The Catch-22 of Challenging Covid-19 Laws

7 July 2020. Updated 9 July 2020.

By John Waters

The High Court in London has rejected the challenge of businessman Simon Dolan to the legality of the British Government’s lockdown rules. The ruling reduces not only the possibility of reaching some port of legal sanity on the lockdown measures generally, but also the chances of defeating similar measures if adopted in response to other crises in the future. Mr Dolan’s challenge focused on a number of aspects of the regulations, including the closure of schools and places of worship and the denial of the right to free assembly.

Rejecting Mr Dolan’s bid for a Judicial Review of the lockdown measures, The Honourable Mr Justice Lewis said the rules introduced by the Government were justified in the ‘unique’ circumstances of the coronavirus pandemic. He conceded that the lockdown rules had involved “a restriction on the freedom of assembly and association”, which freedoms he declared to be important in a democratic society. Nevertheless, he concluded: “The context in which the restrictions were imposed, however, was of a global pandemic where a novel, highly infectious disease capable of causing death was spreading and was transmissible between humans.”

“There was no known cure and no vaccine,” the judge elaborated. “There was a legal duty to review the restrictions periodically and to end the restrictions if they were no longer necessary to achieve the aim of reducing the spread and the incidence of coronavirus.”

The judge allowed that there might well have been a case in relation to the closure of churches and mosques, but said that recent changes in the rules probably rendered these questions moot. The fact that the regulations expire after six months would, the judge said, likely mean that “there is no realistic prospect that a court would find that regulations adopted to reduce the opportunity for transmission by limiting contact between individuals was disproportionate”.

Having been involved in a similar application to the Irish courts, I recognise a certain familiar circularity in this logic: because the Government believed it was doing the right thing, it was doing the right thing, and the fact that the measures are short-lived is sufficient to dispel any remaining doubts about proportionality. This means that, in future, governments may proceed to abridge or suspend the rights of citizens provided that they can produce evidence that recognized experts were warning of abnormal consequences of a feared impending crisis and state that they did not intend to extend the measures beyond the period of the crisis. When we consider that it is now established that the effects of SARS-CoV-2 are somewhat in the nature of a medium range influenza, this essentially amounts to permission for closing down the world every year from mid-October to the beginning of June. Proportionality in effect means the fullest extension of the precautionary principle.

Like Mr Dolan, my accomplice Gemma O’Doherty and I met with a rebuff at the first stage of our challenge in the High Court in Dublin (we are currently preparing our appeal). In making our application for leave for Judicial Review, we were as concerned about achieving some kind of bar on COVID-19 copycat adventuring by governments in the future as about putting a stop to the encroachments on human freedoms in the present. Our lockdown laws, like the British ones, have a finite life, in our case a ‘sunset clause’ that truncates the force of the legislation in November. But of course there is nothing to prevent these or similar laws being reenacted in the future. A Declaration Of Unconstitutionality would have something like the desired effect, or at least provide future governments with some sense of a place where a line needed to be drawn without invoking Article 28 of the Constitution of Ireland, which requires that a State of Emergency may be declared only in times of “war or armed rebellion”.

The Irish acting Government in March this year elided this impediment by, in effect, declaring an Emergency with a small ‘e’, an entirely novel concept, and asserting that it had not invoked Article 28 but simply introduced measures (which suspended elements of the Constitution willy-nilly) without regarding or treating this as a formal State of Emergency (even though the word ’emergency’ was to be seen all over the legislations and regulations).

Since before the present Constitution was framed in 1937, and right up to a Supreme Court ruling as recently as 2011, the courts were adamant that an emergency, with or without a capital E, could only be declared in the circumstances set out in Article 28. The lockdown legislation therefore created all kinds of new precedents, which, if left to lie, would in effect allow the Constitution of Ireland to be suspended for almost any kind of crisis, thereby transforming said Constitution from a Bill of Rights to a Charter for Occasional Totalitarianism. As far as I know, Japan is the only place where fundamental constitutional rights have prevailed in the face of COVID-19-related attacks, though Sweden’s robust constitutional principles, too, may have contributed to the more relaxed approach to managing the virus there.

Reading the judgment of The Honourable Mr Justice Lewis, it struck me that we may be seeing the emergence of an informal comity of courts internationally on issues pertaining to the COVID-19 lockdowns, and by extension possibly all such future measures introduced under headings such as Health and The Common Good. The judgment is peppered with circularities that seem to paint public rights and freedoms into the same corner every time:

For example:

On 12 March 2020, the World Health Organisation announced that there were now more than 20,000 confirmed cases and almost 1,000 deaths in Europe. Scientific knowledge and understanding of coronavirus were limited but the disease was highly infectious and could be transmitted from human to human. Against that background, it is simply unarguable that the decision to make the Regulations on 26 March 2020 and to impose the restrictions contained in the Regulations on that date was in any way disproportionate to the aim of combatting the threat to public health posed by the incidence and spread of coronavirus.

And so on. In other words: the Government’s actions must always be deemed legitimate because the Government must always be presumed to be acting in good faith. The courts will not go into the rights and wrongs of the lockdown, but in effect give only token consideration to the proportionality of the measures on the basis of what was at the time known, suspected or feared. Since the regulations are purported to seek to achieve a legitimate aim — namely the reduction of the incidence and spread of SARS-CoV-2 – whatever those in charge decided to do to this end must be regarded as having been, at the time, ‘proportionate’.

This in effect means that the extent to which politicians estimate the gravity of even a remote threat at the time they introduce such laws is to be the measure of the gravity of the situation at the time, and therefore of the proportionality of the measures. The facts and analyses used by governments, regardless of how wrong the projections may appear in due course, are assumed to have been valid on the basis of even the remote possibility that bad things might have been likely to happen. Due diligence is to be welcomed, but is not essential to this schema. This suggests that, in all such situation, it will in the future be impossible to challenge anything of this nature while it is actually happening, or even for some time after enforcement has ceased, because of the circular logic likely to be applied, which means that such measures will in the future, because unchallengeable, not be challenged.

The paradox is that, in the wake of possible public inquiries into the COVID-19 debacle in various jurisdictions, in a year or two, the general cultural attitude to such matters may well be very different. But this may not be capable of creating legal traction in itself. Due perhaps to the calamitous consequences of the lockdown having been acknowledged, such an inquiry might well decide along the lines of the submissions made by challengers such as Simon Dolan, and issue pious recommendations about the necessity for learning lessons. But whether any of this would do anything to safeguard the public interest against such future actions by governments is actually questionable, for the reason that, in the future, each situation is likely to be regarded by the courts as self-standing, and so, in the view of posterior-protecting judges, requiring judgments to be tilted towards caution rather than rights and freedoms. There was a bizarre demonstration of the circularity of all this during the hearings of our application before the High Court in Dublin. By order of the court on the direction of the Chief Justice, the public had been excluded from these hearings (contrary to Article 34 of the Constitution of Ireland) and most of the spare seats were festooned with yellow placards issuing dire warnings about Covid-19. Yet, here we were, arguing inter alia that the effects of the virus were being exaggerated, that the measures taken were disproportionate and that human life ought to be allowed to continue more or less as normal. The judges, presiding over their courts, were implementing the same panic-driven logic as had the politicians we were seeking to challenge! In the future, those contemplating challenges to such measures will need to remember that they are unlikely to encounter many Jonathan Sumptions looking down at them from the bench.

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