Under the Human Rights act there is a right to liberty:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases..

whilst there is an exemption for infectious diseases that seems applicable to covid:

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases,

the European Court Guidance on this exemption makes it clear that governments are only allowed to detain "infected persons" and moreover, any law that contravenes this provision, must be interpreted as if it were compatible. Thus in effect, any laws or rules that remove the right to liberty of people, can be read as (possibly) removing the right to liberty of Infected persons and them alone.

Background

There is provision under the Coronavirus Act 2020, to restrict gatherings (allegedly). The Coronavirus Act 2020 applies to England and Wales and the Scottish parliament “agreed a Legislative Consent Motion on 24 March 2020 for the act to apply to Scotland”. The Scottish Parliament then passed the Scottish Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020 which in part three prevents “movement and gatherings” (allegedly)

Under the Human rights law (Human Rights Act 1998) specifically article 5:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

of which the relevant exemption is:

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

This exemption is explained by the European Court of Human Rights in the “Guide on Article 5, RIGHT TO LIBERTY AND SECURITY ARTICLE 5 OF THE CONVENTION” which applies to the UK.

In section E “Detention for medical or social reasons” section 2 (page 15)  Prevention of the spreading of infectious diseases it says:

77. The essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are

a) whether the spreading of the infectious disease is dangerous to public health or safety, and

b) whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest.

When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist

The guide makes it clear that the exemption refers only to “a person” and not a group of people and that the exemption only refers to the “infected person” not to those who are not infected. Moreover it has to be the last resort. Thus there is no power to detain someone who is not infected, because they do not fall under the exemptions allowing detention or loss of liberty.

How do we make use of this? This is made clear in section 3 of the human rights act:

3 Interpretation of legislation.

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

As such it is clear that no one can be detained or lose their liberty (related covid) unless they are:

  1. a person known to be infected and then
  2. only if the disease is dangerous to public health and then
  3. only as a last resort.

That is the law, no matter what bits of paper politicians pass.