Bonfire of the Freedoms: The Unlawful Exercise of Powers conferred by the Public Health (Control of Disease) Act 1984

This text is part of a longer article I’m currently writing about the expansion of the UK biosecurity state through the winter of 2020-21. However, the Government’s enforcement of a nationwide lockdown this week has convinced me to publish it now as a separate article. I hope it will offer some lawful and moral support to those who intend, as we do, to resist the restrictions and requirements imposed on us by the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, which come into effect today, and which have provided the legal basis for enforcing this second lockdown. What my article shows is that these, and all the other coronavirus-justified Regulations, that are removing our civil liberties have been made unlawfully, and that their enforcement, therefore, is in violation of our constitutional rights and freedoms.

On 27 October this year, Lord Sumption QC, a former Justice of the Supreme Court between 2012 and 2018, and widely regarded as one of the UK’s foremost authorities on constitutional law, and also one of the most prominent critics of the Government’s response to the coronavirus crisis, delivered the Cambridge Freshfields Annual Law Lecture under the title ‘Government by Decree: COVID-19 and the Constitution’. Beforehand, Cambridge Private Law, which had organised the lecture, invited listeners to submit questions to which Lord Sumption would be asked to respond afterwards. This was my undoubtedly overlong and technical question:

‘Dear Lord Sumption

‘You have previously stated that the Public Health (Control of Disease) Act 1984, under which most of the coronavirus-justified Regulations restricting our freedoms have been made into law, does not confer the power to control the movements of healthy people or to close uninfected premises, and that doing so is in violation of our human rights.

‘However, Section 45C (Health protection regulations: domestic) of that Act appears to confer such power under paragraph 3 (c): “imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.”

‘These include, as specified in paragraph 4 (a) “a requirement that a child is to be kept away from school, (b) a prohibition or restriction relating to the holding of an event or gathering, and (d) a special restriction or requirement.”

‘Under the following section, 45D (Restrictions on power to make regulations under section 45C), a provision imposing such restrictions can only be made if, under paragraph 1: “the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it”.

‘Moreover, under paragraph 4, such restrictions or requirements may only be made if (a) “the regulations are made in response to a serious and imminent threat to public health”, or (b) “imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed”.

‘It would appear, therefore, that the unlawfulness in the Government employing the Public Health Act to make no less than 75 coronavirus-justified Statutory Instruments into law lies in:

1) the lack of evidence presented to Parliament for the ‘serious and imminent threat to public health’ presented by coronavirus; and

2) the lack of evidence presented to Parliament for the proportionality of the coronavirus-justified Regulations to the threat to public health.

‘In place of both absences of evidence, every one of the Statutory Instrument’s made into law without a draft being laid before Parliament for debate, without medical and other evidence for their justification being provided, and without an assessment being made of the impact of the Regulations, has included instead the following statement:

These Regulations are made in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England. 

The Secretary of State considers that the restrictions and requirements imposed by . . . [the particular Regulations] . . . are proportionate to what they seek to achieve, which is a public health response to that threat.

In accordance with section 45R of that Act, the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.

‘This is followed, in the Explanatory Note, with the statement that:

As this instrument will cease to have effect after less than 12 months, a Regulatory Impact Assessment is not required and would be disproportionate.

‘My question, therefore, is whether the unlawfulness of the Government’s actions lies not in the absence of power conferred by the Public Health Act to make these Regulations, but in the bypassing of parliamentary procedures for making them, which at the time of writing has led to no less than 260 coronavirus-justified Statutory Instruments being made into law without evidence of their proportionality to a “serious and imminent threat to public health” for which there is an equal lack of evidence.’

