4th December 2020
A few days ago the Court of Appeal handed down its judgment in the Dolan case.
This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.
The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.
Well now, the Court of Appeal has granted permission for Simon Dolan to argue that the coronavirus lockdown regulations are unlawful.— Matthew Scott (@Barristerblog) December 1, 2020
A stunning victory?
I'm afraid not, a defeat. https://t.co/tto9ssgUvI
There are a couple of things in the judgment that are interesting from a liberal perspective.
First, it was the approach of the court to the exercise of a freedom.
The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.
This is the sort of liberty emphasised by those who trumpet freedom under the common law.
The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.
For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.
Here is the court’s reasoning on freedom of movement.
And then on freedom of assembly.
To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.
The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.
Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.
And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.
That a person was never free to do anything, only to have the reasonable permissions of the authority.
What could possibly be wrong with that?
In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.
Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.
On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.
Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.
The government, of course, chose the latter.
And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.
At paragraph 77 of the judgment:
“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”
The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.
None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.
This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.
Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.
A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.
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