During the Covid-19 pandemic, the British state has exercised coercive powers over itscitizens on a scale never previously attempted. It has taken effective legal control,enforced by the police, over the personal lives of the entire population: where they couldgo, whom they could meet, what they could do even within their own homes. For threemonths it placed everybody under a form of house arrest, qualified only by their rightto do a limited number of things approved by ministers. All of this has been authorisedby ministerial decree with minimal Parliamentary involvement. It has been the mostsignificant interference with personal freedom in the history of our country. We havenever sought to do such a thing before, even in wartime and even when faced with healthcrises far more serious than this one.
It is customary for those who doubt the legality or constitutional propriety of thegovernment’s acts to start with a hand-wringing declaration that they do so with a heavyheart, not doubting for a moment the need for the measures taken. I shall not follow thattradition. I do not doubt the seriousness of the epidemic, but I believe that history willlook back on the measures taken to contain it as a monument of collective hysteria andgovernmental folly. This evening, however, I am not concerned with the wisdom of thispolicy, but only with its implications for the government of our country. So remarkablea departure from our liberal traditions surely calls for some consideration of its legaland constitutional basis.
The present government came to office after the general election of December2019 with a large majority and a good deal of constitutional baggage. It had not had anabsolute majority in the previous Parliament, which had rejected its policy on the termsfor leaving the European Union. It had responded to Parliamentary opposition withindignation. The Attorney-General told the House of Commons in September 2019 that they were unfit to sit, surely one of the more extraordinary statements ever made inpublic by a law officer of the Crown. The government had endeavoured to avoidParliamentary scrutiny of their negotiations with the EU by proroguing it, and had beenprevented from doing so by the Supreme Court’s decision in Miller (No. 2). The groundfor the Court’s intervention was that the prorogation impeded the essential function ofParliament in holding the government to account. This decision was certainlycontroversial in expressing as a rule of law something which had traditionally beenregarded as no more than a political convention, although I have no doubt for my partthat the Court was right.
But whether it is properly classified as law or convention, theconstitutional principle which the court stated was surely beyond question.Governments hold power in Britain on the sufferance of the elected chamber of thelegislature. Without that, we are no democracy. As the court pointed out, thedependence of government on Parliamentary support was the means by which ‘thepolicies of the executive are subjected to consideration by the representatives of theelectorate, the executive is required to report, explain and defend its actions, and citizensare protected from the arbitrary exercise of executive power.’
The present governmenthas a different approach. It seeks to derive its legitimacy directly from the people,bypassing their elected representatives. Since the people have no institutionalmechanism for holding governments to account, other than Parliament, the effect is thatministers are accountable to no one, except once in five years at general elections.
Within four months of the election, the new government was faced with thecoronavirus pandemic. The minutes of the meetings of SAGE, its panel of expertscientific advisers, record that shortly before the lockdown was announced thebehavioural scientists advised against the use of coercive powers. ‘Citizens should betreated as rational actors, capable of taking decisions for themselves and managingpersonal risk,’ they had said. The government did not act on this advice. Encouragedby the public panic and the general demand for action, it opted for a course which itbelieved would make it popular. It chose coercion. For this, it needed statutory powers.There were three relevant statutes.
The Coronavirus Act was passed specifically to deal with Covid-19. This heftydocument of 348 pages with 102 sections and 29 schedules was pushed through all itsstages in a single day in each House as the lockdown was announced. In the timeavailable, no serious scrutiny of its terms can have been possible. The Act was primarilyconcerned to enlarge the government’s powers to marshal the medical resources of thecountry and to authorise additional public expenditure.
But tucked away in Schedules21 and 22 were additional powers to control the movement of people. Schedule 21authorises public health officials to screen and test people for infectious diseases. Theyare given extensive powers to control the movement of any one found to be infectiousand to call on the police to enforce their directions. Schedule 22 confers on the Secretaryof State extensive powers to forbid ‘events’ or ‘gatherings’ and to close premises forthe purpose of controlling the transmission of Covid-19. For present purposes, however,the important point to note is that apart from the power to prevent events or gatherings,the Act conferred no power to control the lives of healthy people. The measure stood ina long tradition dating back many centuries by which infectious diseases werecontrolled by the confinement of infectious people, not by the confinement of healthyones.
