Anti-lockdown libertarians distract attention from the true human rights challenge

A careful balancing exercise is needed to protect competing rights when fighting Covid-19

August 07, 2020
A colourful shop window asks passers-by to stay at home, protect the NHS, save lives during the height of lockdown. Photo: Kieran Cleeves/EMPICS Entertainment
A colourful shop window asks passers-by to stay at home, protect the NHS, save lives during the height of lockdown. Photo: Kieran Cleeves/EMPICS Entertainment

As fears of a second wave in Europe intensify, and we are confronted, in the UK, with local lockdowns that restrict freedom of movement and association for millions of fellow citizens (such as in Leicester, Manchester and now Preston), it is vital to forensically interrogate the moral, legal and practical foundations of our response to Covid-19. Establishing that this amounts to legitimate, proportionate and effective restrictions of our basic freedoms is indispensable to carrying the wider public along in the fight that we have ahead of us.

The libertarian approach to this issue gravitates around individual choice to freely move and associate with others, focussing on the fact that the risk may be minimal for some groups of people—those of younger age or in better physical condition, for instance. It does not pay sufficient regard to persons with disabilities, those in care homes, our parents and grandparents—in short, those whose lives we would put at risk by exercising our freedom unhindered.

The second step in the flawed logical process of the libertarian is to demonise the “nanny state” for the restrictions it imposes, which is ultimately followed by a demand for a “free market for pandemic decisions,” based on the fiction that the risk of Covid-19 infection and death has been blown out of proportion. Writing for Prospect, Thomas Poole was right to characterise this as “recklessly cavalier.” His comments related to the anti-lockdown, laissez-faire approach that the former Supreme Court justice and public intellectual Jonathan Sumption has passionately propagated since the early days of the pandemic.

The libertarian objection

Sumption’s views encapsulate the anti-lockdown libertarian position that more broadly fills the pages of right-wing broadsheets and blogs. These stipulate that the “balance should come down on the side of allowing the maximum liberty rather than the minimum,” that “the most vulnerable should be shielded” and the less vulnerable given sufficient information “and then left to make decisions for themselves.” Further, the lockdown was “disproportionate and had served its purpose long before it was eased.”

Sumption’s own critique of the lockdown is multi-faceted, blending legal, political and public health analysis. This is a mild epidemic for people with no underlying conditions, he points out. “The overwhelming majority” of the victims of Covid-19 “would have died a bit later but not much later anyway.” In a recent piece for this magazine, he claimed that the only coherent position is to “not lock down at all”—or “locking down without limit,” an extreme position that he naturally rejects. And “that is before we even get to the economic impact,” he points out as a footnote.

For all its sophistication, the libertarian analysis draws on a monolithic understanding of human rights. It gives absolute priority to the right to liberty, paying very little attention to competing values that we must include in the balancing exercise that is intrinsic to delineating the protective scope of—and recognising the acceptable limitations to—individual rights.

The right to life

Striking in its absence from anti-lockdown arguments is a willingness to consider the state’s positive duty to protect the right to life, in line with Article 2 of the European Convention on Human Rights (which applies in the UK through the Human Rights Act). This applies—as Queen Mary’s Merris Amos reminds us—where it can be established that the public authority knew or ought to have known of the existence of a real and immediate risk to life and failed to take measures within the scope of its powers which, judged reasonably, might have been expected to avoid that risk. Amos goes on to explain that “the risk to life [from Covid-19 was] obvious,” and that the government had knowledge of the risk, and yet “there was unnecessary delay including an initial strategy of herd immunity and shielding the vulnerable.” She goes so far as to pose the question of whether the fact that the lockdown in the UK was “not as strict as in other states” could in itself trigger liability on the basis of Article 2 of the convention.

In a similar vein, Birmingham University’s Natasa Mavronicola takes as her starting point that “in the context of this pandemic, it is certainly tenable that States bear positive obligations to take certain ‘lockdown’ measures,” insisting that “these are not exhaustive of the State’s positive duties to secure ‘practical and effective’ protection”; other general measures are also required, including “adequate targeted protection (such as protective equipment) for persons who are put in harm’s way,” as well as “effective disaster-management planning, bolstering (emergency) healthcare provision, and securing effective access, on a non-discriminatory basis, to essential goods and services.” The legal reasoning here is worlds apart from the one-dimensional anti-lockdown libertarian critique.

