Was Lockdown Illegal?

There has been much debate among lawyers as to whether the various “non-pharmaceutical interventions” (i.e., lockdown measures) that have been imposed over the past year and a half are actually legal.

In April of 2020, the barrister Francis Hoar wrote an article laying out the case for the illegality of Britain’s lockdown. While his piece is very much worth reading in full, I will do my best to summarise the main points here.

Hoar argues that lockdown measures were a “disproportionate interference with the rights protected by the European Convention on Human Rights”, and were therefore in breach of the Human Rights Act 1998.

To make his case, he appeals to the so-called Siracusa Principles, which were adopted by the UN Economic and Social Council in 1984. These principles stipulate that government responses to national emergencies that involve the restriction of human rights must fulfil certain criteria.

Specifically, they must be: carried out in accordance with law; directed toward an objective of general interest; strictly necessary to achieve that objective; the least intrusive way of achieving that objective; based on scientific evidence, and neither arbitrary nor discriminatory; of limited duration, respectful of human dignity and subject to review.

Hoar argues convincingly that lockdown measures failed to meet several of these criteria. For example, lockdowns were not strictly necessary, since the same outcomes could plausibly have been achieved with far less intrusive measures (i.e., a focused protection strategy).

And it’s highly doubtful that lockdowns were “respectful of human dignity and subject to review”, given that they initially proscribed all political gatherings and public demonstrations without exception – a measure unprecedented in British history.

Hoar suggests that, “were they challenged by judicial review”, the measures should be “disapplied if necessary”. (Recall that he was writing back in April of last year). Incidentally, a longer and more detailed version of his article is available here.

Another figure from the legal community to argue for the illegality of the UK’s lockdowns is Lord Sumption, the former Supreme Court Justice. In a lecture delivered to the Cambridge Law Faculty in October 2020, he claimed that lockdown measures were without legal basis, and described the U.K.’s response as “a monument of collective hysteria and government folly”.

As readers may be aware, there was in fact a major legal challenge to the U.K.’s lockdowns, brought by the entrepreneur Simon Dolan (and funded to the tune of £427,000). The challenge sought a judicial review of the lockdown measures. Unfortunately, it proved unsuccessful.

I’ve been told by people with legal expertise that mounting another challenge would be difficult, given the adverse judgement in the case brought by Dolan. It’s therefore unlikely the Government will be liable for claims from individuals and businesses who’ve suffered due to lockdown.

Nonetheless, it’s worth noting that legal bodies in each of the following countries have found at least some aspect of the lockdown policy illegal: France, Belgium, the Netherlands, Germany, Austria, Spain, Finland, Czechia, Scotland, Slovakia, Australia, New Zealand, South Africa and the United States.

So while the High Court in London did reject Dolan’s case against the Government, lockdown opponents have won important victories in a number of countries.

And given that the evidence against lockdown has only increased since the judgement in Dolan’s case, lockdown opponents will have plenty of ammunition if any future Government decides to lock down in response to a similar virus.