A power to confine healthy people was, however, conferred by another Act, theCivil Contingencies Act 2004. The Civil Contingencies Act is the only statutespecifically designed for emergencies serious enough to require the kind of measuresthat we have had. It authorises ministers to make regulations to deal with a wide varietyof “events or situations”, including those which threaten ‘serious damage to humanwelfare’. These are defined so as to include things which may cause loss of life orillness. The regulation-making power could not be wider. Ministers are authorised todo by regulation anything that Parliament could do by statute, i.e. anything at all. Inother words, it authorises government by executive decree. Specific examples given inthe Act include restricting the movement or assembly of people and controlling travel.In enacting these provisions, Parliament recognised that emergency legislation of thiskind is constitutionally extremely dangerous. It therefore provided for the powers to beexercisable only under stringent Parliamentary control. I shall return to that.
The government chose not to include a general lockdown power in theCoronavirus Act and not to use the power that it already had under the CivilContingencies Act. Instead it resorted to the much more limited powers conferred byPart IIA of the Public Health (Control of Disease) Act 1984, as amended in 2008.Section 45C(1) authorises the Secretary of State to make regulations ‘for the purposeof preventing, protecting against, controlling or providing a public health response tothe incidence or spread of infection or contamination in England and Wales.’
Thatsounds very wide, but the problem about it is that the power is couched in whollygeneral terms. It is a basic constitutional principle that general words are not to be readas authorising the infringement of fundamental rights. The best known formulation ofwhat has been called the ‘principle of legality’ comes from the speech of LordHoffmann in Ex parte Simms  2 AC 115, 131. His words are well known, butthey are so apposite as to be well worth repeating. Parliament, he said, ‘must squarely confront what it is doing and accept the political cost. Fundamentalrights cannot be overridden by general or ambiguous words. This is because there is toogreat a risk that the full implications of their unqualified meaning may have passedunnoticed in the democratic process. In the absence of express language or necessaryimplication to the contrary, the courts therefore presume that even the most generalwords were intended to be subject to the basic rights of the individual. In this way thecourts of the United Kingdom, though acknowledging the sovereignty of Parliament,apply principles of constitutionality little different from those which exist in countrieswhere the power of the legislature is expressly limited by a constitutional document.’
There are few more fundamental rights than personal liberty. The effect of the principleof legality is that those proposing its curtailment must be specific about it and take thepolitical heat.So what specific powers to curtail personal liberty does the Public Health Actconfer?
The answer is that its main purpose is to confer extensive powers on magistratesto make orders in relation to particular people thought to be infectious or specificpremises thought to be contaminated. Magistrates can make orders disinfectinginfectious people, quarantining or isolating them or removing them to hospitals, amongother things. They can order the closure or decontamination of contaminated premises.Ministers are given very limited powers in this area, only two of which were relevantto the lockdown or to current measures of social control. Under Section 45C they have a specific power to make regulations controlling ‘events or gatherings’. A ‘gathering’ is not defined, but the context shows it to be concerned with more substantial assembliesthan ordinary social interchange in peoples’ homes. The object was to deal with threatsto public order. Otherwise the only specific power conferred on ministers is a power todo some of the things that a magistrate could do. The result is that ministers can makeregulations controlling people thought to be infectious. There is no specific power underthe Act to confine or control the movements of healthy people. To interpret it asconferring such a power would not only be inconsistent with the principle of legality. Itwould also be contrary to the whole tenor of this part of the Act. It is axiomatic that ifa statute deals in terms with the circumstances in which a power can be exercised so asto curtail the liberty of the subject, it is not open to a public authority to exercise thepower in different or wider circumstances. The courts will I suspect be tempted to givethe government more leeway than they are entitled to. But on well established legalprinciples, the powers under the Public Health Act were not intended to authorisemeasures as drastic as those which have been imposed.Why did the government not include a lockdown power in the Coronavirus Actgiven that it was drafted at the inception of the crisis?
