The Untapped Potential of Proportionality in a Pandemic in Aurélien Antoine, Andrew Blick, Géraldine Gadbin-George, Elizabeth Gibson-Morgan (eds), La France et le Royaume-Uni à l'Épreuve de la Pandémie de Covid-19 (Mare et Martin, Paris, 2022)

Abstract

From March 2020 the coronavirus pandemic led to a series of restrictive UK lockdown measures that severely impacted upon a range of human rights. This chapter identifies and analyses shortcomings in the proportionality review of COVID-era restrictions undertaken by English judges; even allowing for the sensitive context, such reviews were unduly deferential and insufficiently searching. It starts by providing an account of proportionality as a doctrine, drawing out the variable intensity of proportionality review and the leeway it affords decision-makers. Parts 2 and 3 identify and critically analyse two highly influential factors that have dominated English judicial approaches to COVID-19 litigation and resulted in a very high degree of latitude afforded to government. First, the democratic legitimacy of the decision-maker and the political complexity of the issue were deployed as barriers to dismiss legal challenges and avoid meaningful engagement with lockdown policy. In doing so, the judiciary shifted the responsibility for checking COVID restrictions to Parliament whilst disregarding clear shortcomings. Second, institutional competence or the expertise of the decision-maker also influenced strong judicial deference to the government’s lockdown policy, despite the scientific uncertainties surrounding the pandemic. This problematically enabled crucial COVID-era policy-making to remain opaque and unscrutinised. Part 4 considers select alternative approaches adopted in other jurisdictions where proportionality review by the courts undertook a more searching review of COVID-era measures. It particularly focuses on the Scottish decision in Philip which undertook a more thorough review and looked behind the public face of the Scottish government’s lockdown policy-making. It thus provides an illuminating contrast that highlights the scrutinising potential of proportionality that remained untapped by more cautious English judges.

Keywords: Emergency, review, pandemic

JEL Classification: K10, K14, K33, K19, K30, K33, K42, N40