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Corona-vires: Lord Sumption gets his case law on as he and Lady Hale blast pandemic regulations

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Cheeky bit of Liversidge v Anderson

It’s one of English law’s most notorious decisions — and Lord Sumption thinks it has lessons for how the courts should tackle coronavirus rules.

Liversidge v Anderson was the 1941 ruling by the House of Lords that the Home Secretary was entitled to lock up pretty much anyone he liked under emergency war powers. It’s now seen as a craven example of judges kowtowing to the executive, and is best known for Lord Atkin’s powerful dissent (“In this country, amid the clash of arms, the laws are not silent“).

Sumption cited the case during his evidence on the “constitutional implications of COVID-19” at a top committee this morning. The well-known lockdown sceptic put in a Zoom appearance alongside fellow ex-Supreme Lady Hale.

The final question posed was what role the courts have to play in scrutinising the often controversial lockdown laws.

Hale set the scene by pointing out that there are two types of case where judges might weigh in. The first is challenges based on human rights violations — the former President remarking that she was surprised that “there don’t seem, as far as I know, to have been many cases brought by individuals claiming that their Convention rights have been violated”.

The second is challenges based on the legal validity of the regulations — such as the argument in the recent Dolan case that the lockdown regs are ultra vires (beyond the authority given by) the Public Health Act.

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Sumption then treated his fellow grandees to a bit of a public law seminar. He said:

“As Lady Hale has pointed out, there is a difference between the court’s function in ruling on the validity of an exercise of a statutory power, and its function in ruling on what I might loosely call the propriety of that exercise… I think that the power of the courts to rule on the validity of an exercise of public powers is absolutely fundamental and should not be limited in any way”.

And he went on to warn that just because it’s an emergency doesn’t mean the courts can throw in the towel on stuff like whether powers curtailing liberty are actually authorised by an act of parliament.

He continued: “I think courts are more sensitive to the political environment than they admit. Courts very frequently have what I would call their Liversidge v Anderson moments.”

Liversidge v Anderson“, Sumption explained, “was the case in 1942 [upholding] regulation 18(b), which gave the government power to intern anybody by ministerial order, without having to express any reason other than that the minister was satisfied it was a good idea. I think it is now universally thought that that was a gross aberration and that the dissenting judgment of Lord Atkin was absolutely impeccable. But I have to say that the danger of a Liversidge v Anderson moment, of the courts deferring to the executive even on questions of validity, is a serious one… it is a danger to which the courts should be very much alive”.

Mic drop, Sumption out.

Earlier, Hale had expressed her dismay at the “bewildering rapidity” of changes to the rules and complained that “the normal orderly process of scrutinising delegated legislation has not taken place”. She also said it was “clearly inappropriate” for the authorities to try to enforce mere coronavirus guidance rather than the legally binding regulations.

The pair were giving evidence to a House of Lords Constitution Committee inquiry into the “constitutional implications of COVID-19”.

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11 Comments

james c

Well, what can one say?

Sumption doesn’t want a lockdown, has written about this in the press and generally made a complete fool of himself when venturing outside matters legal.

Now he comes back posing as a disinterested upholder of the law.

(8)(37)

You are a fool

What an utterly absurd take. Have you even been reading/ watching his commentary? These are the points that he has been maintaining throughout the pandemic, alongside reasonable concern about the efficacy of lockdowns

(29)(2)

Nicola Moore

why hasn’t this been reported on the bbc or the broadsheet press. It is the most important news on Covid and many organisations should be issues JR proceedings against the government’s “weasel words” and infringment of the rule of law and civil liberties over Covid lockdown and regulations

(26)(3)

Anonymous

Actually in the recent Dolan case it was held the government was within its powers to order the lockdown.

(0)(6)

Pipe down lad.

I mean ‘locking anybody up for any reason’ is certainly different to ‘refusal to comply with lockdown rules [by having a gathering of 30 people]’ etc. Massive hypocrite in the sense that he criticises the judiciary for sensitivity to the “political environment” (poor choice of words in a pandemic) when it is his own sensitivity to said environment that has lead him on the crusade!

(6)(12)

Anonymous

I suppose being rich and privileged helps with this sort of selfish view of the world.

(5)(15)

Joe

I fought the law and the law won

(0)(0)

Margaret Gerber

Just so no one is in any doubt, here is something which the MSM (BBC) nor the government is telling you:

11.1.4) Short description
The MHRA urgently seeks and Artificial Intelligence (AI) software tool to process the
expected high volume of Covid-19 vaccine Adverse Drug Reaction (ADR’s) and
ensure that no details from the ADR’s reaction text are missed

Smells fishy? This is just one aspect of the many lies from the so-called government

(5)(0)

SS

Why have our legislative bodies seemingly rolled over, accepted the utter disgrace that the UK and many other governments are implementing and not challenged the lies that are being published to create a collective psyche that in any other time would be dissected and nailed to the wall?

(4)(0)

Ss

Why can the mainstream press not report up to 35000 people protesting in our capital, regularly, to rescind the restriction of freedoms introduced by the COVID-19 Act March 2020?

(5)(0)

SS

Why can the mainstream press not report up to 35000 people protesting in our capital, regularly, to rescind the restriction of freedoms introduced by the COVID-19 Act March 2020? Why can they label anyone not sucking up the propaganda as an Antivaxxer/promoter of fake/unofficial news aka, perspicacious?

(3)(0)

Comments are closed.

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