Liberty in lockdown
Is it time to release democracy from quarantine and resuscitate the rule of law?
This article was taken from the September issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.
‘‘When tyrannies take over it is because people volunteer their liberty voluntarily.” A bold pronouncement, but what we have come to expect from Lord Sumption, former Supreme Court judge, in his campaign to defend civil liberties under lockdown.
What could persuade people to volunteer their liberty? Fear, in a word. Emergency situations call for emergency measures. The government responded swiftly to a pandemic despite scant evidence of the infectiousness and severity of Covid-19. The regulations were nodded through parliament to applause rather than opposition. But have the UK’s emergency laws and regulations been proportionate, the least intrusive available, strictly necessary and based on scientific evidence?
Sumption was one of four lawyers and a civil rights campaigner to whom I talked who have been vocal in their opposition to the lockdown laws. All were outspoken about their concerns for the rule of law and democracy.
Lockdown was enforced under the Public Health Act, originally designed to immobilise and treat people who are infectious, not the entire population. What made Covid the first disease to merit quarantining an entire population of the healthy? It was feared that the NHS would be overwhelmed. Other countries had already locked down under emergency legislation, setting a strikingly authoritarian template, which surprisingly became the norm across the liberal democratic countries of Europe: “There is a herd instinct in governments and it gave them political cover,” Sumption told me. “Sometimes the best thing is to do nothing.”
It’s clear now that Covid is not the severe worldwide killer originally feared. After the Public Health England counting fiasco, the death toll was reduced by 5,377 to 41,329 in the UK. Daily deaths are now zero or very low in each region of the UK. Excess deaths have been below the five-year average since mid-June.
Some say this means the Covid epidemic is over; for others the jury is still out. The government has reviewed its emergency legislation behind closed doors, leaving MPs and the public in the dark about the evidence and proportionality of the emergency regulations. One estimate is that 21,000 non-Covid deaths have been indirectly caused by the lockdown measures, and a government report in July predicted that more than 200,000 could ultimately die as a result of delays to treatment associated with lockdown or a Covid-related reluctance for ill people to seek treatment. The inevitable public inquiry must assess whether the whiplash emergency response disproportionately impacted the nation’s medical, social and economic health. A less scrutinised but perhaps more serious consequence remains: has democracy been quarantined and is the rule of law in need of resuscitation?
The lockdown has been enforced mainly through the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, known as the “Lockdown Regulations”, imposed under powers delegated by the Public Health (Control of Disease) Act 1984. In addition, the Coronavirus Act 2020 prohibits gatherings, cancels elections and contains the notorious Schedule 21 which allows for you to be forcibly detained, tested, treated and quarantined. The act will be reviewed by parliament this month, and can be revoked if no longer needed.
On 23 March the prime minister ordered people to stay at home. The next day health secretary Matt Hancock underscored that these were “rules”, not guidance. But Sumption says: “A huge proportion of the British population do not understand the difference between guidance and regulation. The government said ‘you must’ and people assumed it was a rule, when it was not. I think the government knew people did not understand the difference and exploited their confusion.”
Once these “rules” were announced, police forces across the country started to enforce them. Derbyshire police tweeted they would be breaking up groups of people in the streets, provoking Sumption’s outburst, as he describes it, on BBC Radio’s The World at One. He told me: “They had no business doing anything in a national crisis except enforcing the law. They are not there to give effect to their own views on what a national crisis might require or to give effect to what a prime minister’s views might require in a crisis. They are citizens in uniform who should apply the law and nothing else.”
Echoing Sumption, what has troubled barrister Kirsty Brimelow most has been the wrongful convictions that followed the obfuscation between law and guidance. She blames a “chaotic approach and huge incompetence”.
She points out that although citizens must follow the law, we are allowed to decide for ourselves whether to follow guidance. The conflation of guidance and law led people to be “wrongfully arrested, wrongfully convicted and that is not only bad for the person concerned, but also for society and the rule of law in general”. In England, for example, there was a rule we should be two metres apart. It might be sensible guidance, but it has never been law.
Brimelow felt compelled to speak out because of what she saw as miscarriages of justice, such as the conviction of Marie Dinou, who was arrested at Newcastle station at the start of lockdown. She was held in the cells for two nights (under no powers), “treated appallingly” by the district magistrate, given a criminal conviction under the wrong legislation and fined £660, which was subsequently quashed. Dinou’s case was not exceptional: every single conviction under the Coronavirus Act has since been overturned.
“Criminalisation should be removed from these laws,” says Brimelow. “Too many people sitting together having a picnic should never be a criminal offence.” She hoped there would be sensible guidance from police chiefs to officers. Instead, “we had police stepping beyond their powers, fining people for sitting on park benches and threatening to inspect people’s shopping trollies.”
