‘The lockdown has caused a humanitarian tragedy’

Barrister Francis Hoar explains why the lockdown may have been unlawful.

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The lockdown was one of the most restrictive measures ever introduced since Britain became a democracy. It was originally justified on the basis of ‘flattening the curve’ to protect the NHS. But since this was achieved some time ago, new reasons are always produced to keep us at home or prevent people from carrying out normal activities. Many of our legal rights are being infringed as a result. A legal challenge to the lockdown was launched by businessman Simon Dolan, who sought a judicial review of the government’s policies. Francis Hoar is a barrister who worked on his team. spiked caught up with him to ask why he thinks the lockdown was unlawful, and what damage he feels it has done.

spiked: In what ways was the lockdown unlawful?

Francis Hoar: It was arguably unlawful for three reasons. Firstly, the measures were not within the parameters of the 1984 Public Health Act. That act does not grant powers to lock down the country, impose restrictions on when people can leave their houses, go to church, meet others or protest. Secondly, the secretary of state for health, Matt Hancock, had ‘fettered his discretion’ in relation to how long the measures would last – that is to say, he provided five tests which had to be complied with, all of which related to the virus, before the regulations could be changed. This was unlawful because it prevented him from looking at all factors when making his decision.

Finally, the measures were arguably disproportionate breaches of rights protected in the European Convention on Human Rights (ECHR), including Article Five, the right to liberty (impacted by regulations about when people could leave the house); Article Eight, the right to family and private lives; Article Nine, freedom of religious belief and expression; Article 11, the right to freedom of assembly and association; and Article Two, which relates to the right to education – impacted by the closure of schools.

spiked: In what ways were the measures disproportionate?

Hoar: Part of the question about proportionality relates to the number of Covid-19 deaths. Public Health England has admitted that many people listed as having died of coronavirus may actually have died due to something else. We know that the efficacy of testing is dubious. In the last few days an academic paper has been published which suggests that the virus can stay within the body for 10 weeks after a person is infectious – if somebody is tested for the virus now and tests positive, they could have had it at any point in the last 10 weeks. That is obviously significant, because the tests that are done today, and the case numbers that were used by the government to justify introducing severe restrictions on the people of Leicester for example, are affected by numbers that may include those who had the virus 10 weeks ago. It’s quite possible that large numbers of these individuals who tested positive do not have the virus or at least are not infectious with the virus, and so do not represent new cases. That’s a very concerning part of the political process, because those figures are used to calculate the R number (the rate of increase in the virus), which the government bases its measures on. If there’s so much inaccuracy, we have to ask if measures like those in Leicester are justified.

We also know that deaths peaked on 8 April. Chris Whitty admitted in evidence given to the House of Commons health committee that it was possible that the lockdown had had no effect on the R number going below one – the point at which infections decrease rather than increase. The average time from infection to death is approximately 23 days. This suggests that the R rate went below one around 16 March, which was well before the lockdown was introduced, and well before schools were closed. It was on that day that the famous Imperial College modelling was published and released to the public by the prime minister.

We have also known since late mid-April that hospital capacity wasn’t going to be overwhelmed. The only justification for the lockdown originally given, before those five tests the secretary of state introduced, was to prevent the NHS from being overwhelmed. Once it was realised that these measures were not necessary to prevent the NHS being overwhelmed, there remained no justification for the lockdown on the original terms on which it was enacted. Since April, the government has been producing new reasons to justify their policies. Whether or not there is a problem with it legally, it does not provide sufficient justification for those policies when we know the enormous harms they have caused.

These harms were known to the government from an early stage. A government paper produced in April was recently published in the Telegraph, which forecast 200,000 deaths as a result of the closure of NHS facilities and the conditions of the lockdown. There is evidence to suggest the lockdown did not save many lives – in particular, research done at Bristol University and the remarkably similar trajectory Sweden had to the UK despite not having a strict lockdown are examples. We are therefore talking about a situation where vastly more lives were lost than saved. The lockdown has caused a humanitarian tragedy. And that is before we even think about the effects on education, on freedoms and on the economy.

spiked: Has it been harmful in a democratic sense, too?

