protect lives, and it must take particular care to protect the lives of vulnerable people since otherwise there would be a discriminatory failure to protect.
Minimising deaths is the duty of the government. That in turn supports a policy of trying to eliminate Covid-19 because of the risk that it poses to vulnerable people. The detention of the majority of the population that this has entailed has not been arbitrary, and a cautious approach to lifting the level of restrictions is a proportionate restriction on the other rights in play.
Kris Gledhill is Professor of Law at AUT Law School
