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

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By CJ McKinney on

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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