Society of Labour Lawyers: Legal considerations for lifting the lockdown

Keir is right: it’s time to have an adult conversation about easing the lockdown in the UK. Coronavirus restrictions, including the ones we are currently living under, are vital to stop the spread of Covid-19 and save lives. But there must be a plan for how these measures will gradually be lifted. That is why the Society of Labour Lawyers has published a report considering the legal implications of some of the key measures that are likely to be used by the government in the next phase of the crisis.

The measures implemented by the government to respond to the pandemic were rushed, and consequently full of holes that are starting to be exposed. But there has been a remarkable level of compliance from the public and a real spirit of national unity in the face of this unprecedented challenge. We have all accepted that some quite extreme steps, including a national lockdown, are necessary to bring Covid-19 under control.

We also accept that, as we slowly return to normality, further measures are needed to continue to save lives and prevent our public services being overwhelmed. They might include for example the use of face masks in public, mass testing of the population, tracking people’s movements, immunity passports or maintaining a lockdown for certain high-risk groups whilst easing the restrictions on everyone else. These measures will be more complicated to implement in practice.

The practical challenges come with difficult moral and ethical questions. On the one hand, there is the need to protect people’s lives and livelihoods. On the other, we face restrictions on our civil liberties and intrusion into our private lives that would have been unacceptable only a few months ago. Even more challenging is the fact that these restrictions are likely to apply to different people in different ways – risking arbitrariness and unfairness when put into practice.

The purpose of the law is to balance these competing pressures and address these difficult questions in a fair and proportionate way. The government’s comprehensive plan for easing the lockdown must be underpinned by a robust legal framework to ensure that people’s rights, wellbeing and legitimate interests are protected.

Our report examines various policies that the government might try, including lifting the lockdown for essential businesses, lower-risk groups or geographical areas. Whilst this approach is legally possible, it requires careful and evidence-led justification for treating certain groups differently. There is also a risk that disadvantaged groups may be disproportionately affected, raising significant legal issues.

Digital tools such as mobile apps with tracing functionalities can play an important role in contact tracing and warning. This allows public health authorities to quickly identify as many contacts as possible with a confirmed case of Covid-19 – and the app will likely rely on private companies for its design and management. For an app to be rolled out successfully, steps to protect the personal health data of UK citizens must be taken. This could include contract conditions or legislation imposed on the tech companies involved in collecting the data, ensuring that our health data cannot be sold or otherwise used for commercial ends.

The report also looks at how the most vulnerable groups might be ‘shielded’, and whether this could be done voluntarily or would require a change to existing legislation. If the government decides to change the law, there are significant practical and legal problems, in particular in relation to defining clearly the shielded group and properly communicating the new policy. If the policy is enforced by the law, this requires accepting that vulnerable people will face criminal liability in a way that does not affect the rest of the population. In addition, restrictions that are disproportionate or lack proper justification are likely to be subject to legal challenge.

In response to our report, Shadow Attorney General Lord Falconer QC said: “I very much welcome this paper. It’s part of a vital debate to ensure that these necessary laws restricting activity to promote public health have public confidence. Policy makers and law makers should read the paper. They don’t need to agree with all of it but it focuses the legal debate on the key issues.” Lord Falconer will be joining the Society of Labour Lawyers for a webinar to discuss the report.

The webinar can be watched live here on Tuesday, May 5th, at 6pm.