During the Covid-19 pandemic, the British state has exercised coercive powers over its citizens on a scale never previously attempted. It has taken effective legal control, enforced by the police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal Parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country. We have never sought to do such a thing before, even in wartime and even when faced with health crises far more serious than this one.
It is customary for those who doubt the legality or constitutional propriety of the government’s acts to start with a hand-wringing declaration that they do so with a heavy heart, not doubting for a moment the need for the measures taken. I shall not follow that tradition. I do not doubt the seriousness of the epidemic, but I believe that history will look back on the measures taken to contain it as a monument of collective hysteria and governmental folly. This evening, however, I am not concerned with the wisdom of this policy, but only with its implications for the government of our country. So remarkable a departure from our liberal traditions surely calls for some consideration of its legal and constitutional basis.
The present government came to office after the general election of December 2019 with a large majority and a good deal of constitutional baggage. It had not had an absolute majority in the previous Parliament, which had rejected its policy on the terms for leaving the European Union. It had responded to Parliamentary opposition with indignation. The Attorney-General told the House of Commons in September 2019 that they were unfit to sit, surely one of the more extraordinary statements ever made in public by a law officer of the Crown.