Perhaps unsurprisingly, my question was not one of those asked afterwards; but it did not matter because Lord Sumption has already answered it. And his answer was that the unlawfulness of the Secretary of State for Health, Matt Hancock, in using the 2008 amendments to the Public Health (Control of Diseases) Act 1984 to impose Regulations on the British people lies not only in the repeated lack of parliamentary scrutiny, absence of evidence for their justification or proportionality and failure to produce an impact assessment, but also in using the powers conferred by Section 45C to make Regulations they are not empowered to make. The 20 provisions on Public Health Protection in Part 2A of the Act (45A-T) were only added by Section 129 of the Health and Social Care Act 2008; and it is on the basis of the single sentence in paragraph 3 (c) about ‘imposing or enabling the imposition of restrictions or requirements’ that the 67 coronavirus-justified Statutory Instruments and hundreds of Regulations restricting the civil liberties and removing the constitutional rights of the British people have been imposed. This, Lord Sumption argued, is contrary to the basic constitutional principle that general words, such as those contained in this single sentence, are not to be read as authorising the infringement of fundamental rights, few of which, he says, are more fundamental than personal liberty. The best-known formulation of this principle of legality comes from the speech of Lord Hoffmann in Ex parte Simms (2000) 2 AC 115, 131:

‘Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’

In contrast to the general application of the provision contained in Section 45 C to impose restrictions or requirements, the Public Health Act only confers specific powers on magistrates to make orders in relation to people thought to be infectious or to close premises thought to be contaminated. Beyond this, the Secretary of State’s powers are limited to imposing a prohibition or restriction on the holding of ‘an event or gathering’. Neither of these is defined, but the context, according to Lord Sumption, makes it clear that it relates to threats to public order consequent upon substantial gatherings of people, and these powers are not intended to control what people get up to in the privacy of their own homes. Crucially, Lord Sumption argues that there is no specific power to control the movements of healthy people, and to interpret as such would not only be inconsistent with the principle of legality, but would also be contrary to tenor of this part of the Act:

‘It is axiomatic that if a statute deals in terms with the circumstances in which a power can be exercised so as to curtail the liberty of the subject, it is not open to a public authority to exercise the power in different or wider circumstances. On well-established legal principles, the powers under the Public Health Act were not intended to authorise measures as drastic as those which have been imposed.’ 

Finally, Lord Sumption addresses the question, which I looked at in my article The New Normal: What is the Biosecurity State? (Part 1. Programmes and Regulations), of why the Government has imposed these restrictions through secondary legislation made under the Public Health Act rather than under the Civil Contingencies Act 2004, which was already on the statute book. And his answer — the only plausible one, he says — is that while emergency regulations made under the latter Act would require a high level of parliamentary scrutiny — including that a draft be laid before Parliament before they are made, or if not within 7 days of having been made, and must be reviewed every 30 days for approval, and can be amended or revoked by Parliament at any time — Regulations made under the Public Health Act, to the contrary, can be made without scrutiny by Parliament, only require approval 28 days after coming into effect, can’t be amended or revoked by Parliament once approved, and remain in force for as long as the Secretary of State says they must. And it is this relative lack of scrutiny, argues Lord Sumption, that indicates the limited scope of the powers conferred by the Act — limits that stop well short of the vast scope of the measures for which they are being used.

‘These differences in the level of Parliamentary scrutiny were remarked upon at the time when the powers in question were added to the Public Health Act in 2008. The government of the day told the Constitution Committee of the House of Lords that the lesser degree of Parliamentary scrutiny was appropriate because the powers under the Public Health Act were not intended to authorize anything very radical. They were mainly directed at controlling the behaviour of infected people, and then only in cases where the proposed measure was urgent but “minor in scope and effect.”’

What this means is that all the Regulations made in exercise of the powers conferred by section 45C(1), (3)(c) and (4)(d) of the Public Health (Control of Diseases) Act 1984 are unlawful — or in legal terms ultra vires, that is, beyond the powers of the Secretary of State — and their enforcement therefore in violation of our rights. These include the following 67 Statutory Instruments imposing restrictions and requirements relating to freedom of movement, gatherings in public, meetings in private residences, contact tracing, self-isolating, detention of persons, closing of premises and businesses, conditions for their reopening, the wearing of masks in public places, obligations on members of the public to enforce such restrictions and requirements, the powers of enforcement available to constables, community support officers, transport police, and medical officers, the fixed penalty notices issued for non-compliance, the criminal offences committed by doing so, the application of lockdown measures to designated areas, and the setting of Tiers designating the severity of these measures:

