The Covid Inquiry is rarely out of the news, and has now turned its attention to the Scottish response to the pandemic. Covid-19 lockdowns are frequently defended as “following the science”. That defence, which now looks increasingly shaky even on its own terms, was always specious. For the decision to shut down society is no more a scientific decision, to be delegated to white coats, than a decision to go to war is a military decision to be delegated to khaki uniforms. They are both fundamentally ethical decisions. “Following the ethics” is key to avoiding panicked or disproportionate responses to public health emergencies, responses that also set bad precedents.

Regrettably, prudent ethical reflection appears to have been notable by its absence in the formulation and imposition of the lockdown policy. This is surprising, given that widely-accepted ethical criteria for assessing when coercive public health measures are justified were available to politicians long before the 2020 pandemic. In our recent paper in the journal Issues in Law and Medicine, we question whether lockdowns, as implemented in the UK and many other western countries, satisfied these criteria.

There is broad agreement that coercive public health measures such as lockdowns must meet at least five ethical requirements. First, they must be effective. Second, they must be proportionate: their likely health benefits must be significant enough to outweigh their negative effects. Third, they must be necessary. Fourth, officials should minimise their harmful impact. Lastly, policy makers must be transparent and provide the public with an explanatory justification for their policy.

The lockdowns imposed unprecedented restrictions on human rights and freedoms

These conditions (not unlike the “strict scrutiny” test applied by the US Supreme Court to assess interference with constitutional rights), rightly set a high bar for interventions such as lockdowns. The lockdowns imposed unprecedented restrictions on human rights and freedoms, including the right to education, to work or run a business, and to practice one’s religion. It was insufficient merely to claim that a lockdown would prevent some infections and deaths from Covid. Rather, and at a minimum, deaths avoided by lockdown needed to be so significant as to outweigh the obvious and enormous negative consequences of lockdown itself. No less importantly, it was necessary to show that criminal sanctions, rather than voluntary compliance with public health advice, were required to achieve the public health goal. As the Human Rights Principles in Public Health Emergencies put it, police powers must be a last resort, used only when strictly necessary and when less restrictive measures would be ineffective.

In March 2020, the official case for a strictly time-limited lockdown was that otherwise the health service would be overwhelmed and the UK would consequently witness hundreds of thousands of unnecessary deaths. We now know that this case was based on mathematical modelling that ignored the impact of voluntary behavioural change and that used inflated estimates of fatality rates. Professor Simon Wood of Edinburgh University established that infection rates in England were decreasing before all three lockdowns and Sir Chris Whitty conceded that the “R-rate” of infections was falling before the March 2020 lockdown. We also have the counterfactual case of Sweden where high infection rates peaked and fell without lockdowns.

One reason why the modelling proved faulty seems to be that people changed their behaviour even before they were forced to. Whatever the explanation for that change, the ethical requirement that resort to coercion be strictly necessary was not satisfied.

Not only that, but there is now mounting evidence of the — entirely predictable — massive and lasting harms inflicted by lockdowns themselves (as opposed to the virus). These harms hit the socially disadvantaged hardest, including the poor (both in the UK and abroad) and people with disabilities. The harms were not just economic — crucial though those are — but include harms to health and wellbeing, including loneliness and isolation, to say nothing of the costs to children from lost education and social interaction. Several cost–benefit studies have concluded that the total costs of lockdowns far outweigh any plausible level of benefits in terms of deaths averted.

It is not even clear that lockdowns had any significant effect in preventing deaths. The research evidence on mortality is at best mixed. Some studies suggest lockdowns led to a modest reduction in Covid-related deaths at least in the short run whilst other research finds no significant impact at all. The longer term effect is even more uncertain. There is evidence that lockdowns may have increased overall (“excess”) mortality, taking into account deaths caused by the lockdowns themselves.

In light of the evidence, our paper questions whether the lockdowns, at least as implemented in the UK, met all (if indeed any) of the ethical requirements for such coercive measures.

It might reasonably be asked if the March 2020 lockdown was justified at the time based on the information available to the government. There was, however, evidence available by the 23rd March (e.g. from the NHS Triage system) that infections had already started to level off. There was also early evidence indicating infection rates used in some of the modelling had been overestimated.

But even if the data on infection trends were uncertain in March 2020, there was no such excuse when it came to the imposition of regional tiers in autumn 2020 and then the second and third lockdowns. By then politicians had the data showing that lockdowns and other mandatory restrictions, whilst causing significant harms, were much less effective than hoped.

Moreover, the decision-making process, even as early as March 2020, is open to ethical criticism. We now know the government did not undertake any serious cost-benefit analysis of lockdowns. Rishi Sunak has, to his credit, candidly revealed that the government engaged in “fear-messaging, empowering the scientists and not talking about the trade-offs”. So much, then, for satisfying the ethical requirements of effectiveness, proportionality and necessity of coercion, and of providing a transparent justification to the public!

Further, not only was there an evident lack of adequate ethical reflection in the decision-making process, but it appears that the government sidelined expert bodies that existed to provide ethical input.

Government policy appears to have been characterised by a tunnel-visioned focus on reducing Covid infections and mortality, an approach that is difficult to square with the established ethical criteria. The lockdown remedy was worse than the disease, not least because of its dubious efficacy.

Had the ethical requirements we have outlined been at the heart of the decision-making process, we think that the draconian lockdowns and school closures would have been avoided. So too would other misguided policies such as the care home vaccine mandate that worsened the staffing crisis in the sector but had no effect in saving lives.

Our suggestion to the Covid Inquiry is this. If the UK is to formulate the right response to the next pandemic, it is essential to restore the ethical requirements we have outlined to the central place they should enjoy in public health policy-making, and should have enjoyed in 2020.