Derogations, deprivation of liberty and the containment stage of pandemic responses

In a recent article in this journal, Professor Tom Hickman defends the UK Government’s decision not to derogate from the ECHR in its response to the COVID-19 pandemic. In making this argument, Hickman engages with my previous article in this journal where I advocated for derogations in response to the pandemic. The purpose of this article is to respond to Hickman’s arguments. First, I contend that a narrow interpretation of art.5.1(e) of the ECHR to allow deprivation of liberty only of those who are infected or may be infected would not unduly restrict state action in the early—or containment—stage of a disease outbreak. Secondly, requiring derogation for emergency powers in the containment stage of a disease outbreak does not water down the definition of a "public emergency threatening the life of the nation" in art.15 of the ECHR . Finally, I dispel the contention that my original argument was based upon a conception of art.15 as discretionary; rather, my argument is based upon how states ought to act when the law in question is unclear. To that end, legal analysis must remain acutely aware of how law ought to be interpreted and not simply focused on predicting what courts may decide.