Just about everyone agrees that the fight against the coronavirus pandemic requires some modification to our way of life. Debates rage about how severe these modifications should be, but most people in most countries are supportive of measures which restrict our freedoms, at least for a while.
Politicians are empowered, to their surprise and maybe dismay, to make difficult judgments about our lifestyles, based upon incomplete data and shaky forecasts in medical science, psychology and economics. However, governments are uniquely well-placed to draw up firm and clear advice. In the world’s democracies, parliaments are usually entitled to pass laws which to some extent derogate from human rights laws embedded in their constitutions or under international treaties such as the ECHR.
Many such laws are extreme, passed in a rush based on limited evidence. Laws passed in a hurry are rarely well considered and the last century saw too many instances of parliaments giving power to elected governments which then hung on to them for years after their original purpose evaporated. Any laws passed to combat this virus must expire automatically with interim periodic reviews.
Courts and lawyers have important roles to play in ensuring that laws are proportionate and justifiable, just as they did in relation to the terrorist laws of the last 20 years. We should be wary of any vague, wide or unlimited powers granted to the state which might then be misused or misunderstood by governments or the police. Controls over people should only be in order to protect us.
This country, including our Government, has been leading the way to keep as much of the court administration open as possible. That is admirable, but chronic underinvestment led to additional delays and complications for court users, staff, lawyers, and judges. At least the courts are functioning - and not just for very urgent business - which they should be, so that justice can be administered by the famously strong, proud and independent judiciary and lawyers of this country.
The public has been tolerant, welcoming even, of restrictions on our freedom of movement and assembly – restrictions which can be justified, if not driven by, current scientific advice. But some countries have also taken steps to restrict freedom of expression, stifling informed criticism and shutting out debate. There is no right or wrong reaction to this pandemic and laws should not be used to gag critics of any particular policy or government action, or inaction. Nor should democratic scrutiny by elected parliaments be suspended for any longer than absolutely necessary; thankfully technology offers solutions which would have been unavailable not long ago.
A lack of precision in the law will lead to inconsistent interpretations and random enforcement. If a government’s pronouncements are made in mandatory rather than advisory terms, then they must accord precisely with the law; otherwise, as has been observed already, the police and the public will be confused about what is required and what is merely advisable. Laws should be clear and expounded clearly.
Ultimately it will fall to the courts to interpret the criminal law and decide whether it has been broken – a task made harder if the wording is imprecise. In civil law, there will be years of court disputes about whether the law entitled a party to avoid their pre-existing legal obligations – disputes which will be messier if the laws are not clear and precise.
Then there is the split of opinion, which can crudely be seen as East/West, as to whether the state should be able to gather up individuals’ data as part of the toolkit to defeat Covid-19. Germans and South Koreans have very different tolerances for such intrusions. Technology which was unavailable even 20 years ago is now ubiquitous. It gives governments powerful weapons against the disease, but powerful weapons can be misused, and not only by the unelected dictator – as history reminds us. Our right to privacy can be circumscribed, but citizens of one country may baulk at rules which citizens of another would tolerate or even welcome. In any case, restrictions must be temporary and proportionate to be lawful, as well as publicly supported.
These are not questions of politics, to be determined by opinion polls or the ballot box. They are part of the bedrock of civilised societies. Governments are understandably under a lot of pressure to combat this disease and minimise the number of deaths, whilst not destroying economies for the survivors. They are focussed on organising national health provision and supporting businesses. However, the future of our societies also depends on maintaining the rule of law, which we must respect and preserve for future generations.
Steven Thompson QC, Chair of the Bar Council’s International Committee