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.)
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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.
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