Thursday, 29 October 2020

Government by decree

'Government by decree - Covid-19 and the Constitution' was the Cambridge Freshfields lecture delivered on 27 October 2020 by Lord Sumption who was a Justice of the Supreme Court of the UK from 2012 to 2018.

When advertising the lecture, the University of Cambridge Law Faculty said - "The disputes over Brexit last year saw an attempt to make the executive, not Parliament, the prime source of authority in the Constitution. The coronavirus crisis has provoked another attempt to marginalise Parliament, this time with the willing acquiescence of the House of Commons. Is this to be our future?"

The text of Lord Sumption's lecture is now available - Government by decree: Covid-19 and the Constitution.

The lecture began -

"During the Covid-19 pandemic, the British State has exercised coercive control power over its citizens on a scale never previously attempted. It has taken effective legal control, enforced by the Police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. For three months it placed everbody under a form of house arrest, qualified only by their right to do a limit number of things approved by ministers. All of this has been authorised by ministerial decree with minimal parliamentary involvement ...."

Sumption believes that history will look back on the measures taken to contain Covid-19 as "A monument to collective hysteria and governmental folly." However, the lecture was not concerned with the wisdom of the government's policy and actions. Rather, the focus was on the legal and constitutional basis for so remarkable a departure from our liberal traditions.

Earlier this year, Lord Sumption stated his views about the "lockdown"

Lord Sumption - March 2020:

In March on the BBC World at One programme he criticised Derbyshire police for stopping people exercising in the Peak District. He considered that such Policing risks plunging Britain into a “police state"- The Guardian 30 March.

Lord Sumption warned that police had no legal power to enforce “ministers’ wishes” and that the public should not be “resigning their liberty” to over-zealous citizens in uniform.

“The behaviour of the Derbyshire police in trying to shame people in using their undoubted right to take exercise in the country and wrecking beauty spots in the fells so people don’t want to go there is frankly disgraceful,” he said.

Lord Sumption went further and criticised the government's handling of the pandemic. He referred to the "hysterical" approach to the spread of the virus by closing essential businesses and instructing people to stay at home, arguing that the move would wreck the economy and saddle future generations with a mountain of debt. He said - "Anyone who has studied history will recognise here the classic symptoms of collective hysteria - Hysteria is infectious. We are working ourselves up into a lather in which we exaggerate the threat and stop asking ourselves whether the cure may be worse than the disease.”

At the time - - previous post 31 March - I doubted whether the threat was being exaggerated in the way that Sumption made out. Italy had by then suffered 10,781 deaths. On 29 March there were 2,683 deaths recorded in 34 different European countries and on 30 March, 2,537 deaths were recorded across 35 countries. On 30 March, the death total in the UK had reached 1415 and 9000 people were being treated by the NHS - Sky News 30 March

Lord Sumption - May 2020:

In May 2020, Lord Sumption wrote an article published by the Sunday Times 17 May 2020 (£) - "Set us free from lockdown, ministers, and stop covering your backs."  He also gave a TV Interview - HERE - in which he advocated that the lockdown should become entirely voluntary. "It is up to us, not the State, to decide what risks we are going to take with our own bodies." In my Previous post 19 May 2020 I was critical of Lord Sumption's viewpoint and concluded (quite a lengthy post) by saying -

Sumption's view that  the lockdown is "now all about protecting politicians’ backs" is a purely political opinion and it is questionable whether it is borne out by the available evidence. Also, it is not a "wicked thing" to continue with a modified lockdown which seeks to contain spread of the virus whilst recognising the need for some resumption of further economic activity.

Cambridge lecture - October 2020:

Whatever one thinks about Lord Sumption's views about how the coronavirus pandemic should be handled, it is inescapable that his Cambridge lecture identifies areas of concern about the degree of executive power in the UK and the weakness of Parliament in holding the government to account. It is also correct to say that, in a democracy, the Police and other officials must act within their legal powers.

