Well worth a read.
It’s a PDF unfortunately which makes copying the text over difficult but here’s the first bit to whet your appetite.
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Government by decree: Covid-19 and the Constitution
Lord Sumption
During the Covid-19 pandemic, the British state has exercised coercive powers over its citizens 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 could go, whom they could meet, what they could do even within their own homes. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal Parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country. We have never sought to do such a thing before, even in wartime and even when faced with health crises far more serious than this one.
It is customary for those who doubt the legality or constitutional propriety of the government’s acts to start with a hand-wringing declaration that they do so with a heavy heart, not doubting for a moment the need for the measures taken. I shall not follow that tradition. I do not doubt the seriousness of the epidemic, but I believe that history will look back on the measures taken to contain it as a monument of collective hysteria and governmental folly. This evening, however, I am not concerned with the wisdom of this policy, but only with its implications for the government of our country. So remarkable a departure from our liberal traditions surely calls for some consideration of its legal and constitutional basis.
The present government came to office after the general election of December 2019 with a large majority and a good deal of constitutional baggage. It had not had an absolute majority in the previous Parliament, which had rejected its policy on the terms for leaving the European Union. It had responded to Parliamentary opposition with indignation. 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 in public by a law officer of the Crown. The government had endeavoured to avoid Parliamentary scrutiny of their negotiations with the EU by proroguing it, and had been prevented from doing so by the Supreme Court’s decision in Miller (No. 2). The ground for the Court’s intervention was that the prorogation impeded the essential function of Parliament in holding the government to account. This decision was certainly controversial in expressing as a rule of law something which had traditionally been regarded as no more than a political convention, although I have no doubt for my part that the Court was right.
But whether it is properly classified as law or convention, the constitutional principle which the court stated was surely beyond question. Governments hold power in Britain on the sufferance of the elected chamber of the legislature. Without that, we are no democracy. As the court pointed out, the dependence of government on Parliamentary support was the means by which ‘the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.’
The present government has a different approach. It seeks to derive its legitimacy directly from the people, bypassing their elected representatives. Since the people have no institutional mechanism for holding governments to account, other than Parliament, the effect is that ministers 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 the coronavirus pandemic. The minutes of the meetings of SAGE, its panel of expert scientific advisers, record that shortly before the lockdown was announced the behavioural scientists advised against the use of coercive powers. ‘Citizens should be treated as rational actors, capable of taking decisions for themselves and managing personal risk,’ they had said. The government did not act on this advice. Encouraged by the public panic and the general demand for action, it opted for a course which it believed would make it popular. It chose coercion.