Boris Johnson’s government is widely believed to have made a U-turn on its initial plan to allow a majority of the British population to become infected with the coronavirus in order to develop ‘herd immunity’ after a report from Imperial College London said this would result in half a million deaths. It has also been widely criticised for its failure, at the time of publication, to initiate a lockdown across the UK.

Philippe Sands QC said it would be necessary, in the aftermath of the pandemic, to establish why the government took so long to act.

Professor Sands told SLN: “This is a moment for solidarity in taking all necessary actions to address the real and imminent dangers posed by COVID-19. In due course, when lives are no longer at risk, it will be necessary to inquire why, in the face of the experience in China and the time available, the British government apparently failed to take adequate measures to prepare the country for what was reasonably foreseeable, and what has come to pass.”

He added: “It may also be necessary to inquire why, as infection rates spread, the initial governmental response was so limited and, apparently, motivated by a ‘herd immunity’ principle that was then ditched. Finally, the civil and criminal law exists to play a role if it turns out that lives were needlessly, or recklessly, lost.”

Dual silk Aidan O’Neill QC said the relevant law was “complex and developing” and that any litigants would have to clear “very high hurdles” to successfully sue for damages against the prime minister or UK government in respect of their exercise of statutory powers.

He told SLN: “The individual will have to be shown to be consciously abusing this power, without caring whether loss might result to those affected by such abuse of power. The availability of any such claim will necessarily turn on the specific facts of any case.”

Mr O’Neill said he would expect the government to legislate to deprive individual businesses of rights to compensation, as in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1964, should actions be brought at common law or for breach of EU law or for incompatibility with the European Convention on Human Rights.

Any such attempt by the government, however, to retrospectively deprive people of property or compensation rights may simply spawn “a whole new raft of litigation” as the European Court of Human Rights has “repeatedly found against retrospective legislation which prevents cases from being raised that might otherwise have been anticipated in the state of the law immediately prior to the enactment”, Mr O’Neill said.

See all of SLN’s latest COVID-19 updates here.