COVID-19 and free speech: ‘gagging’ NHS staff is not proportionate and lawful

George Letsas and Virginia Mantouvalou explain why any blanket restriction on NHS workers’ freedom of speech in the light of the pandemic is unlikely to pass the legal test of proportionality, or fit the image of a democracy that values transparency and accountability.

‘I never thought I lived in a country where freedom of speech is discouraged’, wrote an NHS doctor to The Lancet. The journal receives many messages from front-line health workers who are being threatened with disciplinary action if they raise concerns about their safety at work. According to The Guardian, some NHS staff are altogether forbidden from speaking out publicly about the coronavirus. Intimidation techniques reportedly include threatening emails, monitoring of social media and disciplinary action.

This unprecedented restriction takes place against the background of secrecy surrounding the government’s response to the pandemic. There has so far been limited information both on the situation in hospitals and on the scientific evidence upon which the government acts. With Parliament in recess, the need for public scrutiny is even more pressing.

What is more, wars and pandemics have a substantial degree of a so-called ‘chilling effect’ on free speech: people typically rally behind their leaders and feel reluctant to voice their criticisms, adopting a stance of self-censorship. Even in the absence of any legal restrictions, a pandemic is therefore likely to result in suppression of information and decreased levels of accountability.

Governments’ response to the pandemic across Europe, and the rest of the world, has been accompanied by unprecedented restrictions on freedom of movement and assembly.

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