10 February
Health Protection (Coronavirus) Regulations 2020

6 March
Health Protection (Notification) (Amendment) Regulations 2020

23 March
Health Protection (Coronavirus, Business Closure) (England) Regulations 2020

26 March
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

22 April
Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020

13 May
Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020

1 June
Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020

Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020

15 June
Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020

3 July
Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020

10 July
Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) Regulations 2020

17 July
Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020

20 July
Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) Regulations 2020

23 July
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020

Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 2) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) (No. 2) Regulations 2020

24 July
Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Luton) Regulations 2020

31 July
Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020

3 August
Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) (No. 3) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Leicester) (No. 2) Regulations 2020

4 August
Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020

7 August
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020

10 August
Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) (Amendment) Regulations 2020

14 August
Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) (Amendment) (No. 2) Regulations 2020

Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 3) Regulations 2020

18 August
Health Protection (Coronavirus, Restrictions) (Leicester) (No. 2) (Amendment) Regulations 2020

21 August
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) Regulations 2020

25 August
Health Protection (Coronavirus, Restrictions) (North of England) (Amendment) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) Regulations 2020

27 August
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020

Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020

1 September
Health Protection (Coronavirus, Restrictions) (Greencore) Regulations 2020

2 September
Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) (No. 2) Regulations 2020

3 September
Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) (No. 3) Regulations 2020

7 September
Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford, Leicester, and North of England) (Amendment) Regulations 2020

10 September
Health Protection (Coronavirus, Restrictions) (Bolton) Regulations 2020

14 September
Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Birmingham, Sandwell and Solihull) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Leicester) (No. 2) (Amendment) (No. 2) Regulations 2020

17 September
Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020

Health Protection (Coronavirus, Restrictions) (North East of England) Regulations 2020

18 September
Health Protection (Coronavirus, Restrictions) (North East of England) (Amendment) Regulations 2020

22 September
Health Protection (Coronavirus, Restrictions) (Protected Areas and Linked Childcare Households) (Amendment) Regulations 2020

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 2) Regulations 2020

23 September
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020

24 September
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 3) Regulations 2020

Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020

28 September
Health Protection (Coronavirus, Restrictions) (Protected Areas and Restriction on Businesses) (Amendment) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020

Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) (Amendment) Regulations 2020

30 September
Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) etc.) (Amendment) Regulations 2020

2 October
Health Protection (Coronavirus, Restrictions) (North of England and North East and North West of England etc.) (Amendment) Regulations 2020

12 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020

Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020

Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020

15 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) (Amendment) Regulations 2020

16 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) (Amendment) Regulations 2020

22 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium, High and Very High) (England) (Amendment) Regulations 2020

26 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium, High and Very High) (England) (Amendment) (No. 2) Regulations 2020

Health Protection (Notification) (Amendment) (Coronavirus) Regulations 2020

Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium, High and Very High) (England) (Amendment) (No. 3) Regulations 2020

29 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium, High and Very High) (England) (Amendment) (No. 3) Regulations 2020

30 October
Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) (Amendment) (No. 2) Regulations 2020

2 November
Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) (Amendment) (No. 3) Regulations 2020

3 November
Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020

It beggars belief that every one of these 67 Statutory Instruments, and the hundreds of regulations they made into law without prior parliamentary scrutiny, evidence of their justification or proportionality or assessment of their impact, exercised the single power conferred by Section 45C (1) that:

‘The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).’

And that under Section 45C (3):

‘Regulations under subsection (1) may in particular include provision (c) imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.’

And that under Section 45C (4):

‘The restrictions or requirements mentioned in subsection (3)(c) include in particular (d) a special restriction or requirement.’

With these few lines, introduced in an amendment twelve years ago conferring powers on the Secretary of State to impose measures ‘minor in scope and effect’, a country has been ruined, a people enslaved.

What this also means is the series of accusations Lord Sumption levelled in this lecture (which may be still viewed in full on YouTube) against the UK Government, which he accuses of being ‘authoritarian’, of using ‘propaganda’ to create its own public opinion, of the ‘manipulative’ use of statistics, of ‘alarmist’ projections of deaths, of deliberately stoking up unjustified ‘fear’ in the public, all in the service of affecting our transition to a ‘totalitarian society’:

‘This is how freedom dies. When societies lose their liberty, it is not usually because some despot has crushed it under his boot. It is because people voluntarily surrendered their liberty out of fear of some external threat. Historically, fear has always been the most potent instrument of the authoritarian state. This is what we are witnessing today. But the fault is not just in our government. It is in ourselves. Fear provokes strident demands for abrasive action, much of which is unhelpful or damaging. It promotes intolerant conformism. It encourages abuse directed against anyone who steps out of line, including many responsible opponents of this government’s measures and some notable scientists who have questioned their empirical basis. These are the authentic ingredients of a totalitarian society.’

