Introduction

As emergency powers impact upon the most fundamental values in a legal order, this chapter and Chapter Three (Pandemics and Human Rights: Derogable Rights) explore the effect that pandemic emergency powers can have on human rights norms. Focus is not simply on the states that have officially declared states of emergency or derogated from international human rights treaties, as there is no necessary correlation between the impact that these measures have on human rights and whether a state has derogated or not.

While this is not the place for an in-depth discussion of the different theories of human rights, some articulation is, nevertheless, necessary in order to establish a framework against which pandemic emergency powers can be appraised. Here, I argue that human rights work best when they are understood as having an emancipatory potential – when they are viewed as requiring the state not just to refrain from interfering with a person's life, but also to take positive steps to empower a person to take control of their life. In contrast, a libertarian conception of rights as simply injuncting the state from acting would be incapable of effecting an adequate response to the pandemic, as evidenced by protesters refusing to wear masks that can impede the spread of the virus.

This ‘emancipatory potential’ of human rights also shapes who is empowered to make decisions about rights in a state. On this point, I argue that all branches of government – legislature, executive and judiciary – must take this this obligation seriously. In this way, constitutional norms are best protected when this ‘culture of justification’ is established. These two concepts – the emancipatory potential of human rights; and a culture of justification – shape my analysis of the impact of pandemic responses on these rights.

This chapter focuses on non-derogable rights – rights whose protection cannot be affected by the declaration of a de jure state of emergency. As I will show, these rights are particularly important in a pandemic, and place significant duties on the state to protect and vindicate these rights. This further demonstrates that, even with a de jure declared state of emergency, robust human rights protection can – and should – be in place.

It was mid-March 2020 in Birmingham in the UK and everything was normal. Friends met friends for coffee, embracing each other with a warmth, as friends do. People side-stepped the homeless person on the pavement outside the train station, avoiding eye contact as they hurried on. Shops were full. Restaurants were full. Everything was normal. It was one of the most surreal experiences of my life.

As an Irish person living in the UK, I consume media from both countries. In mid-March 2020, Ireland was already in lockdown in response to the COVID-19 pandemic; meanwhile in the UK, the government seemed considerably more reluctant to close things down. It was like living in two parallel universes, where Irish media coverage hunkered down, bracing itself for the oncoming storm; at the same time, the UK kept calm and carried on, debating the merits of ‘herd immunity’. Eventually, the UK followed suit, although it would ultimately end up with the highest death toll in Europe.

This is a book about the COVID-19 pandemic. It is a reflection on some of the key issues raised by this pandemic. It explores how law can accommodate necessary responses to such an extreme crisis but also, how law can – and should – control these responses too.

Chapter One (The Pandemic State of Emergency) outlines a theory of states of emergency, demonstrating that these provisions in constitutions and international treaties are designed to quarantine exceptional powers to exceptional situations. I show how pandemics are, very much, a threat that can be accommodated by states of emergency and further, that this response was taken by some states but not by others during the COVID-19 pandemic.

Chapter Two (Pandemics and Human Rights: Non-Derogable Rights) then discusses the human rights implications of state responses to pandemics, articulating a theory of human rights that best encapsulates what I term their ‘emancipatory potential’ – by this I mean human rights’ potential to not simply prevent the state or others from encroaching upon a person's freedom but also to empower a person and take control of one's life.

Introduction

While a declaration of a state of emergency should not affect non-derogable rights, not all rights fall into this category. Rights that can be derogated from allow a state to enact measures not ordinarily permissible under the parameters of the treaty in question. The same is true of constitutional emergency powers that expressly label rights as derogable or not non-derogable. However, these rights can also be interfered with by the state without the declaration of an emergency. This raises the question of whether pandemic powers should be accommodated under the ordinary or normal grounds of legitimate interference built into these rights, or whether a state of emergency should be declared in order to enact these measures. Again, I want to emphasize what ought to happen, rather than what is likely to happen. Ultimately, I contend that human rights overall are better protected when emergency powers are quarantined to exceptional situations, and the best approach to do this is through a de jure declaration of a state of emergency.

