I thought I would write about the astonishing implications for the liberty of the events of the last few weeks. With the exception of Silkie Carlo of Big Brother Watch, almost no significant public figure has raised any concerns about this, and I had been unsurprised to see our vast ‘Human Rights’ industry (concerned as it tends to be with the ‘rights’ of criminals, etc) unmoved by this huge assault on the fundamental freedoms, of movement and assembly, made by the Johnson government – or shall we now call it a ‘regime’, since it has effectively got rid of Parliament – not that Parliament minded much? At least Oliver Cromwell needed to use the threat of force to send Parliament home. This lot just went meekly away, having passed one of the worst Bills in modern history without a vote.
This has been typical of all the institutions on which we are supposed to rely on our liberty. None offered any opposition. Parliament failed. The media, with tiny exceptions, failed. Public opinion failed.
The monarchy failed. The legal profession failed. Or did they. As in the famous opening of the Asterix stories ….
(The year is 50 BC. Gaul is entirely occupied by the Romans. Well, not entirely… One small village of indomitable Gauls still holds out against the invaders..).
….we now turn to the one tiny pocket of resistance. You probably won’t have heard of it
But here it is. No magic potion, alas. But a proper independent legal mind.
Here are extracts from:
There is a difference between the law and official instructions
Published by “The Times’ of London on Thursday 26th March on…page 54.
By Lord (Jonathan) Sumption, former Supreme Court Justice and Reith Lecturer
I cannot reproduce the whole article, which is behind a paywall, but the extracts below would in a normal society be front-page news.
The headline might be :
‘Former Supreme Court justice says Johnson measures lead towards police state’.
Or
TOP JUDGE WARNS OF POLICE STATE
The emphases are mine
‘The drive behind the growing power of the state is not power-grabbing politicians, but popular demand. As the technical and administrative capacities of the state expand, people demand more of it in their constant pursuit of security. The state must if it can. Sometimes the state must, even if it cannot.’
‘Things are different today, but the difference is not wholly benign. Public pressure for action at whatever cost pushes the measures beyond what they can realistically expect to achieve. It may well push them beyond what is worth achieving if the price is the destruction of our personal liberty, livelihoods, and sociability. There are dissenting voices, but not many and they are drowned out in a torrent of collective emotion and abuse.’
‘This is a profound change in our political culture.
‘The prime minister’s orders on Monday night are a remarkable example. The Coronavirus Bill had only just been introduced into parliament. It would, when passed, confer draconian powers on ministers to control the “gathering” of any two or more people anywhere and to restrict a person’s right to enter or leaving any “premises”, including that person’s home or car … or tent. However, in his press conference Boris Johnson purported to place most citizens under virtual house arrest through the terms of a press conference and a statement on the government website said to have “immediate effect”. These pronouncements are no doubt valuable as “advice”, even “strong advice”. But under our constitution neither has the slightest legal effect without statutory authority.
‘At the time of writing (25/3/2020), it is unclear what power the prime minister thought that he was exercising. The relevant powers of the government are contained in the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004. But it is doubtful whether either authorize the prime minister’s orders, which is presumably why the Coronavirus Bill has been introduced.
‘The ordinary rule is that a person may not be detained or deprived of his liberty without specific statutory authority. The 1984 act contains powers to restrict movement, but they are exercised by magistrates and apply only to particular people or groups who have been infected or whom they may have infected. The Civil Contingencies Act confers a temporary power of legislation on ministers that are exercised in a national emergency, but no specific power to detain people at home.
‘In the present national mood the prime minister’s orders will probably have strong public support and people will be inclined to comply whether they are binding or not. Yet we are entitled to wonder what kind of society we have become when an official can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary.
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‘There are wider problems with this. Legislation couched in general language can be used for purposes far removed from the original intention. The terrorism legislation, for example, has been used for a variety of other more questionable purposes, ranging from blocking the deposits of insolvent banks in the interests of creditors to manhandling peaceful demonstrators on the streets of London.
‘Governments armed with vast powers are usually reluctant to part with them. The wartime defense regulations, which required the population to “place themselves, their services and their property at the disposal of His Majesty”, had to be renewed annually, but were not allowed to expire until 1964.
‘Other wartime powers were expressed to continue until the government declared the war to be over, which it never did. They continued to be used until the 1980s when the Scott report exposed this unsatisfactory corner of governmental practice.
‘These are not just technicalities. There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something even in the face of a pandemic.’
I thought readers might be interested in the exact legal basis for the restrictions under which they now live. So I asked the government to explain them to me. Below are the actual main rules(the whole lot can be accessed through the link provided). Lower down I have reproduced the sections of the Public Health (Control of Disease) Act of 1984 which forms the legal basis of what is going on or perhaps does not.
You may read the whole set of regulations signed by the Health Secretary, Matt Hancock, here :
http://www.legislation.gov.uk/uksi/2020/350/introductio
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