These are not the accusations of an anarchist; they are not even my own — although I warned of coronavirus being used by the Government to cloak the encroaching totalitarianism of the UK state back in May. At the time, some readers said I was guilty of exaggeration; today they are issuing the same warning. These are the words of a pillar of the British establishment: a conservative, an Old Etonian, a Fellow of Magdalen College at Oxford University, a medieval historian, a Queen’s Counsel, a defender of Russian oligarchs, English banks, British politicians and UK governments, a Justice of the Supreme Court and a member of the Privy Council. Above all, these are the accusations of someone whose profession has been to use words precisely in order to define the law and describe the seriousness of a crime. Accusations of authoritarianism and totalitarianism from such a source cannot be dismissed as a ‘conspiracy theory’.

On 4 November, our representatives in the House of Commons, having debated the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 — the 67th Statutory Instrument made under Section 45C of the Public Health (Control of Diseases) Act 1984, and the first time since the beginning of the crisis that coronavirus-justified Regulations have been presented to Parliament before being made into law — voted to approve them by 516 to 38. However, this ‘debate’ — conducted in a reduced sitting of the House of Commons limited to just 3 hours — was only a formal commitment made by the Secretary of State on 30 September. The draft of the Regulations was only published the day before, and the Regulations stated that they would come into effect at one-minute past midnight on 5 November. Once again, the Government made no assessment of the social, economic, mental and health impacts of the national lockdown these Regulations enforced. Nor did it present Parliament with evidence for their justification or proportionality beyond a single paragraph quoting figures on infection rates produced by the consistently alarmist and repeatedly discredited modellers at Imperial College London and the modelling sub-group they largely compose from the Government’s own Scientific Advisory Group for Emergencies.

Just 38 MPs, including the Leader of the Opposition and the Secretary of State for Health, were able to speak in the allotted time. And although Sir Robert Neill, a barrister and Conservative MP for Bromley and Chislehurst, questioned whether the measures were necessary, proportionate and supported by evidence, and Graham Brady, the Conservative MP for Altrincham and Sale West, questioned whether the Government has the right to make Regulations that intrude into our private lives, no Member of Parliament challenged the legality of making such authoritarian and totalitarian Regulations on the basis of a single sentence in an amendment to the Public Health Act. Although I read Hansard (the official report of proceedings in both Houses of Parliament) fairly regularly, the last time I listened to a Statute being debated in the House of Commons live was the Housing and Planning Act 2016. That was a shambles of filibustering and tabling of last-minute amendments, but the ‘debate’ on these Regulations was on an even more reduced level — equivalent, perhaps, to a discussion in an O-level class by students eager to catch the last bus home. It reminded me, once again, just how low is the calibre of the MPs representing us in the House of Commons, and why the Secretary of State was so confident about putting these Regulations to a vote.

The following day, the Chancellor of the Exchequer announced that the Job Retention Scheme, which was due to be increased until the end of the 4-week lockdown, would now be further extended until the end of March 2021. This strongly indicates that these Regulations, too, will be extended for a further 4 months by successive new Health Protection (Coronavirus, Restrictions) (England) Regulations. In a follow-up article published in The Critic on 8 November titled ‘Where is Parliament?’, Lord Sumption passed judgement on this failure of the legislature to hold the executive to account:

‘I have no doubt that a desire to minimise Parliamentary scrutiny has been a deliberate policy, and not just a welcome accident. I set out my reasons for thinking that in my Cambridge lecture. What seems clear is that if Parliament cannot rise to the challenge of curbing the most determined attempt in modern times to rule by executive decree, then I seriously question whether it can claim any real constitutional relevance.’