The most plausible explanationis that it thought that there might be difficulty in getting such a thing through Parliamentwithout further debate and possibly amendment. Why did they not use the CivilContingencies Act, which was already on the statute book? The most plausible answeris that the Civil Contingencies Act required a high degree of Parliamentary scrutinywhich ministers wished to avoid. Emergency regulations under the Civil ContingenciesAct must be laid before Parliament in draft before they are made. If the case is too urgentfor that, they must be laid before Parliament within seven days or they will lapse. Ifnecessary, Parliament must be recalled. Even if the regulations are approved, theregulations can remain in force for only 30 days unless they are renewed andreapproved. Unusually, Parliament is authorised to amend or revoke them at any time.By comparison the degree of scrutiny provided for under the Public Health Act islimited. In urgent cases, regulations under the Public Health Act have provisionalvalidity, pending Parliamentary approval, for 28 days, and that limit is extended for any period when Parliament is not sitting. Parliament cannot amend them, and once it hasapproved them it cannot revoke them. They remain in force for whatever periodministers may decide.
These differences in the level of Parliamentary scrutiny wereremarked upon at the time when the powers in question were added to the Public HealthAct in 2008. The government of the day told the Constitution Committee of the Houseof Lords that the lesser degree of Parliamentary scrutiny was appropriate because thepowers under the Public Health Act were not intended to authorise anything veryradical. They were mainly directed at controlling the behaviour of infected people, andthen only in cases where the proposed measure was urgent but ‘minor in scope andeffect.’ The problems begin with the very first days of the lockdown. In his televisedpress conference of 23 March, the Prime Minister described his announcement of thelockdown as an ‘instruction’ to the British people. He said that he was ‘immediately’ stopping gatherings of more than two people in public and all social events exceptfunerals.
A number of police forces announced within minutes of the broadcast that theywould be enforcing this at once. The Health Secretary, Mr. Hancock, made a statementin the House of Commons the next day in which he said: ‘these measures are not advice;they are rules.’ All of this was bluff. Even on the widest view of the legislation, thegovernment had no power to give such orders without making statutory regulations. Nosuch regulations existed until 1 p.m. on 26 March, three days after the announcement.The Prime Minister had no power to give ‘instructions’ to the British people, andcertainly no power to do so by a mere oral announcement at a Downing Street press conference. The police had no power to enforce them. Mr Hancock’s statement in theHouse of Commons was not correct. Until 26 March the government’s statements werenot rules, but advice, which every citizen was at liberty to ignore.To complain about the gap of three days during which the government pretendedthat the rules were in effect when they were not, may strike some people as pedantic.The regulations were eventually made, albeit late. But it revealed a cavalier disregardfor the limits of their legal powers which has continued to characterise the government’sbehaviour.
Over the following weeks the government made a succession of press statements containing what it called ‘guidance’, which went well beyond anything inthe regulations. These statements had no legal status whatever, although this fact wasnever made clear. The two-meter distancing rule, for example, never had the force oflaw in England. Many police forces set about enforcing the guidance nonetheless, untilthe College of Policing issued firm advice to them that they had no business doing so.Why did the government, once they had announced the lockdown on 23 Marchwait for three days until 26th before making their regulations, and then resort to theemergency procedure on the ground that it was so urgent that Parliament could not beconsulted in advance? The obvious answer, I am afraid, is that Parliament adjourned forthe Easter recess on 25th. They deliberately delayed their urgent regulations so thatthere would be no opportunity to debate them before the recess. The period of 28 daysbefore any kind of Parliamentary scrutiny was required was thus extended by the 21days of the recess, i.e. to the middle of May.
This is not the only respect in which the level of Parliamentary scrutiny of theexecutive has been curtailed. The Coronavirus Act authorises any payments connectedwith coronavirus without limit and without any form of advance Parliamentary scrutiny.The Contingencies Fund Act, which passed through every stage in the House ofCommons on the day after the Coronavirus Bill, authorised an increase in the statutorymaximum in the Contingencies Fund, from to 2 per cent of the previous year’sauthorised expenditure, to 50 per cent. The result was to make an additional £266 billionavailable to the government with no advance Parliamentary scrutiny. These measuresdeparted from a century and a half of constitutional principle by which Parliamentcontrols exactly how public funds are spent.
There was a number of other steps radically affecting the rights of individuals,which the government took without any Parliamentary sanction. Most of these involvedexploiting existing regulatory regimes. The two metre distancing rule, for example, wasuncritically adopted by the Health and Safety Executive. As a result, a number ofbuilding sites and factories where it was impractical to observe it were required to closealthough not included in the closure orders made under statutory powers. Perhaps themost remarkable example concerns the steps which the government took to deprive people of access to medical and dental services. The provision of medical and dentalservices was expressly excluded from the closure orders made under the Public HealthAct. But a combination of government advice and government-inspired pressure fromregulators was used to limit access to general practitioners. They were required toconduct video triages and refer serious cases to hospitals while telling other cases towait. This has had a serious impact on the diagnosis and early treatment of far moremortal diseases than Covid-19, notably cancer.
