No medical or other crisis should be reason for the executive to be given absolute powerby David Allen Green / May 5, 2020 / Leave a comment
The law no longer just criminalises anti-social behaviour. It now criminalises normal social behaviour. Regulations imposed this spring at a stroke removed freedom of movement, freedom of assembly and freedom of worship. The usual liberties of every citizen are now potential criminal offences. This is the most fundamental of shifts, and it has happened without proper parliamentary scrutiny: these sweeping restrictions were imposed in England by ministerial fiat in March 2020 and had still not been approved by MPs a month later.
The reason, of course, is the current coronavirus emergency requires social distancing to be enforced by the police having coercive powers. But it is an extraordinary situation, and perhaps one where the implications are still not recognised.
Does it matter? Some will shrug, saying there is a national crisis, and that anything goes by all means necessary, even the creation of the criminal offence with the widest scope in national history. Irksome dissent can be silenced with a frowning “don’t you know there is a virus on?” There will be many reading this article, as there are many in society, who would say that such restrictions are a price worth paying if they can save lives, and that any legalities are mere niceties that do not matter.
These people have a point. The legal and constitutional basis of the lockdown is less important than the lives that may be saved. And the very reason why we have emergency legislation is for, well, emergencies, and this is one of them. Yet this should not mean that anything goes, and that grand questions of legitimacy and mundane issues of simple legal efficacy should be ignored. They may be less urgent than the lives at risk, but constitutional and legal propriety still matters.
The UK is a parliamentary democracy and must still be one when these days pass. Emergencies can be abused by knaves, and emergency legislation can turn out to have unexpected consequences. The Enabling Act that followed the Reichstag fire in 1933 is an extreme example of bad things that happen with law when attention is diverted and scrutiny extinguished.
No medical or other crisis should be reason for the executive to be given absolute power, including to potentially criminalise the population at large.
Of course, the regulations provide for a defence of “reasonable…