Now it’s my turn to use harsh words precisely. If we had a functioning Parliament worthy of the name and not an incompetent and malfunctioning Commons of party-whipped cowards concerned only with outshining each other in their demands for more severe restrictions, this unconstitutional abuse of executive power would be stopped, the correct exercise of the powers conferred by Section 45C of the Public Health Act debated and clarified, and Government-imposed regulations brought into conformity with enacted legislation. Instead, our political representatives continue to approve these Regulations weeks after they come into effect and the day before they come into effect, with little or no debate on their justification or proportionality, and with no consideration given to their social, economic, psychological, medical or political impact.

One of the questions Lord Sumption was asked after his lecture was about what forms of resistance we can take to these unlawful Regulations, to which he responded:

‘I personally do not believe that there is a moral obligation to comply with the law simply because it is the law. It seems to me that there are circumstances in which there are more powerful considerations the other way. It seems to me that when you hear Ministers, for example, discussing the question whether people should spend Christmas with their families — as if the right to spend Christmas with your family was a kind of boon, or gift or favour conferred by Ministers out of the kindness of their hearts — you have to ask yourself: what are the moral limits of the Government’s power, even by lawful Regulations let alone unlawful ones, to control the private lives of individuals? Personally, I think that some of these Regulations go well beyond the moral rights of Government, and I would not be at all surprised if they were widely ignored.’

It is our duty, therefore, as citizens struggling to act like a parliamentary democracy in a constitutional monarchy that is being ruled by a constitutional dictatorship, to restore the way laws are made in this country to their legal, parliamentary and democratic procedures. To do so, we must wrestle back our undoubtedly flawed, increasingly corrupted and currently misfunctioning political institutions from this Government, which under the cloak of the coronavirus crisis is ruling the British people by decree in an ‘emergency period’ it is in its power to extend indefinitely. Resistance to tyranny does not lie in protests and petitions, but in mass acts of civil disobedience by millions acting on the guidance of their conscience.Where Parliament has failed to defend and uphold our constitutional rights and freedoms — the rule of law, representative democracy, parliamentary sovereignty, legislative scrutiny, judicial review, the right to liberty and a free trial, the right to privacy from surveillance, our social and economic rights, freedom of association and assembly, freedom of conscience and expression — the people must prevail in acts of civil disobedience against unlawfully made restrictions — by refusing to wear a mask, refusing to comply with anti-social distancing, refusing to hand over our details to contact tracing, rejecting biometric testing and monitoring, defending our right to privacy, contesting illegally issued fixed penalty notices, holding our Members of Parliament to account, by rejecting the politics of fear, and by supporting each other in our resistance to dictatorship. A popular saying of unknown provenance is that in a time of universal deceit speaking the truth is a revolutionary act. That time is now. If we do not enact our political duties as UK citizens, we will have shown ourselves to be unworthy of the freedom we have so easily allowed to be taken from us.

We publish this article on 5 November, traditionally called Bonfire Night, to commemorate the Gunpowder Plot on Parliament in 1605. But my title also echoes the Bonfire of the Vanities of 1497, when the citizens of Florence were convinced by a Dominican Friar who had threatened them with a biblical flood to throw away possessions that has been condemned by the authorities as ‘sinful’. Who would have thought that, half a millennium later, equally duplicitous authorities could play the same trick, and convince us to throw away our freedoms to protect us from an equally chimerical threat? Bonfires, of course, somewhat nearer in time, are what German university students threw thousands of books that contradicted the dictates of National Socialism into in 1933, initiating a wave of cultural censorship and control. Today, England too has woken up in an authoritarian state, governed by decree, in which, as subjects of the state, when we are permitted to leave our homes, with whom and how many people we can meet, where we can and cannot go, what activities we can and cannot do, what premises and businesses can stay open, what goods and services we can purchase, and the fines and penalties for non-compliance with these restrictions and requirements, are all imposed, monitored and enforced by regulations, programmes and technologies of surveillance and control that can only be called totalitarian. This is the UK biosecurity state 2020.

