Any UK Lockdown of Unvaccinated Would Be Vulnerable to Legal Challenges: Leading Barrister

Demonstrators light flares during a rally held by Austria's Freedom Party against COVID-19 mandates in Vienna, Austria, on Nov. 20, 2021. Joe Klamar/AFP via Getty Images

In November, the world watched as Austria implemented a lockdown for its 2 million unvaccinated people, the first country to do so.

Even though lockdown was extended to the entirety of Austria soon after, more countries could look to implement the controversial measures.

The British government has not yet stated any such plans, although the notion was floated in the media by some health policy commentators. But what would be the legal implications in the UK if such measures were introduced?

Barrister Francis Hoar explained to The Epoch Times that such restrictions would be “extreme and highly discriminatory.”

Hoar has been involved in multiple high-profile cases to legally challenge lockdowns and has written extensively on the subject.

“While there is no absolute prohibition against such a measure (assuming it was a lawful use of the Public Health Act) the severity of the measure, its discriminatory effect, and the lack of any emergency would all be important factors weighing in favour of a challenge to its proportionality,” he said.

“If restrictions are made as secondary legislation, that is, powers delegated by an Act of Parliament to a Minister but subject to a Parliamentary vote, restrictions are able to be judicially reviewed. This is how restrictions for all other lockdown-related measures were made, in almost all cases through the Public Health (Control of Disease) Act 1984 (as amended by the Health and Social Care Act 2008),” he added.

Undated photo showing Lady Justice statue on top of the Central Criminal Court of England and Wales, commonly referred to as the Old Bailey, in central London. Jonathan Brady/PA

However, any laws made through primary legislation, an Act of Parliament, such as the Coronavirus Act 2020, cannot be judicially reviewed because Parliament has supreme legal authority in the UK.

Hoar was counsel in the high-profile court case of businessman Simon Dolan, who sought a judicial review of the government’s lockdown policies. Dolan’s case was refused at the Court of Appeal.

“[The lockdown rules] did not distinguish between different groups, and in particular between vaccinated and unvaccinated. Secondly, they were imposed in March 2020, when very little was known about the virus, there had been very little research, almost no one had natural immunity and there was no vaccine. These were all points relied on by the government in that case and all were relevant to the Court of Appeal’s decision to refuse permission to allow a judicial review into the proportionality of the original lockdown restrictions,” said Hoar.

Although the court has previously declared that the lockdowns were lawful, that may not be the case with subsequent lockdowns. Today much more is known about the CCP (Chinese Communist Party) virus. There has been a nationwide vaccine rollout, a huge proportion of the population has natural immunity, and the virus’s overall infection fatality rate is calculated to be approximately 0.096 percent.

“It would be very difficult to see how the current situation could be considered an emergency. While there is no specific test for what is an emergency in the UK, the extent of any public health crisis is an important consideration in determining whether if secondary legislation is proportionate,” said Hoar.

But Hoar said that a case in which the High Court rejected a judicial review into the mandatory vaccination of care home workers, was unique.

“They are the most vulnerable people in this country to this disease and the measure only affected a very defined people in a very defined situation, so it is very different to the imposition of restrictions on every person in the country who had not been vaccinated,” he said.

Prime Minister Boris Johnson has not announced any plans to lock down the unvaccinated, but more countries are looking to implement Austria’s measures.

On Dec. 2, Germany announced it was discussing a lockdown for the unvaccinated, potentially barring them from so-called non-essential shops and leisure facilities.

Big Brother Watch Director Silkie Carlo wrote in an opinion piece for The Daily Telegraph that Europeans have been thrust into a “new two-tier society” and that the human rights balance is “that unvaccinated people pose a health risk to others, and so it is proportionate to take away their liberties to protect public health. Yet this assertion lacks a logical or scientific evidence base.”

Discrimination More Open to Challenge

Hoar said that any measures that discriminate against the unvaccinated would be vulnerable to challenge.

“Article 14 of the ECHR [European Convention on Human Rights] provides that a high-level justification must be found for any legislation that is discriminatory,” he said.

“Articles 8 (private and family life) and potentially 9 (religion), and 11 (protest) may also be engaged in the consideration of the proportionality of any restrictions,” he added.

“Bodily integrity is an important feature of any challenge, as it is protected by Article 8 as well as the Helsinki Declaration, Article 6 of the 2005 UNESCO Declaration on Bioethics and Human Rights, and the Nuremberg Codes. This is relevant if a person is to be required to be vaccinated in order to (for example) enter public places,” said Hoar.

Ben Harris-Quinney, chairman of the world’s oldest conservative think tank The Bow Group told The Epoch Times that “given the coronavirus is likely to be with us forever, the government has no mandate to retain emergency powers to restrict civil liberties without a democratic process any longer.”

Harris-Quinney argued that initial indications are that vaccines reduce the risk of hospitalisation and death, but data show vaccines do not prevent the spread of the virus, and they are not a reliable indicator of whether someone is infectious or may pose a risk to others.

“Britain is a country that has held civil liberties to be sacrosanct for 1,000 years; our citizens tell the government what we want to do, not the other way around. We have encouraged the government to grant those that wish to remain working from home, wearing masks, and taking all vaccine options the liberty to do so, but to also grant that same liberty to those who wish to remain unvaccinated, and to return to normal life,” said Harris-Quinney.