Hoar: Irrespective of the lawfulness of its use of the 1984 Act, what is notable is that the government has used what’s called the Emergency Procedure under that act to introduce every piece of legislation that has restricted people’s movements, economic activity and so on. These have typically been introduced to parliament one working day before they came into force. None of them received any scrutiny by parliament before they were enacted. None of them were debated in detail in the media before they were passed – they could not be, because they were not published until a few hours beforehand. What scrutiny there has been came weeks later, often since there have been subsequent amendments to those regulations. The first time that parliament debated these changes was in late April, and that was around six weeks after they had been introduced. The Emergency Procedure allows for the regulations to be imposed four weeks before they are debated, but that is not four ordinary weeks – it is four weeks when the Houses of Parliament are sitting. They were not sitting in late March and April. Consequently, there was no obligation to put the measures before parliament and have any scrutiny for many, many weeks and potentially indefinitely. That’s a very real democratic concern.

Another democratic concern is that the opposition, whose duty it is to provide scrutiny for government measures, has failed to oppose the government’s use of the emergency legislation, at least for the first two months. There was no opposition to the principle of the restrictions. Indeed, the only opposition one heard from Labour and Liberal Democrats was calling for tougher restrictions, earlier restrictions and longer-lasting restrictions. There was almost no opposition on the Conservative benches. There are one or two honourable exceptions to that, including Steve Baker MP, but apart from that, almost none.

That is particularly significant because we were in a process where the government had very considerable control over the news stories. It introduced daily press conferences at peak times, knowing that the broadcast media was likely to broadcast them live. The broadcast media then were dominated by these press conferences, which were played out to a public that was prevented from leaving home by the government, and so watched these conferences in enormous numbers. Those press conferences provided nothing but a fear narrative that was focused uniquely on the virus and provided one news story. The media did the government’s bidding by following that narrative entirely, failing to consider alternative scientific perspectives, failing to consider other elements that are affected by these measures that are not the virus – that is to say the economy, public health in general, suicides, cancer patients, and cancelled important operations.

We know from the SAGE minutes, which were only produced after they had been requested in Simon Dolan’s legal challenge, that there was a specific intention to increase fear, to increase the perception of fear among people who were considered not to have had Covid yet, and to make people afraid not only for other people but for themselves.

spiked: How much opposition to the lockdown has there been from within the legal profession?

Hoar: There have been a number of barristers who have criticised the procedure by which legislation has been produced – the lack of democratic scrutiny and other elements. But it is right to say that there have been extremely few lawyers who have criticised the impact of these regulations on principle. And that is surprising because they are such obvious and incredibly serious depravations of very important and serious rights.

The response is that Article Two of the ECHR protects the right to life, and that justifies lockdown. Some lawyers no doubt agree with that. But the traditional understanding of Article Two is that it obliges the government to inform individuals of risks to their life, to protect against risks caused by government actions and to provide adequate investigation and redress against loss of life caused by the state. There isn’t any case law to suggest that the government has positive obligations to withdraw rights when there is a natural event such as a virus. In contrast, most of the rights protected by the ECHR have a venerable history in English law. All these very ancient rights have been removed by executive fiat under an act of parliament, without the need for parliamentary scrutiny.

Francis Hoar was talking to Paddy Hannam.

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Comments

Peter Gardner

6th August 2020 at 6:08 am

Clutching at straws. At best an exercise in sophistry, which does take a degree of cleverness. Full of logical discontinuities. For instance:
“Secondly, the secretary of state for health, Matt Hancock, had ‘fettered his discretion’ in relation to how long the measures would last – that is to say, he provided five tests which had to be complied with, all of which related to the virus, before the regulations could be changed. This was unlawful because it prevented him from looking at all factors when making his decision.”
A person who legitimately makes a rule can also introduce new additional rules or change the introduced rules. that person has not ‘fettered his discretion’. Pure bunkum.

John Glasspool

4th August 2020 at 6:49 pm

And, AT THE MOMENT, our all cause mortality is lower than normal at this time of year which makes one wonder if the societal changes that have been forced upon us have hitherto unknown health benefits. Some research needed, but note the absence of a seasonal Flu epidemic in Australia.

