The first part of this post, “Life in the Time of CoronaVirus: Democracy, Data and Saving Lives“, was to be followed up by a second part: “The Rule of Law and Cultural Differences”.
Two weeks on from Part One and huge amounts have been written and broadcast on the issues explored in Part One and the proposed topics for Part Two. Events are moving at breakneck speed. Information overload has reached spectacular new heights. On 4 April 2020, the UK’s Labour Party elected a new leader, in a re-setting of Party policy. As a result, this is a substantially amended version of the original Part Two.
Firstly, a brief reminder of the theme of these posts, from the introduction to Part One:
Planet Earth is currently in the grip of a pandemic, the disease COVID-19, more commonly known as CoronaVirus. The ongoing emergency is creating – and will continue to create – events which are without precedent in modern times.
An inevitable consequence of this ongoing crisis is that certain uncomfortable discussions which have so far been kicked down the road can no longer be ignored. Civil liberties versus the imposition of emergency government powers is now high up the agenda. A Pandora’s box of mass connectivity, state surveillance and human rights is exploding as panic seizes the world.
The consequent debate functions as a reality only in states which count as full democracies (see The Economist Intelligence Unit’s Democracy Index here). Below that level, the discussion is little more than lip service. In hybrid and authoritarian regimes, it does not exist and, if attempted, may be brutally suppressed.
It is therefore incumbent upon the full democracies of the world to continue the debate with urgency and vigour, even in the face of ongoing catastrophic turmoil and terror. The highest standards of protection of both individual and collective rights, whilst subject to review in times of emergency, must be maintained, even if few choose to follow them.
A shift in the political landscape: where now for the rule of law?
The tension between the imposition of emergency powers and the preservation of a democratic rule of law has generated endless debate over the centuries. In times of national and international emergencies, such as the current CoronaVirus pandemic, the debate increases exponentially. Ultimately, the purpose of state emergency powers should be to balance maximum public protection with minimal interference in the day-to-day rights of citizens.
This recent post from the Strasbourg Observers blog sets out some of the practical considerations relating to COVID-19 and the European Convention on Human Rights. This article from the New York Times ($) summarises the position in the United States.
In the UK, the Labour Party has lost the last four general elections. The last of these, in 2019, was disastrous both for the Party and the country. At this point, the Party fractured irretrievably, triggering the election of a new leader, and the country lost any semblance of an effective opposition in Parliament. Neither of these occurrences is healthy or desirable for democracy, especially not in a time of international crisis.
A brief biography of the newly-elected leader of the Labour Party:
Sir Keir Starmer is a barrister. He was called to the Bar in 1987, was appointed Queen’s Counsel in 2002, held the post of Director of Public Prosecutions from 2008-2013 and received a knighthood for “services to law and criminal justice” in 2014.
He has been a long-standing member of Doughty Street Chambers, a high-profile set of chambers specialising in, amongst other things, human rights and civil liberties. In 2002, he became joint head of chambers. In 2015, he was elected Labour MP for Holborn and St Pancras, a north London constituency.
Citizens of many countries are understandably concerned about the impact of emergency government powers on civil liberties and human rights. How this pans out will vary enormously from country to country. In the UK, this election of an experienced lawyer as Leader of the Opposition may prove to be unexpectedly timely.
When the Labour leadership election began, following the December 2019 general election, COVID-19 was merely an embryonic flutter, confined to East Asia. The situation as we find it in April 2020 could not have been anticipated at that time. So, in an era of rising fear and uncertainty, the election of a pragmatic lawyer with a wide range of experience in human rights law, could be viewed as a curious moment of serendipity, whatever political stance is espoused.
If the new Leader of the Opposition can take a robust but collaborative approach and is willing and able to demand accountability and transparency from government, then so much the better. Ideology can inform and guide the formulation of political strategy; however, it cannot, on its own, provide an effective healthcare system or a thriving economy – or indeed, a viable disaster management plan.
“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”
Those words are taken from the 1941 case of Liversidge v Anderson, an English case which many are now digging out and dusting off for its resonance with today’s circumstances. In fact, the case itself presents something of a conundrum.
The challenge in Liversidge was to the draconian powers conferred by the Defence (General) Regulations of 1939 which had been passed in expectation of the subsequent hostilities of the Second World War. Mr Liversidge failed at every stage up to and including the House of Lords. As Edward Garnier QC recently observed in The Times (£), the Regulations were “contrary to our libertarian customs and traditions and, indeed, in line with the type of power seized by the Nazis we were about to fight.”
However, the case has become legendary not for its outcome but for the dissenting judgment of Lord Atkin, from which the above quote is taken. It is generally accepted that the case was wrongly decided and reflected the fear and uncertainty of the times rather than a measured application of English jurisprudence and judicial independence.
The introduction of emergency powers in times of crisis may well be acceptable. However, if that extends into abuse of power and executive overreach, then it is not. The recent shocking images of migrant workers in India being sprayed with disinfectant as they try desperately to return to their homes is just one example of such behaviour and is to be utterly condemned.
Whose right is it anyway?
It is arguable that this debate is a luxury and only available in rich countries which confer high levels of democratic protection on their citizens. Even more reason, therefore, why those privileged nations should continue vital scrutiny of executive power and maintain vigilance over their citizens’ individual and collective rights. All extended emergency powers must satisfy the fundamental requirements of necessity, lawfulness and proportionality.
The last word must go to Lord Atkin in Liversidge:
I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive…….
It has always been one of the pillars of freedom, one of the principles of liberty…..that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
A chilling postscript
As I finish drafting this post, it is a sunny Sunday afternoon, the first warm day of spring. The UK is in CoronaVirus lockdown and leaving home is not allowed except for certain specified and limited purposes.
My balcony overlooks the private communal gardens of the estate. Many residents are outside enjoying the weather, mostly sitting quietly, doing exercises or playing games in family groups. Social distancing is, for the most part, being observed successfully as the gardens are quite extensive.
Suddenly, I am startled by loud, authoritarian voices. Police officers have entered the area and are walking around advising people in no uncertain terms that they should not be there. The atmosphere changes abruptly from peaceful relaxation to shock and alarm. I feel it too, even though I am only an observer.
Gradually, most people collect their belongings and, in some cases, their children, and head quietly for home, clearly stunned. However, a few do not take kindly to this intrusion and curtailing of their personal liberty and start hurling vociferous abuse at the police officers. I am stunned and shaken by what I am witnessing.
Fifteen minutes later, all is quiet. The garden is empty. The sun is still shining. However, shortly afterwards, one man returns and sits casually but defiantly on a bench. A few more determined souls trickle back. “Surely this is private space? I can do what I like here. It’s a free country – isn’t it? Bloody disgraceful!”
Eventually, the police officers return…….
Life has changed. The future is unknown.
Valerie Eliot Smith is a non-practising barrister and Visiting Scholar at the Centre for Commercial Law Studies, Queen Mary University of London. She has lived with the illness myalgic encephalomyelitis (ME) since 1981. When health permits, she writes a blog on legal and health-related issues at valerieeliotsmith.com
This post originally appeared on the Law and Health blog and is reproduced with permission and thanks.