Scrutiny or No Scrutiny, That Is The Question

By: Jack McClelland


In news other than the highly speculated US elections, breaking on the 4th November 2020 the Northern Ireland Executive has come under fire for their refusal to allow MLAs to debate and vote on the current restrictions that are in place in Northern Ireland.


A number of backbench MLAs have highlighted the lack of opportunities they have been provided to carry out in the job they were voted in to do, as the Northern Ireland Executive has introduced sweeping pandemic restrictions that has caused many businesses to close without democratic scrutiny.


These laws were introduced 2 weeks ago under circumstances that has raised suspicion. Businesses such as restaurants and pubs were told to close by 6pm on Friday 16th October for at least 4 weeks of Covid-19 restrictions under the Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment No. 3) Regulations (Northern Ireland) 2020.


However, until 10.30pm on the night of the 16th the law had not been published and therefore the law could not have been enforced, causing businesses to lose out on over 4 hours of business during a time where they have struggled to stay afloat.


Today we are a number of weeks into these restrictions and we still have not had the significant life changing legislation scrutinised as to whether it should be law or not. Even with the Assembly having a short workday on Monday 3rd November, due to the lack of business on the order paper, they have decided to push it to the 9th November when there are only a number of days before the restrictions are due to end.


Although the vote would more than likely go in favour of passing these policies it still completely undermines democracy. The actions of the Government are not only under fire within Northern Ireland in regard to Covid-19 restrictions. Lord Sumption following an entertaining lecture that I wish I had every Monday morning at 9am, has hit back at the UK Government.


Lord Sumption

Lord Sumption, who is openly not a massive fan of the UK lockdown, has not hesitated to pull the punches during his most recent critique of the government’s latest efforts to curb the spread of Covid-19. During the ‘Cambridge Freshfields’ annual law lecture, delivered via zoom, Lord Sumption highlighted his fear of how the people in the UK have surrendered their freedoms. Jonathan Philip Chadwick Sumption a British author, medieval historian and former senior judge who sat on the Supreme Court of the United Kingdom from 2012 to 2018 stated that he "believed Ministers were using tactics to incite fear, which has allowed them to act outside of their legal powers."


While enjoying his retirement from the Supreme Court, Sumption was delivering his lecture from Milan, Italy after being spotted appreciating the vast vineyards of Northern France.

Lord Sumption is a leading sceptic of lockdown, and he is not the only Supreme Court member who has sought to hold the Government to account over their misuse of powers.


Lady Hale who famously delivered the ruling on the unlawful use of powers to prorogue parliament, in an effort to avoid parliamentary scrutiny, has also made her view clear on parliament’s role in dealing with the pandemic. Lady Hale sporting another fantastic brooch, a fashion statement for which she has become well known, noted that ‘MPs and peers had surrendered’ their roles with the lack of parliamentary scrutiny of emergency Covid powers.


Lord Sumption’s main commentary referenced his fear as to how easily we have accepted the Government’s actions by decree during a global pandemic. We might think of Hermann Goerings admissions during the Nuremburg trials where he stated, “The ability to keep a country in fear is intimately related to the ability to impose the government’s desires onto its’ citizens.”


Lord Sumption notes that;

“This is how freedom dies. When societies lose their liberty, it is not usually because some despot has crushed it under his boot. It is because people voluntarily surrendered their liberty out of fear of some external threat.”


He also stated that the current political environment has the makings of a ‘totalitarian society’ that would produce a more authoritarian model of politics that could last well past the current COVID-19 pandemic.


Lord Sumption does recognise the seriousness of the current pandemic however, his worry is that the current actions of the Government will continue by noting: “The government has discovered the power of public fear to let it get its way. It will not forget.”


The legal argument behind Lord Sumption’s criticism of the current lockdown laws is that they are unlawful as they stand today. With reference to the case of Ex parte Simms, in which the House of Lords found that;


“fundamental rights cannot be overridden by general or ambiguous words” in an act of parliament. The government has passed the main lockdown regulations under the Public Health Act 1984, which does contain a power for the government to make regulations to fight infectious diseases, but it is “couched in wholly general terms”.


Not only has the actions of the Government gone against the Rule of Law according to Lord Sumption, they have also contradicted the medical and scientific advice provided to them. A Government spokesperson responded that: “At all stages we have been guided by medical and scientific advice and have taken the necessary action in order to rightly strike a balance between protecting jobs, the economy and saving lives.” However, SAGE the panel of expert scientific advisors for the UK Government stated that: “Citizens should be treated as rational actors, capable of taking decisions for themselves and managing personal risk.”


To conclude Sumption noted that the use of the Public Health Act 1984 to pass the main lockdown regulations, although allowed during times where it was necessary to fight infectious diseases, criticised its ‘wholly general terms’. Therefore, according to Sumption, using this Act to sanction all-encompassing controls over healthy people’s lives is inconsistent with the principle of legality found in Simms. Lord Sumption claims that all of the regulations brought in under this Act could be quashed following a judicial review, as the Government had no power to pass lockdown regulations to begin with.