Simon Elmer
Architects for Social Housing

Further reading by the same author:

The Betrayal of the Clerks: UK Intellectuals in the Service of the Biosecurity State

When the House Burns: Giorgio Agamben on the Coronavirus Crisis

The New Normal: What is the UK Biosecurity State? (Part 2. Normalising Fear)

The New Normal: What is the UK Biosecurity State? (Part 1. Programmes and Regulations)

The Science and Law of Refusing to Wear Masks: Texts and Arguments in Support of Civil Disobedience

Lockdown: Collateral Damage in the War on COVID-19

The State of Emergency as Paradigm of Government: Coronavirus Legislation, Implementation and Enforcement

Manufacturing Consensus: The Registering of COVID-19 Deaths in the UK

Giorgio Agamben and the Bio-Politics of COVID-19

Good Morning, Coronazombies! Diary of a Bio-political Crisis Event

Coronazombies! Infection and Denial in the United Kingdom

Language is a Virus: SARs-CoV-2 and the Science of Political Control

Sociology of a Disease: Age, Class and Mortality in the Coronavirus Pandemic

COVID-19 and Capitalism

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18 thoughts on “Bonfire of the Freedoms: The Unlawful Exercise of Powers conferred by the Public Health (Control of Disease) Act 1984

  1. Plenty to think about there!

    Also consider what’s afoot in Australia…

    See below my rapid response recently published on The BMJ: https://www.bmj.com/content/370/bmj.m3258/rr-17 (Fully referenced version accessible via the link.)

    Consider how this draconian legislation was slid through the Australian Parliament by ‘our elected representatives’, with no consultation with the Australian people as far as I’m aware.

    Five years imprisonment and/or a $66,600 fine for refusing coronavirus vaccination?

    Dear Editor

    From Australia, I’m watching the fast-tracked development of coronavirus vaccines with mounting concern.

    Under the Australian Biosecurity Act 2015, refusers of coronavirus vaccination[1] in Australia could be at risk of five years imprisonment and/or a $66,600 fine.[2] [3]

    This emergency power has been active since March 2020, and has been extended to December 2020 [4], with the potential for unlimited extensions.[5]

    It’s possible this emergency power could be extended until a coronavirus vaccine is available, and that people in Australia could be under duress to have coronavirus vaccination, i.e. at risk of imprisonment and/or a huge fine, for a virus which is not a threat to most people under 70.[6]

    We need to talk about this…

    Competing interests: No competing interests

    30 October 2020
    Elizabeth Hart
    Independent person investigating the over-use of vaccine products and conflicts of interest in vaccination policy
    Adelaide, Australia

  2. Simon, as you say it was an overlong question. Your question was the one that starts “My question, therefore,. . .”

    I am 100% with you on defying the dictates, and will be doing so again.

    Elizabeth Hart, I really enjoyed Adelaide in 1990, staying at Glenelg watching the pelicans – which we don’t have in England.

    Australia seems to have become a testing ground for how far ordinary people can be pushed in this obvious clampdown on human rights. We in Birmingham are the human guinea-pigs in this experiment for finding a vaccine for a virus that has not been isolated in purified conditions or identified as being unique. There might be one or two ideas you could use from this piece I wrote for OffGuardian.

    https://off-guardian.org/2020/10/29/incentivised-vaccine-trials-kill-or-maim-a-friend-and-get-100/

    1. Hi John, yes, things have been very sinister here in Australia for some time…
      The No Jab, No Pay law was enacted here in 2016. This is a coercive vaccination law to ensure children are vaccinated. Of course many support children being vaccinated. The problem is, the vaccination schedule is increasing at an alarming rate, including revaccinations. And these are products…lucrative products….
      It’s interesting that News Corp Australia tabloids were behind the campaign for coercive vaccination in Australia, with their No Jab, No Play campaign, which was obligingly adopted as policy by politicians across the political spectrum. What wasn’t disclosed at the time is that News Corp Australia, which is a subsidiary of the Murdoch-run News Corp, is a corporate partner of the Murdoch Children’s Research Institute, an organisation involved in vaccine research and development, i.e. a very serious conflict of interest…
      The Murdoch Children’s Research Institute, originally the Murdoch Institute, was founded with the support of Rupert Murdoch’s mother Dame Elisabeth Murdoch.
      Conflicts of interest in vaccination policy are very important to consider, including now, with the push for coronavirus vaccine products.
      If you’re interested to consider some background, here’s the link to presentation on conflicts of interest, presented at the citizens’ Sydney Vaccination Conference in 2018: https://www.youtube.com/watch?v=atKeooIrHE8
      The transcript of my presentation is accessible via this link: https://elizabethhart.files.wordpress.com/2018/07/conflicts-of-interest-in-vaccination-policy-e-hart.pdf

  3. In individual countries around the world legal struggles against lockdowns ensue. However, the most important question is not being asked – who’s issuing the orders to lockdown and why?