More drastic still were the steps takento close down dental practices. On 25 March the Chief Dental Officer, a governmentofficial, published a statement referring to the Prime Minister’s announcement of thelockdown and requiring dentists to stop all non-urgent activity. In reality, they wererequired to stop even urgent activity. Their role was limited to carrying out a videotriage of patients. Urgent cases were to be referred to a small number of local urgentdental units which essentially performed extractions. Treatment was refused in othercases. This direction, which had no statutory basis, left many people in pain ordiscomfort and threatened a significant number of dental practices with insolvency.Even after it was lifted at the beginning of June, distancing rules were imposed whichseriously reduced the number of patients that a dentist could see and made many dentalpractices financially unviable.
This is a serious matter, because the government’s useof non-statutory procedures like these escapes Parliamentary scrutiny. Parliament may,for example, be taken to have approved, albeit seven weeks late, the exception in theHealth Protection Regulations which allowed the provision of dental services tocontinue. Parliament has never had the opportunity to approve the instruction of theChief Dental Officer to the opposite effect.These events give rise to concern on a number of counts. The most draconian ofthe government’s interventions with the most far-reaching economic and social effectshave been imposed under an Act which does not appear to authorise them. The sheerscale on which the government has sought to govern by decree, creating new criminaloffences, sometimes several times a week on the mere say-so of ministers, is inconstitutional terms truly breathtaking. The government has routinely made use of theexceptional procedure authorising it in urgent cases to dispense with advance Parliamentary approval, even where the measure in question has been mooted for daysor weeks. Thus the original lockdown was imposed without any kind of Parliamentaryscrutiny until the middle of May, seven weeks later. Thereafter, there was little scopefor further scrutiny.
Even the powers which the government purported to exercise weregratuitously expanded by tendentious and misleading ‘guidance’, generally announcedat press conferences.A special word needs to be said about the remarkable discretionary powers ofenforcement conferred on the police. The police received power to enforce thelockdown regulations by giving directions to citizens which it was a criminal offence todisobey. Fixed penalty notices are normally authorised in modest amounts for minorregulatory infractions, parking and the lesser driving offences.
The government’sRegulations, however, authorised them for a great variety of newly created offences andsometimes in very large amounts. On 26 August the government introduced by decreean offence of ‘being involved’ in a gathering exceeding thirty people, and empoweredany policeman in the land to issue a fixed penalty notice of £10,000. This sum, enoughto ruin most people, was far in excess of any fine that would be imposed by a court forsuch an offence. The power, which was originally advertised as being intended to dealwith ‘raves’ has of course been widely exercised for other purposes. In particular, it hasbeen used to suppress protests against the government’s coronavirus policies. On 30August, the police served a £10,000 fixed penalty notice on Mr Piers Corbyn foraddressing a rally against masks in Trafalgar Square. The regulations contain anexception for political protest, provided that the organisers have agreed a riskassessment and taken reasonable steps to ensure safety. On 26 September the policebroke up a demonstration against the government’s measures, whose organisers hadagreed a risk assessment and had taken reasonable steps. The police claim to have donethis because some of the demonstrators had not acted in accordance with thearrangements made by the organisers. They cleared the square using batons withconsiderable violence, injuring some 20 people who were guilty of nothing other thanattending an apparently lawful protest. There is a noticeable process of selectioninvolved in these actions. No such fines, arrests or assaults have apparently been seen in other demonstrations, such as those organised by Black Lives Matter, or Extinction Rebellionwhich did not observe social distancing but were thought to have greater public support.The Mayor of London applauded the police action. The silence from civil rightsorganisations such as Liberty was deafening.
