Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

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.

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.

************

If you value the free-to-read and independent legal and policy commentary at this blog and at my Twitter account please do support through the Paypal box above.

Or by becoming a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

**

Comments are welcome but pre-moderated, and so comments will not be published if irksome.

19 thoughts on “Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations”

  1. An Act passed under the premiership of Thatcher gives relatively free rein to Government and was thus arguably inconsistent with aspects of Thatcher’s political philosophy. She was hardly a fan of Big Government, at least in theory.

    An Act passed under the premiership of alleged control freak, Blair, provides a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

    One definitely learns something new every day!

    I strongly suggest, if you are not already subscribed to this blog that you do so.

    1. Yes, the 1984 Act was originally passed under Thatcher, but the relevant coronavirus regulations are made under the provisions in Part 2A of the Public Health (Control of Disease) Act 1984 which were added by the Health and Social Care Act 2008, passed under Gordon Brown.

      I suspect the pre-2008 Act would not have permitted such sweeping regulations to be made, as they focused on specific “notifiable diseases” (such as cholera, plague, smallpox, typhus). As the explanatory notes say, “The Public Health (Control of Disease) Act 1984 … consolidates earlier legislation, much of it dating from the 19th century. Many of its assumptions, both about risks and about how society operates, are now out of date. … [and it] does not address other matters that are now of concern, such as contamination by chemicals or radiation.” https://www.legislation.gov.uk/ukpga/2008/14/notes/division/2/3

      There is also a point mentioned in the Court of Appeal judgment, that the Civil Contingencies Act 2004 is intended for situations where other powers don’t exist, or might not be effective, or would involve unacceptable delay. In my view, it should be acceptable for the government to use powers under a Public Health Act in a public health emergency.

      1. Even if the (cynical) purpose to use powers under the Public Health Act was to avoid the legislative and judicial scrutiny regime of the 2004 Act?

        1. I am wary of sentences commencing “I suspect …” as someone who sometimes does use that phrase.

          The implication being that I have some doubts about the accuracy of what follows.

          Is someone able to confirm or not Andrew’s suspicion, please?

        2. It would be a good thing if use of powers under the Public Health Act carried more express oversight, but is there any evidence that the government cynically opted to make regulations under the Public Health Act, rather than the Civil Contingencies Act, to avoid scrutiny? (I admit, it would be consistent with this government’s actions in other spheres.)

          But I can understand why the Court of Appeal would give the executive a wide margin of appreciation here (my impression is that the Court of Appeal is inherently rather conservative in its approach to the law, and deferential to the executive, although perhaps rather more so historically than today). It would be interesting to see if the Supreme Court might take a different approach on wider policy grounds.

          I’d argue that in fact the government should have moved quicker in March and October/November, and kept the recent lock-down in place for longer – perhaps another week or two in December, until there was a substantial reduction in the numbers like there was in May, and not just a turning of the corner. Despite all the hype about 800,000 doses of vaccine, that will only grant 400,000 people (out of around 66 million) some immunity towards the beginning of January 2021 – about a week after their second shot, which will be three weeks after the first. What about the other 65.6 million people? The logistical issues involved in efficiently and safely vaccinating a substantial fraction of the UK population are of heroic proportions. Good thing the government has such an excellent track record of delivering large projects. We will still be talking about this come Easter. Meanwhile…

    2. The argument of the JR application is that the 1984 act *does not* provide ‘big state’ powers that can be used to impose widespread regulations, as they have been recently. And, by implication, that that was not the intention of parliament when the 1984 act was passed.
      You should distinguish between the intent at the time, and the subsequent intent when it was used.

  2. It would be interesting to compare this with how the US Supreme Court might deal with a similar situation. There is a very interesting article in a recent NYRB which you might find interesting. How the new Trump judges are dealing with the conflict between orignalism, strict interpretation and judicial conservatism – the former two can lead in theory to overturning former “judicially active” interpretations of the constitution, but the latter would militate against overturning well-established principles established in earlier judgments. The new judges are placing emphasis on different elements of this trio of principles. This has resulted in two recent judges where a Trump judge sided with the liberal members of the Court. Amy Coney Barrett adheres to both the former two and the latter. https://www.nybooks.com/articles/2020/12/17/the-battle-over-scalias-legacy/

  3. So, in other words, we are bravely walking into George Orwell’s brave new world unless the Supreme Court overturnes this?

    1. Brave New World was Aldous Huxley’s! We are, however, already in Orwell’s 1984 and other writings.

    2. This case was always heading to the SC. Perhaps the CofA wanted to avoid political mayhem by finding for the applicant. Possibly the SC will conduct the JR (in my opinion it should, if it can) so in that sense it’ll be quicker.