    It seems there’s a well coordinated global instruction to impose restrictions on every country, so there’s no point winning individual legal battles if the instructions for restrictions keep coming again and again in waves. A sea wall must be built.

  4. Dear Editor
    Thank you for this!

    I continue to follow my own instincts and personal risk assessment of any current situation. Choosing whether or not to wear a mask, who I meet, where & when, and refusing a vaccine.
    Any fear I have is not of the virus but of the infringement of our civil liberties and of the majority of the population who are surrendering so willingly to these restrictions.
    It is clear to me that lockdowns do not work. The virus cannot be ‘controlled’.

    Other serious infections are present most of the year. In August last year I caught a virus from my son. We were both pretty ill with various symptoms, fatigue and a cough that lasted for 10 weeks (surprisingly similar to what is now being called ‘long covid’).

    In 2014/15 I believe from my research that there were 28,000 excess deaths from seasonal flu. There were no scaremongering headlines or mention of lockdowns or social distancing. Only the usual media stories predicting that hospitals would be overwhelmed. We didn’t clap the NHS or call them heroes. There were no slogans like ‘stay safe’ (in the corner of the tv screen) ‘protect’ the NHS’, ‘keep your distance’ etc.

    If the government could only trust the population to take advice on looking after ourselves, each other, especially the older and vulnerable and help the younger people to do the same: we would have been able to continue normal life without fear, lockdown or protest.
    All the people I know in my community, neighbours, shops etc and many of my friends and family have been well and continue to be so. I acknowledge the seriousness of this virus for some people but for the majority it can be relatively mild.

    I have only a small group of like minded friends that are willing to enter into a debate or to scrutinise or question the hidden, slightly sinister and maverick behaviour of members of the government. By others I am regarded as slightly mad or dangerous to be with. I can only observe that, before covid we didn’t trust the government or the media so why would we trust them now?

    Ruth Piper – Artist/painter
    Curious independent observer and researcher into our current unprecedented ‘state of exception’

  5. This is excellent. However, I do not quite understand the following, ‘including that a draft be laid before Parliament before they are made, or if not within 7 days of having been made, and must be reviewed every 30 days for approval, and can be amended or revoked by Parliament at any time.’
    Some of the Statutory Instruments relating to the coronavirus have come into effect before Parliament has even seen them, but we are told that under the Civil Contingencies Act they could have been in effect for seven days before Parliament saw them. Is this not worse?
    I understand what is meant by ‘reviewed every 30 days,’ but not ‘reviewed for approval every 30 days.’
    I take it that if I wish to quote the words of Lord Sumption, I need no permission.

    1. I quote from Lord Sumption’s lecture: ‘Emergency regulations under the Civil Contingencies Act must be laid before Parliament in draft before they are made. If the case is too urgent for that, they must be laid before Parliament within seven days or they will lapse. If necessary, Parliament must be recalled. Even if the regulations are approved, the regulations can remain in force for only 30 days unless they are renewed and reapproved. Unusually, Parliament is authorised to amend or revoke them at any time.’ If you doubt his summary (and I’m not saying you shouldn’t), the relevant provisions are in Part 2 (Emergency Powers) of the Civil Contingencies Act 2004, especially sections 20-23 on the power, conditions, scope and limitations to make, for making and of emergency powers, and sections 26-27 on their duration and scrutiny. I’ve added a link to the legislation for those who wish to read the text.

      1. Thank you for both your replies. Please pardon my lack of observation. It is not that I am a doubting Thomas, but that I too write articles in a small way, and in relaying and interpreting information need to be sure that it is correct and that I have understood it myself.