The police’s powers of summary arrest are regulated by primary legislation, thePolice and Criminal Evidence Act 1984. Under Regulation 9(7) of the originallockdown regulations, the government purported to amend that Act by enlarging theirpowers of arrest so that they extended to any case in which a policeman reasonablybelieved that it was necessary to arrest a citizen to maintain public health. I need hardlysay that the Public Health Act confers no power on ministers to amend other primarylegislation in this way.In fact, the police substantially exceeded even the vast powers that they received.In the period immediately after the announcement of the lockdown, a number of ChiefConstables announced that they would stop people acting in a way which the regardedas inessential, although there was no warrant for this in the regulations. One of themthreatened to go through the shopping baskets of those exercising their right to obtainsupplies, so as to ensure that they were not buying anything that his constables mightregard as inessential. Other forces set up road blocks to enforce powers that they didnot have. Derbyshire police notoriously sent up surveillance drones and published onthe internet a film clip denouncing people taking exercise in the Derbyshire fells,something which people were absolutely entitled to do.
When I ventured to criticisethem in a BBC interview for acting beyond their powers, I received a letter from theDerbyshire Police Commissioner objecting to my remarks on the ground that in a crisissuch things were necessary. The implication was that in a crisis the police were entitledto do whatever they thought fit, without being unduly concerned about their legalpowers. That is my definition of a police state.
Many people think that in an emergency public authorities should be free tobehave in this way because the ordinary processes of lawmaking are too deliberate andslow. I do not share this view. I believe that in the long run the principles on which weare governed matter more than the way that we deal with any particular crisis. They are particularly important in a country like ours in which many basic rights and libertiesdepend on convention. They depend on a recognition not just that the government mustact within its powers, but that not everything that a government is legally entitled to dois legitimate.
The Public Health Act requires any exercise of its regulation-makingpowers to be proportionate. The government has included in every regulation to date aformulaic statement that it is. But its actions speak differently. Its public position isexplicable only on the basis that absolutely anything is justifiable in the interest ofhindering the transmission of this disease. I reject that claim.
Powers as wide andintrusive as those which this government has purported to exercise should not beavailable to a minister on his mere say-so. In a society with the liberal traditions of ours,the police ought not to have the kind of arbitrary enforcement powers that they havebeen given, let alone the wider powers that they have not been given but have exercisedanyway. These things should not happen without specific Parliamentary authority, inthe course of which the government can be required to explain its reasons and theevidence behind them in detail, and its proposals can be properly debated, amended orrejected by a democratic legislature. Their imposition by decree, even if the decrees arelawful, is not consistent with the constitutional traditions of this country.
There are, I would suggest, at least three lessons to be learned from this dismalstory.The first lesson is one to which I drew attention in my BBC Reith lectures lastyear. Our society craves security. The public has unbounded confidence, which noamount of experience will dent, in the benign power of the state to protect them againstan ever wider range of risks. In Britain, the lockdown was followed by a brief period inwhich the government’s approval ratings were sky-high. This is how freedom dies.When societies lose their liberty, it is not usually because some despot has crushed itunder his boot. It is because people voluntarily surrendered their liberty out of fear ofsome external threat.
Historically, fear has always been the most potent instrument ofthe authoritarian state. This is what we are witnessing today. But the fault is not just inour 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 any one who steps out of line, including manyresponsible opponents of this government’s measures and some notable scientists whohave questioned their empirical basis. These are the authentic ingredients of atotalitarian society.
So, I regret to say, is the propaganda by which the government has to some extentbeen able to create its own public opinion. Fear was deliberately stoked up by thegovernment: the language of impending doom; the daily press conferences; the alarmistprojections of the mathematical modellers; the manipulative use of selected statistics;the presentation of exceptional tragedies as if they were the normal effects of Covid-19;above all the attempt to suggest that that Covid-19 was an indiscriminate killer, whenthe truth was that it killed identifiable groups, notably those with serious underlyingconditions and the old, who could and arguably should have been sheltered withoutcoercing the entire population.
These exaggerations followed naturally from the logicof the measures themselves. They were necessary in order to justify the extreme stepswhich the government had taken, and to promote compliance. As a strategy, this wascompletely successful. So successful was it that when the government woke up to thedamage it was doing, especially to the economy and the education of children, it foundit difficult to reverse course. The public naturally asked themselves what had changed.The honest answer to that question would have been that nothing much had changed.The threat had not been fairly presented in the first place. Other governments, inGermany, in France, in Sweden and elsewhere, addressed their citizens in measuredterms, and the level of fear was lower. It is not fair to criticise the government for themere fact that the death toll in Britain is the second highest in Europe. There are toomany factors other than government action which determine the mortality of Covid-19.But it is fair to blame them for the fear which means that Britain seems likely to suffergreater economic damage than almost every other European country.