Perhaps some of the confusion arises from the lack of parliamentary scrutiny. The first emergency laws were understandably introduced quickly, but that was surely no excuse when a further 264 statutes were brought in. Laws to cover local lockdowns could be debated properly in parliament and Brimelow says the fact that they aren’t “can only mean government seeking to bypass the democratic system”.
With fellow barrister Pippa Woodrow, Brimelow created a guide for the public and lawyers, and has worked with Silkie Carlo, director of the campaign group Big Brother Watch, on working to raise awareness of wrongful arrests and convictions and get them set aside.
Currently she is encouraging police chiefs to overturn fixed penalty notices. Although they might seem more trivial than criminal convictions, they are stressful and expensive, especially for people who may have lost their livelihoods during lockdown. And there are fewer safeguards, including no right of appeal. Carlo says: “This is the greatest loss of liberty in modern Britain and it has happened by diktat. This is how autocracies and dictatorships emerge, for the ‘greater good’, measure by measure.”
Big Brother Watch mainly fights against state surveillance and Carlo says we should be vigilant about the big tech response to the crisis. “It’s been a cacophony of disaster. With contact tracing, the government wanted to collect as much data as possible and hold it centrally. They were basically asking people to be on a state-issued digital tag. We warned them that there are serious risks with this.
“A lot of public money has been wasted. The government doesn’t understand that they need public trust, but that doesn’t come from rhetoric and finger-wagging. You can’t force people, you need a high degree of trust. That trust did not exist with the app.” More covert surveillance powers may be being used, including “sentiment analysis”. Does she mean our private Facebook timelines? “Facebook and ‘private’ don’t belong in the same sentence,” she shoots back.
Normally the introduction of new policing technology would be publicly debated, but Covid has accelerated the take-up of drones and facial recognition software. Carlo cites a police force in Wales using a drone to disperse people who had been queueing outside a pharmacy for prescriptions, a “dehumanising and intimidating” form of policing.
Solicitor Stephen Jackson is so concerned about the misrepresentation of guidance as law that he founded the website Law or Fiction to help citizens and employers make sense of the emergency legislation. He says he has received many messages from confused and worried people, some quite heartbreaking, such as a new mother who needed a doctor to examine her burst and infected episiotomy stitches. Astonishingly, she was not offered an appointment, but asked to send a photograph of her genitals to an unsecured practice email address. This insensitive and intrusive request is no substitute for proper medical care.
“People think physical contact is not allowed. There are sad cases of people thinking that they must only wave through the window at family, grandparents think they can’t hug their grandchildren. But they are allowed. And imagine the barbarity of not being able to say goodbye to loved ones on their deathbed. This creates permanent scars.”
Jackson specialises in employment law and his website has advice about the health and safety assessments employers are told they must comply with. He says the business guidance is unenforceable and the
Covid risk assessment is flawed.
Barrister Francis Hoar wrote an article arguing that the emergency regulations were incompatible with human rights. On reading it, a businessman, Simon Dolan, who also believed that the government had acted illegally and disproportionately, contacted him.
Together with solicitors Wedlake Bell they mounted a legal challenge against the government, arguing that the lockdown regulations removed the right to liberty by restricting people to their houses, the right to a private and family life, the right to freedom of religion and expression of it, the right to protest and free assembly; plus the damaging effect on business interests and education.
They also question whether the government was right to make the emergency laws under the Public Health Act since it covers infectious people, and the whole population cannot be deemed to be infectious.
At first, a High Court judge denied their request for judicial review. But on 4 August the Court of Appeal ruled their case highlighted “fundamental” concerns about the accountability of ministers. The next hearing is expected to be held at the Court of Appeal at the end of this month. This will decide whether the case should progress to a full appeal which would see the government pressed to defend the introduction of measures which were described by the court as “possibly the most restrictive regime on the public life of persons and businesses ever”.
In Hoar’s chambers hangs a portrait of his ancestor, Sir Nicolas Tindal, whose judgments saved many defendants from execution by codifying the protection of the insane from criminal conviction.
This same passion is evident in Hoar: “I don’t mind being an outsider. There are a number of times that the establishment has got it wrong before. I’m in a profession where one is supposed to protect the outliers and the vulnerable. The great heroes of mine have often done that, even when the prevailing opinion was extremely unpopular. That’s what a barrister should do.”
Hoar implores lawyers to do their part: “The rule of law does not exist in isolation. It depends upon lawyers and judges prepared to defend it against government power: not just through their cases but through condemning the state for stripping individual liberty. It is our responsibility as lawyers to do so.”
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