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Judicial Scrutiny of COVID-19 Regulations in the UK: Addressing Deference to Data-Driven Decision-Making in Human Rights Cases

Dr Richard Mackenzie-Gray Scott

This report forms part of the project The Role of Good Governance and the Rule of Law in Building Public Trust in Data-Driven Responses to Public Health Emergencies, a COVID-19 Rapid Response research project funded by the Arts and Humanities Research Council on behalf of UK Research and Innovation (grant AH/V015214/1).

COVID-19 has resulted in governments implementing emergency measures in order to help address this pandemic. These measures raise questions concerning the balance that countries are tasked with striking between individual freedoms and the rights of the general public during a public health emergency. The actual and potential effects of response measures to the COVID-19 pandemic thus need to be weighed against the actual and potential effects of not implementing those measures, or implementing different measures. These policy choices have ostensibly been made on the basis of scientific data. Some of these decisions have been examined in UK cases where COVID-19 regulations have been challenged on human rights grounds under the European Convention on Human Rights ('ECHR').

The principles of necessity and proportionality used to assess state responses to this pandemic in pursuit of the legitimate aim of protecting public health determine the lawfulness of a particular measure, whether it be government-mandated vaccinations or nation-wide lockdowns. The claim by governments to be making data-driven decisions appears to not only legitimise these choices, but has also contributed to a considerable amount of judicial deference towards government decision-making. The margin of appreciation afforded to government in human rights cases at present appears to be wide, with some limited exceptions.

This working paper distils key rulings from courts in the UK that have been tasked with scrutinising COVID-19 regulations. The interim conclusion offers an analysis of these cases from a comparative perspective, taking into consideration the stances adopted by judiciaries and regulators across a range of other countries. Lastly, some concerns in the context of data-driven responses to public health emergencies are raised, before making a number of recommendations to courts and governments in the UK.

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