From The Cambridge Humanities Review we publish this interesting, and topical, article by Francis Fitzgibbon QC.
Referring specifically to English law, but entirely relevant in Scotland also – where the creation and amendment of law by secondary legislation is an equally real, and equally problematic, issue – the article is an enlightening study of the exercise of authority in times of national crisis. There’s a lot of devil in the detail.
The Covid-19 crisis gives a fresh twist to the philosophical question posed by Ronald Dworkin: ‘Is Law a System of Rules?’ In the UK under Covid-19 we have had a torrent of legally enforceable rules, as well as official guidance, advice, and declarations by ministers. What has this done for the rule of law and human rights?
Since March 2020, the UK government has enacted legally enforceable rules by secondary legislation. It used powers in 100 Acts of Parliament (including the St Helena Act of 1833) and one surviving European Union Directive to lay 286 Covid-related Statutory Instruments (SIs) before Parliament (and counting), with minimal or no scrutiny by either House. Many have been repealed or amended as virus policy has developed; others have needed drafting errors to be corrected. Amended versions tend to look like this (from The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020):
(3) In regulation 5 (restrictions on participation in gatherings) […]
(b) in paragraph (3)—
(i) omit sub-paragraph (a);
(ii) in sub-paragraph (c)—
(aa) at the end of paragraph (v), omit “or”;
This sort of cannibalistic drafting typifies primary and secondary legislation in general. A member of the public who wants to know with precision what the law is may struggle, having to cross-refer to previous SIs, which may themselves be amended versions of their predecessors. This is not new: legislation in general often contains a mass of cross-referencing, amendments, and even repeals before the law comes into force. Judges have called the Criminal Justice Act 2003, for example, ‘labyrinthine’ and ‘astonishingly complex’. Sentencing statutes are notorious. According to Sir Brian Leveson giving judgment in a 2018 criminal appeal:
The complexity of sentencing legislation is such that errors such as those that have been made in these cases are inevitably becoming more frequent as judges and advocates struggle with (and take time to resolve) the multiplicity of disposals and the statutory requirements for each. (From R v. Cummings  1 W.L.R. 4429 at .)
Another Court of Appeal judge has described the Immigration Rules (not strictly law, but law-like statements of policy) as obscure and ‘something of a disgrace’.
Bad enough for senior judges in criminal and immigration cases, but in a public health crisis, it might be a good idea for the law to be readily accessible and set out clearly for all of us to understand what we can and cannot do. In a country that operates the rule of law, the citizen who is presumed to know the law should be able without much difficulty to find out what it is. In a 1975 House of Lords case, Fothergill v Monarch Airlines, Lord Diplock said:
Elementary justice or, to use the concept often cited by the European Court, the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.
So, finding what the law says we may or may not do during the pandemic is not straightforward. It gets more complicated when Ministers make declarations that are inconsistent with the law: during the first phase of lockdown, for example, we were told we could only exercise outside our homes for one hour per day; we were told not to sit down while out taking our exercise; now the Prime Minister tells pubs not to play any music. The law forbids none of this. It did not become the law just because a Minister said it. In 2007, the President of the Constitutional Court of the Russian Federation, VD Zorkin, told a meeting of the International Bar Association that ‘law cannot simply be what is dictated by political authority or issued by the State’. ‘Simply’ does a lot of work in that proposition.
Does it matter if there is confusion between legal rules and exhortations or advice? Yes, for two reasons: first, because the public’s willingness to submit to restrictions voluntarily is time-limited.
A study by LSE in April 2020 found that there was a high level of compliance with the early, restrictive lock-down. The dominant reason was:
a sense of common fate, a shared identity, and acting for the common or the social good, centred around national sentiment towards the NHS. Social norms also seem to have been backed up by making social distancing a legal requirement […] Fear of the virus, police or law were unimportant; neither was the legitimacy of the police or law
One inference is that a national emergency forges social solidarity and a voluntary willingness to make sacrifices.
In the months since April, the rules have been relaxed, locally tightened in English regions and in Scotland and Wales, and the messages are less clear and urgent than ‘Stay home, protect the NHS, save lives’. The Cummings-Barnard Castle episode suggested that not everyone was in it together. The simultaneous closure of all pubs and restaurants at 10pm puts large numbers of well-refreshed individuals on the street at the same time: forget consensual social distancing.
The second reason the confusion matters is that it fosters potentially unlawful methods for dealing with the pandemic. For example, universities mistakenly think they must confine students in their residential blocks, which might amount to false imprisonment.
If the ‘sense of common fate’ has abated, then clarity of message and clarity of rules becomes all the more important.
The Regulations made under the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984 in particular have imposed restrictions on the population unknown in peacetime, with criminal sanctions for breaches of the rules. Up to now, the Courts have been reluctant to intervene when challenges have been made to specific rules and the broader basis of the restrictions. They have had to balance the overriding need to protect public health against potential breaches of individual’s rights. Here are two examples of the approach they have taken in specific cases:
- It was lawful for Secretary of State to relax time limits for the preparation of education, health and care assessments for children with special educational needs without a formal consultation process and at speed. (From R. [on the application of Shaw] v Secretary of State for Education  EWHC 2216 [Admin], August 2020.)
