5th December 2020
A ‘myth’ is often a word we use to describe a thing we disagree with.
But sometimes the word has its uses.
Some things are believed in as true without evidence or despite the evidence.
Take the example the prevalence in modern politics of two views about the relationship between the courts and politics.
The first view is that there is an over-reaching judiciary: that judges are often deciding matters of policy and other political questions against the government and parliament.
The second view is that the law of human rights has ‘gone too far’ and beyond the limits of common sense.
And now take the Dolan case on the legality of the coronavirus lockdown regulations, which this blog considered yesterday.
This was a case where the government had, in effect, legislated by decree – without any prior parliamentary scrutiny and approval – so as to remove fundamental rights of movement, of assembly, of public worship, of being able to trade lawfully and so on.
These widest possible blanket prohibitions one could imagine, all done with no real consideration of the proportionality of each measure and with no accountability.
Law and policy as sledgehammer.
If there was ever a case where there should be anxious scrutiny of the use of delegated legislation this was it.
The courts would surely surely step in, where the legislature had been sidelined.
After all, we have an over-reaching judiciary and human rights law is powerful.
Of course not.
Both the court of appeal and the court of first instance could not have sided more with the executive if they had wanted to do so.
Each fundamental right was a mere tick box for the court to approve the interference by the state.
The reasons for this outcome are familiar to anyone with a detailed interest in public law.
Our courts are invariably deferent to the executive on matters of policy.
The few cases where the government is defeated often turn on their own extraordinary facts.
And human rights law in the United Kingdom is weak and usually impossible to rely on in any practical case.
Almost all the rights under the European Convention on Human Rights, for example, are ‘qualified rights’, which mean that it is not difficult for an executive to interfere with those rights when it says it is in the public interest to do so.
And so the most illiberal legal measures in peacetime could be imposed by the government without prior parliamentary scrutiny and approval, and the courts could not nod any harder at the government doing this.
(My own view, as I set out yesterday, is that even if the individual measures were warranted at a time of a public health emergency, the measures should have been done via Civil Contingencies Act, which provides for detailed legislative and judicial oversight, and not through the Public Health Act which meant no real legislative and judicial oversight at all.)
*
There is a famous statement by a judge in a case during the second world war – a statement which every law student knows.
This is Lord Atkin in Liversidge v Anderson:
‘In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’
But what most law students also forget is that this was said in a dissenting judgment: Lord Atkin was in a minority.
The depressing fact is that in England there is often almost little to nothing the courts can or will do against executive action, even when there is no prior parliamentary approval for the measures imposed.
Courts and judges are far better at finding reasons not to intervene than to do so.
If the Human Rights Act, for example, had a quarter of the power which its populist detractors accuse it of having, the Dolan case would not have been so one-sided.
Yes: it was a public health case, but that should make a court more anxious in its scrutiny of emergency legislation, not less.
To paraphrase Lord Atkin: amid a pandemic, the laws should not be silent.
Those who promote the views that there is an over-reaching judiciary and that the law of human rights has ‘gone too far’ do not care about this, of course.
For these cherished views are their myths, and so they will stick with them.
But these views are, in fact, fantasies.
We do not have an over-reaching judiciary and the law of human rights has not ‘gone too far’ – and the Dolan case shows this.
************
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.
As a civil libertarian, I agree with this. I’ve always felt that the ECHR’s “qualified rights” are, presumably intentionally, far too friendly towards the use of state power. Dictators invariably appeal to these qualifications to justify their usurpation of democracy and liberty. Thus this is from Article 8(2) of the ECHR: you can exercise your rights to family and private life, but these can be limited as long as any limitation is “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. That’s a coach and horses if someone has the desire to drive one.
“The myths of ‘arrogant judicial power’ and ‘human rights gone mad’ and the Dolan judgment”
Abso-bloody-lutely.
Brilliant blog, if I may say so.
PK
I imagine that every single government in living memory, save the current excuse for one, would have tried to use law less coercively. The pandemic storm was seen coming over the horizon since first reports were recieved of the situation in Wuhan more than a year ago. You didn’t need to be a clairvoyant to predict what would happen and even the less talented medium should have picked up the vibrations after Italy and Spain were struck down. This means that a competent government would have had months to prepare for a likely “lockdown” and the curtailment of rights that it implied. Such a government would not have needed “emergency powers”, but could have brought the Commons and the country with it through meaningful debate in parliament and public information broadcasts in the run up to the inevitable national restrictions – world beating Britain was well behind the curve on that, after all.
Instead, we have the arrogance of an entitled, lazy, buffoon leading an army of disgruntled, dimwitted Brexit ministers, married to the supreme disdain of his chief SPAD for just about everything save his own interests. Cummings is (was?) a prime mover behind the assualt on the judiciary and his contempt of parliament (both the sanctionless one and the more general) meant that he would advise his “boss” that parliament could be side-lined and Bojo could “act decisively” – it was the perfect storm.
Brilliant piece.
The important words in the qualified ECHR rights are “in accordance with the law” (or “as are prescribed by law”) and “necessary in a democratic society”. Even then article 15 allows exceptions in emergencies.
On process, section 45Q(4) of the Public Health (Control of Disease) Act 1984 would ordinarily require regulations with this sort of intrusive measure to be laid in draft and approved by parliament before coming into effect. But section 45R permits regulations to be made without those steps “if the instrument contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved”. (The regulations were finally approved by parliament in May – https://statutoryinstruments.parliament.uk/timeline/zVxJasSr/SI-2020350/ )
You argue David, that another power and process should have been used to make the regulations instead, but it seems reasonably clear to me that the public health legislation allowed it, at least for the first regulations in March. It would take a bold court to second-guess the executive in the middle of what is undoubtedly a real public health emergency.
That said, interestingly, the most recent “tier” regulations were also made and laid without prior parliamentary approval of a draft.
https://www.legislation.gov.uk/uksi/2020/1374/made
There may be a much stronger case that there was no equivalent “urgency” in December, even though the minster said there was.
I’d be interested to hear how much prior legislative debate and approval was required before similarly intrusive steps were taken elsewhere, in say France, Germany, Italy or Spain.
I find the contrast with Sweden very interesting. My daughter, now living there, tells me that the Swedish constitution does not permit such interference in personal liberties, and therefore the social distancing measures have had to be done by consent; most facilities have remained open. It will be interesting to see whether their eventual death toll and infection rates support this approach.
If Human rights have gone mad, how does this nation get away with its systemic abuse of the right to a fair hearing within a reasonable time?
That may not be entirely relevant to this particular article, except that those complaining about “Human rights gone mad” often do so in the context of deportation and we have a thoroughly unpleasant Home Secretary of whom the accusations of bullying really ought to have been heard by a court by now.