Balancing Freedom and the Common Good in Human Rights Discourse: Judicial approaches to legal challenges relating to Covid-19 regulation and intervention in the UK

Abstract

The novel coronavirus pandemic has presented unprecedented challenges to individuals, businesses, and governments around the world. There has arguably never been a comparable global crisis of this scale and severity, though we may face challenges similar in scope in the future if there is not global action on other evolving issues such as global warming, and other global sustainability challenges. In this paper it will be argued that the response to SARS-CoV-2 presents a unique window into examining the tensions between individual freedom and measures implemented for the common good. This paper will examine select legal challenges to government regulations and interventions in response to the SARS-CoV-2 pandemic to distill the principles that UK courts are employing to balance individual freedom and the common good in the application of human rights. In R. (on the application of Dolan) v. Secretary of State for Health and Social Care [2020] EWCA Civ 1605, the Court of Appeal emphasises the principal of balancing individual rights and the general interests of the community in applying the European Convention on Human Rights, finding that the pandemic is sufficient rationale for restrictions on individual rights. The balancing of Convention Rights, however, as illustrated by cases such as Philip v Scottish Ministers [2021] CSOH 32, Free Speech Union v Office of Communications [2020] EWHC 3390 (Admin), and Leigh v Commissioner of Police of the Metropolis [2021] EWHC 661 (Admin) can result in varying outcomes depending on the weight afforded to different aspects of the proportionality analysis. It will be argued that whilst this balancing approach may not leave the legal observer with a confidence in the predictability of the outcome of such cases in the future, it may have the advantage of a desirable flexibility as we continue to face greater collective challenges in the future.

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https://researchportal.hw.ac.uk/en/publications/6320878a-fc1c-40fe-8fa8-23ad586e7d8d