To demonstrate this, this chapter looks at the case law of the ECtHR as an illustrative example of the challenges that so-called ‘lockdowns’ pose to derogable rights. First, a brief outline of the concept of ‘lockdown’ is discussed. Then, I will focus on the impact that lockdown has on what are termed ‘limited rights’ – rights that can be interfered with only in discrete circumstances. Emphasis is put on Article 5 ECHR – the right to liberty – and whether this right is best protected with or without derogation. Following this, I then look at qualified rights – rights that can be interfered with normally under broadly defined circumstances. Again, a key theme is the quarantining effects of a de jure declared emergency, Moreover, while this chapter focuses on the EHCR; the similarities between this Convention and other international human rights treaties means that many of the arguments in this chapter can be mapped on to other states that are not a party to the Convention. Likewise, the questions raised before the ECHR on these issues are similar to those raised before domestic courts concerning constitutional interpretation.

Introduction

On 12 March 2020, the World Health Organization (WHO) declared ‘coronavirus disease’ (COVID-19) a pandemic. COVID-19 is caused by the novel coronavirus SARS-CoV-2 and induces the primary symptoms of a fever, dry cough and tiredness. It can also include other symptoms, such as aches and pains, a sore throat, conjunctivitis and headaches, to name but a few. While most cases of COVID-19 are considered to be a ‘mild to moderate respiratory illness’ and patients will recover without requiring special treatment, in certain instances, notably among the elderly and those with underlying health conditions, COVID-19 can develop into a serious illness, triggering conditions like pneumonia which require specialist hospital treatment. At its most extreme, it can kill. At the time of writing, in June 2020, COVID-19 has caused the deaths of approximately 500,000 people worldwide. This figure should be viewed with caution, however, as not every death caused by COVID-19 will be attributed as such.

The scale of the COVID-19 pandemic triggered many countries to declare a state of emergency. Indeed, as we shall see, there is a strong case to be made that in recent decades, this is the closest we have come to an ‘ideal’ state of emergency – a perfect storm that legal states of emergency were designed to confront. Yet despite this, not every country responded in this way or enacted powers expressly labelled as ‘emergency powers’. The purpose of this chapter is to explore why this is.

I start by briefly outlining the theory behind emergency powers and the consequences that this theory has for fundamental constitutional values such as democracy, human rights and the rule of law. I then look at how pandemics can trigger emergency responses from the state, and discuss whether or not this is a good thing from a constitutionalist perspective – the idea that all state power should be exercised lawfully and in accordance with the values espoused by its constitution. This leads into a more detailed discussion of the human rights implications of pandemics in Chapter Two (Pandemics and Human Rights: Non-Derogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights), and the impact on democracy in Chapter Four (Pandemics and Democracy).

Introduction

Ideally, all states of emergency are temporary. Ideally, all states of emergency are designed to restore the status quo ante. And ideally, all emergency powers are unpalatable; as it is precisely their unpalatable nature that ensures they remain temporary. It is when these changes become acceptable – even desirable by the majority of the public – that they have the greatest potential to become permanent.

To recall from Chapter Five (The End of the Pandemic Emergency), in the context of the COVID-19 pandemic, it may seem difficult to see how some of these powers could become permanent, owing to the deeply impactful ways in which they have affected everybody's lives. However, this risk of permanent emergency powers is certainly not absent; rather, it may occur in subtly different ways.

In this chapter, I commence by looking at the phenomena that trigger emergency powers, and argue that the risk of pandemic powers becoming permanent stems not from the possibility of the virus itself being a permanent threat, but from the application of these powers beyond pandemics – a risk I highlighted in Chapter Three (Pandemics and Human Rights: Derogable Rights) and Chapter Five. This risk is compounded when emergency powers are deployed through more ‘banal’ means, such as legislation.

