Ruled by Law or Leviathan? | Harrison Pitt

Since late March, the government has taken it upon itself to rule the British public by emergency decree. Earlier in the week I expressed the view that this prolonged period of whimsical tyranny, in which parliamentary scrutiny has been bypassed in favour of arbitrary decision-making by clueless ministers, spoke ill of our democracy. But what does this year of constant and ongoing despotism say about the rule of law in this country?

In Britain, our liberties are not codified, as they are in the United States, in a robust set of legally active constitutional rights. As such, the freedoms we enjoy require defence in an adversarial parliament. When MPs abdicate their responsibility to scrutinize government policy, as they have done this year (although I notice they are still collecting their £82,000 salaries), these freedoms are bound to slide – especially when governments claim special emergency powers to criminalise ordinary daily habits and punish dissent.

We have become accustomed to an invasive form of government which only last Christmas would have shocked average citizens. Crippling fines have been levied, aerial drones have stalked dog-walkers, and people not wearing state-approved gear have been manhandled by police. There are those who will claim these have been necessary measures taken to protect lives. Although I do not accept this argument, I will not be discussing the question here, not least because others have more effectively rebutted the weak defences made of our cowardly, despotic government.

What concerns me is the hypocrisy of ministers, as they lecture the public about “the rule of law” while forgetting that the legal code applies to them too. Law cannot just be used by ministers as an instrument of their will, however justified that will allegedly is in social and public health terms. There are legal procedures to which governments in free societies are equally bound – procedures which Boris Johnson and his cabinet, in their panicked frenzy, have largely side-stepped.

The lockdown rules, along with all the other restrictions that have conspired against our economic and social lives, were made by ministerial decree under the “state of emergency” powers of the Public Health Act (1984) in March. The government cited these powers as justifying their actions in legal and procedural terms, even as they ran from parliamentary debate and enjoyed a dearth of democratic scrutiny.

The businessman Simon Dolan has brought legal proceedings against the government’s decision to impose a national lockdown, arguing that it constituted a “contravention of basic Human Rights offered under English Law.” Although I am sympathetic to Dolan’s case in political terms, it probably lacks the legal force to challenge a government which, it must be conceded, faced a dauntingly new situation in March and needed the flexibility to act decisively. Litigating such complex questions will not be easy: the issue of proportion, so central to Dolan’s case, is a political – as opposed to a legal – one. We will see how the argument plays out in the courts.

Critics of this government are on a surer legal footing when it comes to challenging the government’s potential misuse of the Public Health Act – the statute under which ministers have claimed the law-making omnipotence of Leviathan since March. Lord Jonathan Sumption, perhaps the finest legal mind in this country, has argued that the only language contained in this Act which confers specific “disease control” powers over British citizens relates to individual cases of infection. In other words, the Public Health Act grants the government powers to quarantine known infected persons, but no right is enumerated to imprison the population at large, as the lockdown did. Yet the government seized these imaginary powers anyway, declaring them a sufficient legal basis for ruling arbitrarily and without parliamentary oversight under the Coronavirus Act (2020). Dolan’s efforts would be far better spent making this subtler, more concrete argument. Better still, perhaps he should spend a large sum of the money he has raised hiring the peerless Lord Sumption to make it.

The situation is even more curious given the fact that, while the Public Health Act does not enumerate the far-reaching powers ministers have claimed, there are other statutes which unquestionably do. The Civil Contingencies Act (2004), for example, contains extensive reserve powers which can be exercised in the event of a national emergency – a kind of flexibility which would easily accommodate the series of health regulations that have been periodically announced, repealed and then often re-announced throughout the year. Yet this Act, despite being better suited to the current public health situation, has been ignored by Johnson’s government, perhaps because the cabinet are less fond of some of the Act’s other legal implications.

Indeed, Britain being a free society, the Civil Contingencies Act does not confer unlimited powers on any government with an appetite to claim and exercise them. The statute contains clear exemptions and limits on the ability of the state to violate key liberties, even in an emergency. Any regulations made under the Act, for instance, can only remain in force for thirty days, after which point the government needs to win a majority vote in parliament to extend them. Lord Sumption has also mentioned other key limits on state power contained within the Act, such as the ability of parliament to amend any proposed state regulations. Clearly, the government calculated it would be too exhausting to have to justify themselves constantly before parliament, and so decided to seize the more dubious powers of the Public Health Act as a workaround.

The lack of democratic scrutiny and the flimsiness of the government’s legal reasoning are therefore intimately connected. Ministers are demanding absolute obedience of the public while showing no regard for the details of legal statute or the norms of democratic debate themselves. It is my hope that, failing an outbreak of sense on the part of Boris Johnson and his ministers, people will start organizing a challenge to the government’s self-serving interpretation of the Public Health Act. Only then can we expect to reclaim our free national life from the hungry, irresponsible Leviathan that currently stalks the land.

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