The ease with which people could be terrorised into surrendering basic freedomswhich are fundamental to our existence as social beings came as a shock to me in March2020. So has much of the subsequent debate. I certainly never expected to hear the wordlibertarian, which only means a believer in freedom, used as a term of abuse. Perhaps I should have done. For this is not a new problem. Four centuries ago the political theoristThomas Hobbes formulated his notorious apology for absolute government. The basisof human society, he argued, is that people have no right to be free, for they completelyand irrevocably surrender their liberty to an overpowering state in return for security.In an age obsessed with escaping from risk, this has become one of the major issues ofour time.I have criticised the way in which the government has invaded civil liberties withlimited Parliamentary scrutiny or none. But of course Parliamentary scrutiny is notenough unless Parliament is to willing to live up to its high constitutional calling. It hasto be ready to demand rational explanations of ministerial actions and to and to votedown regulations if they are not forthcoming.
There is unfortunately little evidence ofthis. The public’s fear effectively silenced opposition in the House of Commons. Theofficial opposition did not dare to challenge the government, except to suggest that theyshould have been even tougher even quicker. Parliament allowed the Coronavirus Actto be steam-rollered through with no real scrutiny. It agreed to go into recess at thecritical point in March and April when the need for active scrutiny of government wasat its highest. When it returned, it meekly accepted government guidance on socialdistancing, and submitted to a regime under which only 50 out of the 650 memberscould be in the Chamber at any one time with up to 120 more participating remotely onscreens. This has meant that instead of answering to a raucous and often querulous anddifficult assembly, whose packed ranks can test governments with the largest majorities,ministers had an easy ride. The exclusion of most of the House from participating in thecore activities for which they had been elected by their constituents, was a mostremarkable abdication of the House’s constitutional functions. It has reduced itsscrutiny of the government to the status of a radio phone-in program.However, the basic problem is even more fundamental. Under its standingorders, the House of Commons has no control over its own agenda. Its business isdetermined by the Leader of the House, a government minister, and by the Speaker.Backbenchers, however numerous, have no say and the official opposition not muchmore. In this respect the Commons is unlike almost every other legislature in the world.
Other legislatures determine their own agenda through bipartisan committees or ruleswhich entitle members with a minimum level of support to move their own business.When, in September, MPs began to kick back against the government’s dictatorialmeasures, the only way that they could do it was to tack a proviso onto a resolutionauthorising the continuance of the Coronavirus Act, requiring the government to obtainParliamentary approval of regulations made under the Public Health Act. The Speaker,probably rightly, ruled this out as an abuse. But it should not have been necessary toresort to devices like this. The standing orders date from another age when there was ashared political culture at Westminster which made space for dissenting views, and ashared respect for the institution of Parliament. The procedures of the House are not fitfor a world in which the government seeks to shove MPs into the margins. SpeakerHoyle was surely right to accuse ministers of despising Parliament.
But it will take morethan schoolmasterly lectures to address the problem. Over the past few decades, theHouse of Commons has lost much of the prestige and public respect that it once enjoyed.Mr Cox’s strictures against Parliament in September 2019 were outrageous. ButParliament will richly deserve them unless it can rise to the challenge of controlling themost determined attempt by any modern government to rule by decree.So much for the first lesson of recent events.
The second is a variant of LordActon’s famous dictum that power corrupts and absolute power corrupts absolutely.Ministers do not readily surrender coercive powers when the need has passed. The ScottInquiry into the Matrix Churchill scandal, which reported in 1996, drew attention to abroad class of emergency powers which had been conferred on the government at theoutset of the Second World War until such time as His Majesty should declare by Orderin Council that the war had ended. These had been kept in force by the simple deviceof ensuring that no such Order in Council was ever placed before His Majesty. Theywere still being used in the 1970s and 1980s on the footing that the Second World Warwas still in progress, for purposes quite different from those originally envisaged.Likewise, the powers conferred on ministers and the police by the Terrorism Acts of2000 and 2006 have been employed not just to combat terrorism but for a variety ofother purposes, including the control of peaceful demonstrations, the enlargement of police stop and search powers to deal with ordinary non-terrorist offences, and thefreezing of the assets of Icelandic banks for the protection of their UK depositors.
