The former president of the supreme court says parliament “surrendered” its role over emergency laws restricting freedoms amid the coronavirus pandemic, in an intervention expected to embolden MPs threatening a Commons revolt.
The lockdown was one of the most restrictive measures ever introduced since Britain became a democracy. It was originally justified on the basis of ‘flattening the curve’ to protect the NHS. But since this was achieved some time ago, new reasons are always produced to keep us at home or prevent people from carrying out normal activities. Many of our legal rights are being infringed as a result. A legal challenge to the lockdown was launched by businessman Simon Dolan, who sought a judicial review of the government’s policies. Francis Hoar is a barrister who worked on his team. spiked caught up with him to ask why he thinks the lockdown was unlawful, and what damage he feels it has done.
- The [lockdown] measures were not within the parameters of the 1984 Public Health Act. That act does not grant powers to lock down the country, impose restrictions on when people can leave their houses, go to church, meet others or protest.
- Matt Hancock, had ‘fettered his discretion’ in relation to how long the measures would last. This was unlawful because it prevented him from looking at all factors when making his decision.
- The measures breached rights protected in the European Convention on Human Rights (ECHR), including Article Five, the right to liberty (impacted by regulations about when people could leave the house); Article Eight, the right to family and private lives; Article Nine, freedom of religious belief and expression; Article 11, the right to freedom of assembly and association; and Article Two, which relates to the right to education – impacted by the closure of schools.
- The measures were disproportionate because the harms caused were known to the government from an early stage.
- Lockdown legislation was introduced to parliament one working day before they came into force. None of them received any scrutiny by parliament or were debated in detail before they were enacted.
- The government opposition, whose duty it is to provide scrutiny for government measures, failed to oppose the government’s use of the emergency legislation.
- Extremely few lawyers have criticised the impact of these regulations on principle which is surprising because they are such obvious and incredibly serious depravations of very important and serious rights.
- The traditional understanding of Article Two of the ECHR is that it obliges the government to inform individuals of risks to their life, to protect against risks caused by government actions and to provide adequate investigation and redress against loss of life caused by the state.
- There isn’t any case law to suggest that the government has positive obligations to withdraw rights when there is a natural event such as a virus.
- Most of the rights protected by the ECHR have a venerable history in English law and have been removed by executive fiat under an act of parliament, without the need for parliamentary scrutiny.
The final Prime Minister’s Questions of the parliamentary session was played out before a smattering of MPs in the Commons, a depressingly familiar sight throughout the pandemic emergency. The legislature has been endeavouring to work within the constraints imposed by social distancing but its focus has been on piecemeal issues, not the bigger picture.
The most severe curtailment of civil liberties in peacetime went through parliament without a vote weeks after the laws had already taken effect. There will be no vote either on the extension of public health laws to require the wearing of face coverings in shops from tomorrow. The regulations will only be published today when the House will not be sitting. It is hard to believe that a Government diktat enforcing the wearing of masks is to take effect with nary a peep from parliament.