      2. Doubting Thomas is the patron saint of Western humanism. Blessed may be they who have not seen yet have believed, but I don’t want them running our country or our national health service. It is vitally important that those of us who challenge those who haven’t seen the data yet continue to believe the Government have first validated the accuracy of what we report and understand what it means. Not being an epidemiologist, it took me a while to understand why even a 1% false positive rate in PCR tests can produce false positives in 100% of positive tests; but now I do understand why I hope I can relay it to my fellow laymen accurately and clearly. The same applies with why the Secretary of State for Health is not empowered by the Public Health Act to make the dozens of coronavirus-justified Regulations he has imposed on the nation. Please keep doubting, Adrian.

      3. A reason for not using the Civil Contingencies Act 2004 lies in its definition of an emergency.
        ‘(1) In this Part “emergency” means—
        (a) an event or situation which threatens serious damage to human welfare in a place in the United Kingdom,
        (b) an event or situation which threatens serious damage to the environment of a place in the United Kingdom, or
        (c) war, or terrorism, which threatens serious damage to the security of the United Kingdom.’

  6. You state that ‘under paragraph 2, such restrictions or requirements may only be made if (a) “the regulations are made in response to a serious and imminent threat to public health”, or (b) “imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed”. Paragraph 2 of 45D in fact reads, ‘(2)Regulations under section 45C may not include provision enabling the imposition of a restriction or requirement by virtue of subsection (3)(c) of that section unless the regulations provide that a decision to impose such a restriction or requirement may only be taken if the person taking it considers, when taking the decision, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.’ Which Paragraph 2 are you quoting?

  7. South Australia, where I live, is going into an extreme lockdown for six days from midnight tonight.
    People will be essentially locked up for six days, including being barred from outdoor exercise. Masks will be required in all areas outside of the home, no supporting evidence provided.
    Obviously people are being denied freedom of movement and association. A very shocking political development.
    This extreme lockdown has been deemed necessary because there are 22 ‘cases’ directly linked to a cluster, and a further seven suspected cases.
    No information has been provided on the definition of ‘cases’, i.e. whether they’re a positive test with no symptoms…ranging to ICU care. We still don’t know the definition of a case.
    According to an ABC news report “The Chief Public Health Officer Nicola Spurrier says the particular strain of the virus is breeding “very, very rapidly” with a short incubation period of about 24 hours, and with infected people showing only minimal symptoms“. (My emphasis.)
    Basically nearly everything except essential services is closing down for the next six days. Schools, universities, pubs, cafes, elective surgery, all outdoor sport or physical activity (no outdoor exercise allowed), construction industry and factories other than food and medical products. Aged care and disability residential facilities will be in lockdown. Weddings and funerals will be banned for six days. Regional travel is not approved. Holiday homes will not be available for lease or rental.
    All of this was only advised late this morning, so now there is panic-buying across the state. People are scrambling around to find masks, queuing outside shopping centres and petrol stations. There are likely to be shortages with the great fear being created, toilet rolls are already gone of course…
    People are turning out in droves to be tested. They’ll probably all rush off to the shops afterwards to try and stock up for the lockdown, so if any of these people do have the virus, it could be spread via the shops etc.
    What is the way ahead with this drastic action?

    1. It is interesting that the Governments of Australia and New Zealand, which are generally liberal societies with, like the UK, little history of protest in recent times, have imposed some of the most severe restrictions on their populations with even less justification for doing so than in the UK. 907 deaths in Australia have been attributed to COVID-19 this year, compared to 17,500 death from heart disease and 14,000 from dementia. The figures in New Zealand are even more absurd, with just 25 deaths attributed to COVID-19. In the UK we generally try out contentious legislation on Scotland first, for instance with the Poll Tax in 1989, to see how the population reacts, and the same is being done now, with the Scotland Government competing with England to see who can be the most Puritan (and there’s only one winner in that battle). I think Australia and New Zealand are serving as the world’s Scotland, as testing grounds to see how politically ignorant populations in Western ‘democracies’ react to the Great Reset.

      I’m not sure what you mean by asking what is the way ahead with this drastic action. If you mean where are our societies heading, it’s into the totalitarianism of the biosecurity state in which, on the one hand, the power of the state over us is hugely increased and expanded into the surveillance, monitoring and control of our biological life, and, on the other, the role of the state is taken over by non-governmental organisations like the WHO, the WEF, the UN or the EU governed by global corporations. If you mean what is the way ahead for us, the subjectivities whose bare lives are being traded on global markets, there is only one way.

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