Sumption concluded his Cambridge lecture by saying - "The government has discovered the power of public fear to let it get its way. It will not forget. Aristotle argued in his Politics that democracy was an inherently defective and unstable form of government. It was, he thought, too easily subverted by demagogues seeking to obtain or keep power by appeals to public emotion and fear. What has saved us from this fate in the two centuries that democracy has subsisted in this country is a tradition of responsible government, based not just on law but on convention, deliberation and restraint, and on the effective exercise of Parliamentary as opposed to executive seovereignty. But like all princplies which depend on a shared political culture, this is a fragile tradition. It may now founder after two centuries in which it has served this country well. What will replace it is a nominal democracy, with a less deliberative and consensual style and an authoritarian reality which will like a great deal less."

Although Lord Sumption does not use the term, he described the "elective dictatorship" so brilliantly set out by the late Lord Hailsham in his 1976 Dimbleby Lecture.

The present government is open to valid criticism in almost every area of its activities including its handling of the coronavirus pandemic. For instance, the vast sum of public money expended on testing and tracing is far from matched by results. Questions continue about how government contracts are awarded and to whom - The Guardian 15 September 2020. (The National Audit Office has a Covid-19 Cost Tracker).

The government is also notable for its aggressive attitude to legal matters. Access to justice continues to be unavailable to many individuals due to cuts in legal aid.  Even at the start of 2020 the criminal courts had an enormous backlog of cases and this has been exacerbated by the pandemic.

Government Ministers feel free to attack lawyers. The Guardian 25 October reports that the Home Secretary kept up anti-lawyer rhetoric even after the Metropolitian Police notified the Home Office in mid-September that it was suspected that a far-right extremist had attempted to carry out a terror attack at a solicitors’ firm in London.

Judicial review is under attack with the Independent Review of Administrative Law largely seen as a vehicle to provide reasons for the government to bring forward changes to make it yet more difficult for the citizen to challenge the legality of government action - previous post 6 October 2020.

A further major concern is the attitude of Ministers to the rule of law itself. This is plainly evidenced by the Internal Market Bill with its clauses seeking to to enable Ministers to make Regulations contrary to the UK-EU withdrawal agreement - previous post 21 October 2020.

Most countries in the world have adopted legal restrictions on the public in their efforts to combat what is undoubtedly a very serious pandemic. The death toll in the UK has now reached 45,675 and is rising - see government data. The government is facing demands to impose even greater restrictions - perhaps a further national "lockdown" similar to measures taken this week in France and Germany - Bloomberg 28 October 2020. It remains to be seen whether the government will acquiesce to such demands and meanwhile a "middle course" is being steered which enables most economic activity to continue and has enabled schools to resume classroom teaching. The middle course may not prove to be enough.

ANY responsible government would have had to handle the coronavirus pandemic and the imposition of restrictions in March 2020 was certainly supported by MPs of all political parties and has continued to have such support.

Most people appear to accept that legal restrictions would have been required to try to minimise infections. There is a legitimate debate over the legal basis for such restrictions - e.g. whether the Civil Contingencies Act 2004 should have been used or whether the Public Health (Control of Disease) Act 1984 provides an adequate legal basis for the restrictions. There could and should have been more debate and more questioning of Ministers. The Regulations might well have been improved but, in all the circumstances and in the face of the medical advice, I believe that Parliament would still have approved them.

The government's attitude to the rule of law and the rights of citizens is a major cause for concern and Sumption's eloquent speech highlights many of the serious isssues of governance which must be addressed in the UK. At the core of that governance must be a Parliament less dominated by the executive. That the UK continues to be a Parliamentary democracy is crucial and Sumption is absolute right to state his concerns about that.

For a much more outspoken criticism of Lord Sumption's speech see the article by journalist Melanie Phillips - This is how reason dies.

Links to material referred to in Lord Sumption's lecture:

Hansard 25 September 2019 - Legal advice: Prorogation - Attorney General Geoffrey Cox QC MP

Supreme Court of the UK - Miller 2 [2019] UKSC 41

Contingencies Fund Act 2020

Coronavirus Act 2020

Civil Contingencies Act 2004

Public Health (Control of Disease) Act 1984 (as amended 2008)

ex parte Simms [2000] 2 AC 115

Piers Corbyn - Law and Lawyers 6 September 2020

Reith Lectures - earlier post of 25 June and see BBC's annual Reith Lectures

BBC Radio 4 on 6 November 2008 - Aristotle's Politics

Lord Sumption's reference to two centuries of democracy probably referred to the Reform Act 1832 which can be taken as the starting point for our modern parliamentary democracy.

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