- A mosque could be lawfully closed, without breaching its congregation’s right to freedom of religion under Article 9 of the European Convention of Human Rights. The Court held that the regulations struck ‘a fair balance between that interference and the general interest. That will be a delicate assessment. There will be no single right answer. The Secretary of State is entitled, in my view, to adopt a precautionary stance’. (From Hussain  EWHC 1392 [Admin].)
A fundamental challenge to the lawfulness of making restrictive regulations at all was made by a Monaco-based businessman, Simon Dolan (Dolan & Monks v Secretary of State ). At first instance, the High Court refused his application for judicial review, but he has been granted permission to appeal to the Court of Appeal. The primary argument was that the government exceeded its lawful powers when it enacted the initial lockdown regulations in March 2020. Dolan also contended that the lockdown entailed disproportionate breaches of the rights under the Convention, including freedom of religion (Article 9), family life (Article 8), freedom of assembly (Article 11), and liberty (Article 5).
The High Court roundly rejected the application. The Court’s overarching reason for its decision was that the case had become ‘academic’ by then, because by the time the case was heard on 6 July 2020, the Regulations in issue had been repealed. This appears to overlook the fact that the successor Regulations preserved the criminal sanctions for breaches of the original rule during the time they were in force, if the breaches came to light after. When the Court of Appeal gave permission for the appeal to go ahead, Lord Justice Hickinbottom said it gave rise to ‘potentially fundamental issues concerning the proper spheres for democratically accountable ministers of the government and judges’, but he appeared sceptical about the merits of the case.
In the Covid litigation we can see, on one view, an orthodox approach to the separation of powers between executive, Parliament and the Courts. The Courts will not interfere with matters of policy when Ministers have acted within the limits of their powers; the imperatives of protecting public health during the pandemic give the state greater leeway than it might otherwise have, in the public interest. None of that is controversial. There is nothing to suggest that the Judges feel more inhibited than usual in exercising their judicial review powers in the emergency. One can argue about whether they have got the balance right, and whether the Courts have tolerated too much interference with our rights.
A telling case concerns custody time limits in criminal cases. Until September 2020, defendants could not be held on remand pending trial in the Crown Court for more than 180 days. Absent a ‘good and sufficient’ reason for extending the time limit, they must be released on bail. Covid-19 closed down the Crown Courts, at least for trials, and added to an existing backlog of over 40,000 cases. Trials are still being listed many months and even years ahead.
On 23 March 2020, the Lord Chief Justice announced that jury trials were indefinitely suspended, due to the Coronavirus emergency. On 27 March 2020 the Senior Presiding Judge, HM Courts and Tribunals Service and the Crown Prosecution Service issued a ‘Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates’ and the Crown Court’. It contained a declaration that in general the lack of courtrooms due to the pandemic was a sufficiently good reason for extending the time limit. This had no legal force, not being a decision made in a case, but was adopted. In August 2020, one courageous judge decided he was not having it: he refused the prosecution’s application for an extension, on the basis that the HMCTS had failed to make proper provision, and this was no good and sufficient reason for the extension. For reasons that have not been disclosed, that judge had other similar applications taken away from him. The prosecution appealed to a more senior judge, who slapped down the first decision and granted the extension. In September 2020, the Secretary of State for Justice put through a Statutory Instrument, temporarily increasing the time limit from 180 to 238 days.
Maybe that was the only pragmatic way out the dilemma: defendants who needed to be locked up before their trial, as the Courts had decided, would otherwise have had to be released by operation of law. Serious consideration has also been given to abandoning trial by jury for many offences. The problem from a wider rule-of-law perspective is that a wholly foreseeable emergency has triggered a sudden abridgement of a safeguard that protects the presumptively innocent defendant from excessive imprisonment and does away with important rights.
As with many other areas of national life, the crisis has aggravated existing weaknesses in criminal justice, where I work. The system was on its knees before the virus struck, thanks to ten years of austerity. Police, courts, probation, prisons, and public funding for prosecution and defence were cut to the bone. The long delays between arrests and trials are not new, they have just got longer still. As a result, witnesses and victims of crime are kept on hold. Too many walk away, having lost trust in the system. Defendants wait too, and some will escape conviction when delays force cases to collapse. It speaks for itself that a failing system of criminal justice attacks the foundations of the rule of law when confidence in it has gone.
The LSE study gave empirical support to the theory that rule of law, and a system of law, is much more than a system of rules that can be enforced by sanctions, either civil or criminal. Both require more than mere compliance, but also a sense that one has entered a social compact so that we can live in peace with one another and rely in the last resort on fair adjudications of civil and criminal disputes. I am not arguing that there should be more Covid rules, nor agreeing with Lord Sumption that we need none or fewer: only that when they are needed, they must be clear and accessible, and accompanied by guidance that is just that. Confusion brings disorder. In the middle of a pandemic, disorder can be fatal.
The original article can be read HERE.