It willtherefore surprise no one that the present government, having announced on 23 Marchthat the lockdown would last until the NHS was able to cope with peak hospitalisations,should have continued them in May and June after this objective had been achieved.Ministers did this notwithstanding the warning of their scientific advisers in reportssubmitted to SAGE in February and March that a lockdown could delay infections anddeaths but not stop them. Once again, fear persuaded people to accept the surrender oftheir liberty, even when the lockdown was no longer capable of the objective originallyclaimed for it. If the government had made its regulations under the Civil ContingenciesAct, as it should have done, they would have had to be reapproved by Parliament every30 days. Even with a relatively supine House of Commons, it is permissible to hope thatParliament would at least have called for a coherent explanation of this pointless andprofoundly damaging decision.The third and last lesson which I want to draw from these events is thatgovernment by decree is not only constitutionally objectionable. It is usually badgovernment.
There is a common delusion that authoritarian government is efficient. Itdoes not waste time in argument or debate. Strongmen get things done. Historicalexperience should warn us that this idea is usually wrong. The concentration of powerin a small number of hands and the absence of wider deliberation and scrutiny enablesgovernments to make major decisions on the hoof, without proper forethought, planningor research.
Within the government’s own ranks, it promotes loyalty at the expense ofwisdom, flattery at the expense of objective advice. The want of criticism encouragesself-confidence, and self-confidence banishes moderation and restraint. Authoritarianrulers sustain themselves in power by appealing to the emotional and the irrational incollective opinion. The present government’s mishandling of Covid-19 exemplifies allof these vices.
Whatever one might think about the merits of its decisions, it isimpossible to think well of the process which produced them, which can only bedescribed as jerky, clumsy, inconsistent and poorly thought out. There is not, and neverhas been an exit plan or anything that can be described as a long-term strategy – only a series of expedients. The Public Accounts Committee of the House of Commonsreported in July that the lockdown was announced without any kind of cost-benefitanalysis or advance planning for its disruptive economic effects. The many relevantsocial and educational considerations were disregarded in favour of an exclusiveconcentration on public health issues and only some of those. These are all classicproblems of authoritarian government. It is habitually inefficient, destructive, blinkeredand ultimately not even popular.The British public has not even begun to understand the seriousness of what ishappening to our country.
Many, perhaps most of them don’t care, and won’t care untilit is too late. They instinctively feel that the end justifies the means, the motto of everytotalitarian government which has ever been. Yet what holds us together as a society isprecisely the means by which we do things. It is a common respect for a way of makingcollective decisions, even if we disagree with the decisions themselves. It is difficult torespect the way in which this government’s decisions have been made. It marks a moveto a more authoritarian model of politics which will outlast the present crisis. There islittle doubt that for some ministers and their advisers this is a desirable outcome.
Thenext few years is likely to see a radical and lasting transformation of the relationshipbetween the state and the citizen. With it will come an equally fundamental change inour relations with each other, a change characterised by distrust, resentment and mutualhostility. In the nature of things, authoritarian governments fracture the societies whichthey govern. The use of political power as an instrument of mass coercion is corrosive.It divides and it embitters. In this case, it is aggravated by the sustained assault on socialinteraction which will sooner or later loosen the glue that helped us to deal with earliercrises. The unequal impact of the government’s measures is eroding any sense ofnational solidarity. The poor, the inadequately housed, the precariously employed andthe socially isolated have suffered most from the government’s. Above all, the young,who are little affected by the disease itself, have been made to bear almost all the burden,in the form of blighted educational opportunities and employment prospects whoseeffects will last for years. Their resentment of democratic forms, which was alreadynoticeable before the epidemic, is mounting, as recent polls have confirmed.
The government has discovered the power of public fear to let it get its way. Itwill not forget. Aristotle argued in his Politics that democracy was an inherentlydefective and unstable form of government. It was, he thought, too easily subverted bydemagogues seeking to obtain or keep power by appeals to public emotion and fear.What has saved us from this fate in the two centuries that democracy has subsisted inthis country is a tradition of responsible government, based not just on law but onconvention, deliberation and restraint, and on the effective exercise of Parliamentary asopposed to executive sovereignty. But like all principles which depend on a sharedpolitical culture, this is a fragile tradition. It may now founder after two centuries inwhich it has served this country well. What will replace it is a nominal democracy, witha less deliberative and consensual style and an authoritarian reality which we will likea great deal less.
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This is an edited version of the the Cambridge Freshfields Annual Law Lecture, which Lord Sumption delivered on 27 October