Following this, I discuss how some so-called emergency threats do not result in defensive measures designed to restore the status quo ante; rather, they are designed to permanently change the status quo, as this was what caused the emergency in the first instance. I then apply this framework to the postpandemic state, with a view to assessing what permanent, irrevocable changes could – and should – be on the cards. This discussion, in turn, should shape our understanding of what is perceived to be the greatest emergency threat of our time: climate change.

Finally, this chapter concludes by arguing that many of the problems seen as a result of the COVID-19 pandemic arose as the result of poor emergency preparedness. This poor preparedness failed to take into account many of the unique issues facing disparate demographic groups: for example, women, children, older people and certain ethnicities.

Introduction

As pandemics wane, states may be tempted to lift emergency measures as soon as possible. The assumption that the popularity of these measures will wane over time, as lockdown progresses and the pressure to restart economic activity increases, acts as a powerful democratic incentive in favour of a return to normalcy. This stands in stark contrast to national security emergencies such as terrorism where, in general, democratic forces tend to perpetuate emergency powers.

We have already seen the problems that this rush to normalcy may cause in the context of vulnerable parliamentarians in the UK being disenfranchised. The ‘rush to normalcy’ can also result in a spike in infections and a ‘second wave’, causing a significant threat to life and to health, raising the exact same human rights concerns discussed in Chapter Two (Pandemics and Human Rights: Non-Derogable Rights) that justified lockdown in the first instance. The end of pandemic responses and the lifting of lockdown should therefore be much more gradual than their introduction in the first place. Further, it may not necessarily be the case that this process will be linear; retrogressive steps may be needed if infections spike.

This chapter outlines some of the legal issues that may arise as a result of the lifting of lockdown. I use the distinction made in Chapter One (The Pandemic State of Emergency) between containment and mitigation phases of pandemic control, to suggest that lifting lockdowns should entail more containment than mitigation methods. However, despite being less restrictive on everybody's rights, the targeted nature of these containment measures raises its own unique human rights challenges; namely, their potential discriminatory application and their impact on people's privacy and family life. This stage may be vulnerable to ‘suspect community’ tropes being deployed by democratic governments to make decisions regarding who will be most affected by pandemic powers, with the efficacy of such measures being highly questionable. I shall look at three containment measures in particular: contact tracing apps; immunity certificates; and strict quarantines and stricter border controls.

Introduction

Chapter Two (Pandemics and Human Rights: Non-Derogable Rights) and Chapter Three (Pandemics and Human Rights: Derogable Rights) focused on the impact that pandemics can have on human rights. I argued that declaring a state of emergency would be the best way to ensure that these exceptional powers remain temporary and that their deployment would not lead the way to their future application outside a pandemic situation.

Yet the judiciary alone cannot – and should not – be the sole defender of human rights; the legislature and the executive must also take rights seriously. Furthermore, the impact of emergencies are not limited solely to human rights. To recall from Chapter One (The Pandemic State of Emergency), a key reason why the Roman Republic appointed a dictator in an emergency was because of the cumbersome constitutional checks and balances that the Republic had in place to prevent absolute power from being consolidated in a single institution.

As emergencies require swift responses, today this invariably means that the executive takes charge, with the judiciary and the legislature taking a back seat. Consequently, emergencies impact on the separation of powers, affecting how these other branches can fulfil their constitutional functions. While this is the case for all emergencies, as we shall see, pandemics raise their own unique challenges – in particular for legislatures. That stated, the case for executive supremacy during a pandemic is also considerably weaker.

The importance of legislatures

On 28 August 2019, UK Prime Minister Boris Johnson cast the die. Long before anybody had ever heard of COVID-19, Parliament was to close. It was to be ‘prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019’. This five-week prorogation was considerably longer than the usual couple of days, with many crying foul and arguing that the real motivation was not the stated reason of ‘preparing a new Queen's Speech’, but instead to frustrate Parliament's capacity to pass legislation that may prevent the UK from leaving the EU without a deal on 31 October 2019. The move sparked outrage and the almost immediate launch of court proceedings to have the prorogation declared unlawful.