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The latest lockdown raises big questions about the law, liberty and how government can curtail our freedom

Since March 2020, healthy, working-age human beings around the world have been forced to endure numerous government lockdowns and other restrictions on everyday rights and freedoms which people in democratic societies used to enjoy before the global pandemic known as COVID-19, which engulfed the world in the first quarter of 2020. COVID-19 is, of course, a global problem in need of a co-ordinated, global solution. However, should the UK, as a beacon of established, sound governance and libertarian values, not be leading the way by example?

Government-imposed restrictions have altered most people’s way of life with little or no individual autonomy left unscathed. Politicians are currently debating the apparent need for stricter policing of lockdown rules.

It is no longer possible to enjoy even a socially-distanced cup of coffee with a friend (or indeed a random stranger) in a public park without attracting police interest. Families are being kept apart by lockdown restrictions, people are dying in hospitals alone without loved ones being able to say goodbye, weddings have had to be postponed and attendance at funerals is restricted to a small number of people (often smaller than the number of family members of the deceased). ‘Cyber Street’ and Amazon delivery vans have largely replaced the High Street for shoppers.

Unemployment and suicide rates in the UK have soared since the beginning of the first national lockdown in March 2020. Despite the UK Government’s furlough scheme, businesses and individuals have faced – and continue to face – significant financial hardship as a direct consequence of these restrictions. Abuse of the various furlough schemes is rising, with limited ability to police and address such abuse.

COVID-19 continues to cause chaos and economic hardship in most parts of the world. At the time of writing, the UK is in the second week of its third national lockdown without an end date announced by the Government. The economic loss caused by the various national lockdowns is frightening. Jobs have been lost, businesses have shrunk or even closed down; even working from home has led to some estimates suggesting a 20% drop in productivity across many sectors (except the technology sector which continues to thrive). The UK Government is yet to publish a cost/benefit analysis of the various national lockdowns.

On 15th January 2021, the Supreme Court gave judgment in Arch Insurance (UK) Ltd (Appellant) v. Financial Conduct Authority and Others (Respondents) [2021] UKSC 1, a business interruption ‘leapfrog’ appeal (avoiding the Court of Appeal) brought by six insurers – Hiscox, QBE, Arch, Argenta Syndicate Management, MS Amlin and RSA – against the ruling of the High Court in Financial Conduct Authority v. Arch Insurance (U.K.) Ltd. and Others [2020] EWHC 2448 (Comm) at the end of last year, a test case about business interruption clauses in the context of COVID-19 restrictions.

The High Court had found that insurance coverage was available under many, but not all, of the 21 non-damage business interruption clauses considered by the Court. The Supreme Court dismissed the appeal by the insurers, ruling that insurers must pay for business interruption losses incurred as a consequence of COVID-19 restrictions where the policies in question cover business interruption. The Supreme Court’s ruling is likely to have an effect on approximately 700 types of policies, 60 insurers, 370,000 policy-holders and billions of pounds in claims.

The digital (or transhuman) age has many advantages which, inter alia, conveniently enable certain aspects of pre-pandemic life to continue during lockdowns (for those with access to and the ability to operate technology). Zoom/Microsoft Teams/Blue Jeans communications, online banking and shopping are examples. These advantages are not costless in terms of the experience of being human. Human beings are inherently social. Twitter, Facebook and other social media platforms are no substitute for human interaction – particularly given that the privilege of using these platforms can be unceremoniously taken away from an individual at a time and in the manner of the company’s choosing. Online learning is not comparable to teaching in traditional settings where ideas develop and minds are inspired. Digital life is not life.

Access to technology is not free, which continues to expose and aggravate socio-economic imbalances. The apparent cancellation of GCSE and A-Level examinations this summer is likely to have a profound impact on the individuals affected by these decisions. The same is true for the absence of opportunities and the general ‘pause’ imposed on young people (or indeed people of any age) who had made plans or had hoped to join the workforce or any other endeavour in 2020 or indeed 2021. Our working and socialising years are finite. Two years effectively removed from a nation’s economic and social life are likely to leave serious scarring not just on a nation’s economy, but also its identity, which will need to be addressed by future generations (in ways which may not be apparent now). Is seeking out an existence in lockdown preferable to taking the risk of losing a fulfilling life to COVID-19?

Do we need to revisit the law which protects individual liberty rather than restrict it, without a compelling case based on evidence, curtailing in the process the normal freedoms of the individual by the State in a COVID-19 brave, new world? Do we need tighter constitutional checks? Should the Government seek to identify risks to those within its jurisdiction, inform people of the risks and leave it to the people to make responsible choices about how those risks affect their way of life, rights and freedoms or prescribe the length of daily exercise and the radius from home within which such exercise must take place? This would enable limited government resources to be channelled to those who need them most in ways more conducive to protecting the dignity of the population.

While people who are vulnerable are no doubt in need of adequate protection and support, is it proportionate and necessary in a democratic society to lock down most of the economy and infringe individual rights and freedoms to the extent we are currently experiencing (again!)?

Edite Ligere

Edite Ligere is Politeia’s Director, a barrister at 1 Crown Office Row Chambers and an advisor at Galileo Global Advisors in New York. Her special interests include artificial intelligence, insurance, human rights and cyber security. She was appointed to the Bar Council of England and Wales in 2020. She has written for the OECD on 'Insurance: can systemic risk get any more systemic post-COVID–19? '.

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