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.
1. Government by Decree
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.’
2. Ultra Vires the Public Health Act
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 by now 80 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 45C 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 80 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:
Health Protection (Coronavirus) Regulations 2020
It beggars belief that every one of these 80 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.
3. The Moral Rights of Government
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.
Architects for Social Housing
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