Peter Gardner

6th August 2020 at 6:03 am

It’s lower than normal because lock-down works to reduce the spread of ALL infectious diseases.

John Glasspool

4th August 2020 at 6:44 pm

“It was originally justified on the basis of ‘flattening the curve’ to protect the NHS.” Not exactly. The NHS doesn’t need to be protected per se, it’s to protect it enough to be able to cope with large numbers of people needing help with Covid; quite a lot of whom need ventilation. And the figures show that lockdown has had a good effect. And to those who say this isn’t true, just remember that a lot of intelligent people started to self isolate and/or take measures 2 weeks BEFORE the government imposed its model.
If you don’t like our way of doing things; if you have the money, go to Florida.

James Knight

3rd August 2020 at 1:29 pm

Nobody is putting the case for freedom over fear.

James Knight

3rd August 2020 at 8:43 am

I expect a shocking discovery will emerge from this: the ECHR does not protect either life or liberty. Like a verbal contract, not worth the paper it is written on.

Adamsson 66

2nd August 2020 at 9:51 pm

When will people learn laws don’t matter anymore.
This is a dictatorship.

KATHLEEN CARR

2nd August 2020 at 9:12 pm

Don’t worry if Covid Lockdown #1 didn’t get you , you still have a chance to die in Covid Lockdown#2 as Boris wants to lockdown everyone over the age of 50 (which includes him) to avoid a blanket second lockdown.Covid could be an acronymn for Country of Victoria is Dead as this virus ties in a bit too neatly for demands to obliterate our past ( which only the over-fifties remember ).

Vivian Darkbloom

2nd August 2020 at 11:12 pm

Well, for sure Kathleen, nicely put. I must say that COVID can also mean Certification Of Vaccination IDentification. We should be very worried about that, and I’m not even an anti-vaxxer as such. I simply dispute the dangerous idea that a vaccine can be made functional in less than a year.

Peter Gardner

6th August 2020 at 6:15 am

Oh you mean like Sweden did?

John Reic

2nd August 2020 at 6:10 pm

There’s never been a law to see stuff Ring fenced for white kids

And the person angela rayner who spoke about it was called racist by BaME labour
Both the equality act or the Human rights act should be scrapped
basically holds the white working class in contempt

Didnt the equality act say- Discrimination is equality ,which is the most Orwellian

It’s still true block votes from cliques get preferred candidates in place tinker then have a run of the mill in who gets to control( run the party)

libertarians of telling people what they can say nudge, ugar tax.Blair banned acohol legislation adverts -working class

Michael Morgan

1st August 2020 at 8:16 am

It’s a virus and we need to learn out to live with it, not be afraid. Boris has been a great disappointment and there are many that think the same way. Sweden has had no lockdown measures, jut social distancing common sense. Nothing seems to be said of them. Admittedly they have a higher death per capita than their neighbours but lower than us or a great deal of Europe. Would you not expect the Swedes to be stepping over dead bodies in the streets if they have it so wrong?

John Pretty

1st August 2020 at 11:22 am

But the numbers of dead are still small in Sweden, as epidemics go.

Ness Immersion

3rd August 2020 at 12:02 am

Actually the numbers in Sweden are lower than it’s neighbours
“Conclusion 2: In terms of all-cause mortality, Sweden is seeing a better outcome for 2019/2020 than Finland and Scotland, and is very close to Denmark. ”
http://inproportion2.talkigy.com/nordic_comparison_4jul.html

Travis Henderson

5th August 2020 at 8:37 am

Sweden has higher mortality than its neighbours because Sweden has a higher proportion of BAME. We know that BAME people unfortunately have higher mortality. One could say that the virus is racist, but I think a more likely reason is that BAME populations use lower social distances in everyday life.

