Was Lockdown Lawful? Thoughts of a former Supreme Court Judge.

Author: Kevin Holder
In: Article Published: Tuesday 27 October 2020

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Lord Sumption has this evening in his lecture entitled “Government by decree - Covid-19 and the Constitution” issued a scathing indictment not only of the political motivations and processes behind lockdown measures, but also the underlying legality of the measures, and their impact upon the long term health of our parliamentary democracy.

His Lordship described the measures as being “coercive powers over citizens on a scale never previously attempted,” that have provided the government with effective control enforced by the police over the personal lives of the entire population; who people are able to meet, what they are permitted to do, and even what they are permitted to do within the privacy of their own home. These measures, he said, were effectively imposed by ministerial decree with minimal parliamentary involvement. He described them as constituting “the most significant interference with personal freedom in the history of our country,” with restrictions that have not been previously been enacted even during war time or health crises “even more serious than this one.”

The premise of Lord Sumption’s lecture was that “such a remarkable departure from liberal principles calls for consideration of the constitutional and legal bases for the measures.”

Political Motivations

Whilst accepting the “seriousness of the epidemic,” Lord Sumption considered that history will look back on the UK response as being “a monument of collective hysteria and government folly.”

His Lordship was highly critical of the government’s approach towards parliamentary sovereignty. He pointed out that whilst Johnsons’s government now had a large parliamentary majority, that had previously not been the case, and that it had tried to avoid parliamentary scrutiny and impede the essential parliamentary function of holding government to account. Former Attorney General Geoffrey Cox, had variously denounced parliament as “dead,” “without moral right,” and a disgrace.” (see here), and the government attempted to prorogue Parliament to avoid parliamentary scrutiny. This was rejected by the Supreme Court in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41)

His Lordship explained that under the British constitution, the government holds power on the sufferance of the elected chamber of the legislature, which underpins our democracy, and which protects citizens from arbitrary exercise of executive power.

In his view, the present government has sought to undermine that fundamental constitutional position, by claiming that its democratic legitimacy is derived directly from the people rather than the people’s democratically elected representatives in the House of Commons. As he explained, this means that there is no method to hold government or individuals to account except during general elections.

His Lordship felt that the government ignored the advice of SAGE behavioural scientists (although he made no mention of the medically qualified SAGE members), and opted for the popular course of imposing coercive restrictions rather than leaving individual citizens to make their own decisions and manage personal risk.

Legal Basis of the Restrictions

Whilst many may disagree with Lord Sumption’s assessment of the wisdom of imposing lockdown or social distancing measures, his views on the underling legality of those measures is likely to be of great interest to all.

If as he contends, the measures were ultra vires (without legal basis), the wider implications could be immense. Government could find itself potentially liable to claims by business for the economic consequences of lockdown measures and by individuals for violations of their human rights and civil liberties. There could be claims by individuals for public services that were withheld during lockdown and claims against the Police for everything from unlawful arrest to civil claims for assault. The political implications of a court concluding that “the most significant interference with personal freedom in the history of our country” was unlawful, would be devastating, and would further undermine the moral authority of a government that has already admitted to being willing to break international law.

The Cambridge Law Faculty video of Lord Sumption's lecture can be viewed here. 

KEVIN HOLDER © 2020

BARRISTER

33 BEDFORD ROW

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