The “utilitarian temptation”

If we correlate the jurisprudence on the duty to protect the right to life with the right to human dignity, we must categorically reject—in the words of Jürgen Habermas—the “utilitarian temptation” that informs the anti-lockdown critique; “fundamental rights prohibit state institutions from engaging with decision-making that accommodates the death of human beings,” replied Habermas, when asked how we address the dire socio-economic impact of lockdowns. “I do not accept that it is the cardinal duty of governments to save lives if by that is meant at the expense of any other values whatever,” said Sumption in a Prospectdebate with Joshua Rozenberg QC (hon).

Taking his cue from the jurisprudence of the German Constitutional Court, Doughty Street’s Jonathan Cooper has, in the same vein as Habermas, underlined the need for UK law to have “a firmer underpinning from the right to human dignity,” contrasting a human rights-based response in Europe and the utilitarian approach the UK government had originally opted for (with the “herd immunity” ideology and the wider approach that epitomised it, in the critical period preceding the decision to lock down). This is again diametrically opposed to the anti-lockdown narrative that has the right to liberty operating in isolation from other fundamental rights, including the right to life and human dignity.

What about equality?

Equally remarkable, in its absence from the anti-lockdown critique, is an exploration of the unequal burdens that we carry as citizens in the fight against Covid-19. The former Sorbonne and Collège de France law professor and eminent intellectual, Mireille Delmas-Marty, has spoken of “strong inequality” between those whom “we simply ask to stay at home” and “those who are more seriously exposed [to risks],” the staff working in the national health system, care home and domestic workers, prison staff, the police and others; “those from whom we demand important efforts, without always guaranteeing them the required protection.” The anti-lockdown narrative distracts attention from these issues, which we must urgently investigate, all the more so in the UK, where there is evidence that people from BAME backgrounds are more likely to be over-exposed to and under-protected from Covid-19.

The UK and its neighbours

It is also instructive to compare the anti-lockdown ideology with the legal approaches adopted in foreign countries. We can set aside here the UK’s disastrous death toll (which speaks for itself about the merits of a laissez-faire approach that the UK flirted with for far too long) and simply focus on how ideological opposition to lockdown and social distancing seems entirely out of tune with legislation and practice in the vast majority of our European neighbours and further afield. In the Prospect debate with Rozenberg, Sumption dismisses a seeming European consensus around the need for lockdowns and social distancing: “each government in turn looked to others to do the same thing in order to give them political cover,” he explains. It is difficult to know exactly how to respond to this argument, simply because it is outlandish to think that modern European states, and the European Union for that matter, would follow such “a herd instinct,” when the protection of hundreds of thousands of their citizens and survival of their economies was at stake. The complicated relations between EU member states, negotiating over all aspects of life in the EU, in fact suggests they would not behave like this. It is much more intuitive to argue that European states took a scientific evidence-based approach, seeing lockdown and social distancing as the only way out of the pandemic impasse; successes in parts of Europe—Germany, Greece, the Scandinavian countries, but not necessarily Sweden, which was the outlier in all this and a ubiquitous point of reference for anti-lockdown libertarians—suggest these countries (and there are other examples in Europe) were right to act swiftly and with determination.

Human rights front and centre

The UN High Commissioner for Human Rights Michelle Bachelet has called attention to the need for governments to undertake a range of additional actions to reduce the potentially negative impact of lockdown measures. There is no doubt that human rights must be front and centre of state responses to Covid-19; the focus of this article has been on the right to life and human dignity, but the right not to be discriminated against, the right to privacy, the right to a fair trial, the right to access information, and the rule of law also require urgent attention. The “‘explosion’ of virus-related human rights litigation around the world” proves the point, and so does the work of legal practitioners, NGO experts and journalists in the UK, who have been able to stop important human rights violations in their tracks or even reverse their outcomes when these had already been committed. The decision of the Crown Prosecution Service (CPS) to review all convictions under coronavirus laws—the first time the CPS has ever launched a review of every charge under a specific piece of legislation, bringing to light that all 44 cases under the Coronavirus Act had been incorrectly charged—was the direct result of such cross-disciplinary work between legal experts and journalists who were alert to how vitally important it is to strike the correct balance between fighting Covid-19 and protecting individual rights.

Dressed up in absolutist terms, the anti-lockdown, anti-social distancing critique distracts attention from the need to carefully balance protecting public health, the right to life and human dignity, with the right to liberty and individual autonomy. It must be resisted.