Peter Gardner

6th August 2020 at 6:21 am

That is completely untrue about Sweden. The Smittskyddslagen (the Communicable Diseases Act) regulates the response to outbreaks and threats of outbreaks of contagious diseases. It gave authorities powers as extreme as locking down city blocks before the SARS-CoV-2 was even heard of. Each municipality has a Crisis Management Committee to safeguard against international and other threats to public health and well-being. The law also imposes mandatory self-reporting as well as extensive powers on testing, quarantining sea and airports etc. to prevent the spread of infectious diseases. Not much in the way of additional powers were required. However on April 19 the Government took furthers powers to control the outbreak.
Breaches of rules on social distancing were punishable by heavy fines or imprisonment. Bars and restaurants that failed to observe the regulations on tables being 1.5m apart and no standing by patrons were closed without compensation.

Vivian Darkbloom

31st July 2020 at 10:48 pm

Anyway. Protests around the UK tomorrow, August 1st 2020.

London, Hyde Park, Speakers Corner, 1:00

StandUpX @StandUpX2

Keep Britain Free #KBF

Simon Dolan @simondolan

Vivian Darkbloom

31st July 2020 at 6:36 pm

“…the opposition, whose duty it is to provide scrutiny for government measures, has failed to oppose the government’s use of the emergency legislation…”

Anyone had a good look at Sir Kier Starmer during this crisis? The man is absolutely petrified; you can see it in his eyes. He’s like a scared rabbit. Now, I don’t know what he knows, maybe he’s just confused, but I detect real fear. As Francis Hoar says, the opposition is merely calling for a harsher and more authoritarian response. The situation has become dangerously conformist and politicised with simplistic binaries applied to smear dissidents as being Brexit or Trump supporters, “far-right”, etc. The thing that makes me laugh sardonically is that liberal progressives are essentially supporting the Tories whilst slagging them for not being fascist enough. We must all obey without question. This meme cracks me up: “Just wear the damn mask”. You see it everywhere but very few question where it originated. Well, like so many other phrases which are taken up by the fearful I naturally assume it comes straight from government bureaucracy and imbedded think tanks; my money is on the Behavioural Insights Team. I suppose we should be proud that Britain is a world leader in the behavioural sciences, a fact which deserves a slow clap at least.

No, forget Parliament; the opposition is elsewhere. Simon Dolan is one such valiant soul and there are many others, most without the public voice that Simon’s position and money afford him. Francis Hoar is another who can hold his head up high. We are being subjected to the most extraordinary psychological experiment ever attempted on such a scale.

NEIL DATSON

31st July 2020 at 4:50 pm

Good. Only hope the challenge succeeds. The performance of the administration, the acquiescence of backbench MPs, the failure of the opposition and the conduct of the media have all been an absolute disgrace. None of them merit the people’s respect or support.

Warren Alexander

31st July 2020 at 3:59 pm

If I didn’t know better or I believed in conspiracy theories, I might come to the conclusion that all this is about rehearsing how to subdue the population prior to a coup.

Linda Payne

31st July 2020 at 3:56 pm

There needs to be organsied resistence to these restrictions on our lives; we must never accept that arbitary lockdowns as being the new normal; if you value freedoms look how easy it has been for those to be taken away. Right at the start of all this I warned (along with others on this platform) that with the coronavirus bill and the incessant focus on protecting the NHS would be a severe blow to our civil liberties because the focus would be on a ‘second wave’ then a third then a fourth so it goes on. The powers the govt have given themselves over our lives need to abolished, but they won’t be unless forced

Gareth Edward KING

31st July 2020 at 2:57 pm

And so it goes on: the government publicised last night there was going to be a partial lockdown involving four million people in the NW; these restrictions involve when, where and how many people can be in each other’s houses-that one’s personal space the last time I looked-it’s been enacted to coincide with the Eied festivities apparently without explicitly mentioning it. Andy Burnham, the Manchester mayor, basically has had an ‘and about time’ attitude. There is no reason to invoke these draconian measures, but as has been discussed in this article, it doesn’t seem to matter in any case as the government knows it can ‘get away with it’. Parliament is barely open wherein such drastic issues should’ve been discussed and debated not decreed. People should be out on the streets and refusing to be co-opted into obeying this diktat. ‘Give an inch and they take a yard’.

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