  4. Moreover, the litigant must fund his legal costs and presumably the government’s costs if he loses. What a sham.

    We seem to have inverted the normal common law rule and adopted the position that the law takes in most continental European countries, i.e. the state gives you certain rights and nothing else. How unwelcome.

    Meanwhile the government continues to treat us like children.

    A contrary legal judgement in Portugal – that trashing our liberties is unlawful – is being hushed up by the media and their government is trying to overturn it. Bad news for liberal societies.

    Bizarrely you have to go to RT to find much reporting on the Portuguese judgement … it’s also mentioned in the comments on Dr Malcolm Kendrick’s blog. Given that Portugal is far from being a common law country, it seems bizarre that they’ve come out more for freedom than we have.

    1. If you mean Russia Today by RT, Putin is on record as saying that RT is a mouthpiece for his regime and he is very open about his hostility towards liberal values.

      We are talking about a regime where the media are by law required to not present a positive image of gay relationships.

      And we actually have far right Republicans in the USA saying they have a lot in common with Putin on a range of social issues, like gay rights.

      One tends to take RT’s coverage of any issue with a whole mine of salt these days. It is an extension of asymmetric warfare by other means.

  5. I fully agree that the ‘reasonable excuse’ argument leads into a minefield.

    I’m not so sure about the point that “The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.”

    If Parliament’s sovereignty is as absolute as the orthodox interpretation seems to imply, then there isn’t really any such thing as a fundamental right that Parliament cannot remove. In which case, isn’t the difference, from the court’s perspective, that Parliament has limited citizens’ rights but hasn’t limited the Government’s?

    On the other hand, if Parliament’s supremacy is not absolute – if it is seen as a trust of sovereignty – then the issue is whether there is any constitutionally legitimate way that the courts can reject an Act of Parliament that they believe violates that trust. Personally, I think there is. In my view (as I’ve recently argued in a paperpaper on my own website), if the Supreme Court judges that Government and/or Parliament have breached the duty of care they owe to the public, it could be legitimate for them to ask Her Majesty to summon a specially-elected Parliament to confirm, modify or reject that judgment.

    P.S. I apologise if posting a link to my own paper is out of order, David, but I think it’s an argument you and your readers might find interesting.

  6. What do you make of references to the 2008 amendments to the act? My reading of the judgment seems to say that the amendments were made in the wake of SARS and with the intent to provide powers to control a SARS-like pandemic.

    If that is correct, it suggests a) that Parliament expected the amended act to be used to control any future pandemic and b) that Parliament didn’t expect the Civil Contingencies Act to be used (as that was already on the statute books and presumably would have been referred to if Parliament thought it appropriate).

    1. I’ve not seen much mention of SARS in the parliamentary debates on the 2008 Act, but it came after SARS and the Litvinenko polonium poisoning, to which there is a passing reference in the House of Lords on second reading:

      “We consulted widely on updating the 1984 Act. In light of that, the new legislation contained in Part 3 will provide for a comprehensive set of public health measures to help prevent and control the spread of disease caused by infection or contamination which present, or could present, significant harm to human health. This will enable a quick response to new or unknown diseases or threats, such as the ones we have seen in recent times, for example SARS or Polonium 210. Some of the measures proposed could impact on an individual’s human rights. That is why we have provided significant safeguards in the legislation to protect individuals. Human rights require a balance to be struck between the freedom of the individual and the health and safety of other people; we are confident that we have struck the right balance.” https://publications.parliament.uk/pa/ld200708/ldhansrd/text/80325-0003.htm

      The Joint Committee On Human Rights warned of potential human rights implications in report published in February 2008.
      https://publications.parliament.uk/pa/jt200708/jtselect/jtrights/66/6604.htm
      They don’t seem to have anticipated that the unfettered powers in the act could enable one minster to make a decree requiring the whole population of the entire country to stay at home.

  7. I wonder if we might look forward on this occasion, to a veritable roll-call of government Ministers, led by “subjects of the British government” Constitutional Expert, Mr Rees-Mogg, placed in front of a camera, blasting the Court for “interference” and “bias” in its findings?

    To be rapidly followed of course, by outraged demands for the Court of Appeal to undergo urgent reform?

    Oh, the Court found in the government’s favour?

    I guess not then.

  8. Yes, RT meant Russia Today, a.k.a. Pravda for those who remember the Soviet Union.

    However, the Portuguese court judgement was published on a Portuguese language websit. It wasn’t a figment of Vlad’s imagination.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.