What, if Any, Legal Liability Does the UK Government Have For Deaths Caused by Covid-19?

Henry Blaxland Q.C, Garden Court Chambers: What, if Any, Legal Liability Does the UK Government Have For Deaths Caused by Covid-19?
‘The government has faced sustained criticism of many aspects of its handling of the pandemic. Central to that criticism has been the question of whether the government’s decision making has made the requirement to protect life secondary to economic considerations. What has to be faced is the shockingly high fatality rate in the United Kingdom among care home residents and those working on the front-line, including transport workers. That in itself establishes a prima facie case against those responsible for making critical decisions as the pandemic has engulfed us. All the indications are, however, that any question of legal liability at a governmental level will be firmly resisted’

[Failure to provide PPE may amount to a criminal offence under the Corporate Manslaughter and Corporate Homicide Act 2007]

[CMCHA S.3 is intended to protect government departments from criminal liability for political decision making]

“If the government were an employee of mine I would have sacked them for gross negligence” – so said Anita Astley, manager of Wren Hall nursing home in Nottinghamshire, where 10 residents died from Covid-19 and 48 carers caught the virus in a three week period[1]. Ms Astley’s complaint poses in stark terms a question which has been circulating since the full and devastating extent of the consequences of the pandemic have become clear: what, if any, legal liability does the state have for deaths caused by Covid-19?

The government has been doing its utmost to deflect any suggestion that it may bear responsibility for the consequences of its handling of and failure to prepare for the pandemic. Principally this has been achieved through a call for unity in a time of crisis, to the extent that even muted questioning of government actions by the opposition has been criticised, as witnessed by the Health Secretary Matt Hancock’s suggestion to Rosena Allin-Khan M.P. that she changes her tone when, as a front line A & E doctor as well as a shadow minister, she had the temerity to ask direct questions about the government’s strategy for contact tracing and testing on the floor of the House and the Prime Minister’s rebuke to criticism of his handling of the pandemic by Keir Starmer, that this amounted to undermining trust in the government. There have also been indications that the buck is going to be passed to the government’s scientific advisers.

More sinisterly, there is a suggestion that the government’s decision taken on 19th March to reclassify Covid-19 from a High Consequence Infectious Disease to a Low Consequence Infectious Disease[2], while at the same time the Health and Safety Executive downgraded the classification of Covid-19 under the Control of Substances Hazardous to Health Regulations 2002 from a Group 4 to a Group 3 biological agent, was taken in order to facilitate the decanting of elderly Covid-19 patients from hospitals into care homes.