Hanna Wilberg: Lockdowns, the principle of legality, and reasonable limits on liberty.

In responding to the Covid-19 pandemic, governments around the world have imposed unprecedented “lockdowns”.  They decided, on the advice of public health officials and experts, that this was necessary in order to at least “flatten the curve” of escalating numbers of infections and thus prevent health systems being overwhelmed.  This has left many governments scrambling to find the necessary legal powers.

Legal critics have invoked what amounts to the “principle of legality” as part of their arguments for questioning the legality of the lockdown measures: “For such a remarkable limitation of personal freedom to be contemplated by statute, one would have expected to find clear words.” (David Anderson QC; see also Robert Craig).  The relevant statutory powers do not specifically authorise this type of measure. Indeed, it can be argued that properly interpreted according to their terms and context, the powers conferred are significantly more limited than the powers that have purportedly been exercised.  Since general or ambiguous words will not do as authority for limits on common law rights, these measures must be unlawful.  The principle of legality is invoked to counter the sort of generous and purposive reading of the empowering provisions that Jeff King has proposed.

In this post, I want to highlight a possible counter-argument (for touching on this briefly, see Dean Knight and Geoff McLay).  What is missing from the principle of legality argument is recognition that common law rights of liberty are not absolute.  The common law ordinarily defines rights in concrete and limited terms, such as via the law of torts (see Entick v Carrington).  Where liberty rights are invoked in abstract and general terms, they must similarly be subject to limits: courts must determine what limits can be justified as reasonable or proportional.  Once that is recognised, there is a good argument that the principle of legality’s requirement for clear and express words should be applied to limits on rights only if they would either constitute a tort in the absence of statutory authority, or fail the test of being reasonable or proportional.

The lockdown measures have indeed been argued to amount to false imprisonment in the absence of statutory authority, but that is debatable (a NZ decision on habeas corpus suggests otherwise).  To the extent that liberty is invoked in a more abstract and general sense, the argument proposed here would lead to the conclusion that general or ambiguous words in empowering provisions can be sufficient after all to authorise these measures, so long as the limits on liberty imposed by these measures are reasonable or proportional.

This note has three parts.  In the first, I sketch the reasons for adopting this approach to the principle of legality generally – an argument I developed in more detail in my essay in Dan Meagher and Matthew Groves’ collection on the principle of legality.  In the second part, I show that the UK Supreme Court’s decision in R (Miller) v The Prime Minister provides authority for this argument.  In the final part I turn to the particular context of emergencies and the Covid-19 lockdowns.  That context gives rise to strong reasons both for and against adopting the approach in question.

Reasons for adopting this approach generally

The main argument in support of treating common law rights as subject to limits, and applying the principle of legality accordingly, is simple: there is no valid rights-based objection to this.  The rights that deserve protection are rights subject to limits, not absolute rights.  In other words, limits define the proper scope of rights protection.

The purpose of the principle of legality is to protect fundamental common law rights against encroachment by statute to the greatest extent that is consistent with Parliamentary sovereignty: Parliament has the power to abrogate rights, but courts will accept that it has done so only if it has used sufficiently clear and express words. In addition to protecting rights against encroachment, this requirement for clear and express words also ensures that Parliament has to confront the political consequences of abrogating rights. In the absence of such clear and express words abrogating rights, statutes will be read subject to rights.

However, this rights-protective and accountability-ensuring approach to statutory interpretation is warranted only when the result would otherwise violate rights.  And that is not the case where the result does not impinge on the proper scope of protection for the right.

The proper scope of protection for common law rights can be determined in at least two different ways.  The first is by means of established concrete common law doctrines, such as the elements and defences of torts (eg false imprisonment or trespass).  Where an exercise of power would amount to a common law wrong in the absence of statutory authority, then the principle of legality applies to require clear and unambiguous words for such authority.  Secondly, however, where common law rights are invoked in general and abstract terms, then the proper scope of protection still needs to be determined before the principle of legality can be engaged.  In such cases courts have no option but to do this by determining whether the challenged limits are reasonable or proportionate.  And although it is not often noted, they have done just that in leading cases such as R v Secretary of State for the Home Department, ex p Simms.

While some rights are less capable of reasonable limits than others, the point is that whenever limits are reasonable, then such reasonable limits do not violate the right and hence do not engage the principle of legality. And liberty rights certainly are capable of reasonable limits. No-one could seriously claim that rights of liberty stated in broad and abstract terms should receive absolute protection against all possible limits on them.  Just recall the apocryphal example of exercising one’s freedom of expression by falsely shouting ‘fire!’ in a crowded theatre.

It is worth noting that this proposed approach corresponds directly to the established approach to rights guaranteed by statutory bills of rights such as the Human Rights Act 1998 or the New Zealand Bill of Rights Act.  In that context, courts ask first whether a challenged incursion on a right can be justified as proportional; only if it cannot be justified and therefore is confirmed as a violation of the right do they go on to ask whether the empowering legislation can be read down to avoid authorising this violation (see R v Hansen).  It is not easy to see why common law rights of liberty should have more absolute protection than that.

The objection to this approach is that while rights do have limits, public authorities’ power to impose such limits should always be authorised by Parliament. Any claim that limits are reasonable or proportional should be considered and endorsed by our democratic representatives (see, eg, Julian Rivers).

However, in my view a requirement for specific authorisation for all limits on rights would shift the balance too far in favour of individual rights, at the expense of public or community interests.  Even trivial limits on rights could be imposed, even in the service of weighty public interests, only if Parliament had identified and addressed the need for that particular limit in advance.

Perhaps, though, a compromise is needed.  For instance, perhaps it should depend on the importance of the right and the severity of the limit.  General words would suffice to authorise reasonable limits on unimportant rights or minor reasonable limits even on important rights.  But only clear words or necessary implication would suffice to authorise severe limits on important rights, even if they were reasonable.  I will return to this idea.

Authority in Miller for the proposed approach

As I read it, there is Supreme Court authority in R (Miller) v The Prime Minister for treating common law rights as subject to reasonable or proportional limits, and applying the principle of legality accordingly.  Miller was, of course, a momentous decision in its assertion of judicial scrutiny over matters that many had long considered purely political (not to mention its intervention at the height of the Brexit drama).  Due to a focus on those headline aspects, some of the finer points of the reasoning, and their implications as generally applicable precedent, have perhaps not yet received the attention they deserve.  Among those finer points is one that amounts to authority for the approach proposed here.

The relevant point decided in Miller is that the scope of prerogative powers is subject to common law constitutional principles (paras 38, 40, 49), but that exercises of those powers infringing those principles are unlawful only if the infringement is not reasonably justified (para 50).  This is not directly in point for present purposes in two respects: the power in question is prerogative rather than statutory, and the common law limit on the scope of that power is a constitutional principle rather than a fundamental right.  However, the Court considers essentially the same point applies regardless of these distinctions (paras 40, 49).

What is directly in point is the Court’s reliance on R (UNISON) v Lord Chancellor.  That case did concern both a statutory power and a common law constitutional principle that can also be considered a fundamental right (the right of access to courts), and as such is directly relevant.  It is said to stand for the equivalent proposition in that context (para 49):

Unless the terms of the statute indicate a contrary intention, the courts have set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification.

The principle of legality is not mentioned by name, but the first part of the quoted passage amounts to the principle of legality (and several principle of legality cases are cited in UNISON itself, including at para 81 R v Secretary of State for the Home Department, ex p Simms).  The second part of the passage then means that the principle of legality does not render an exercise of power unlawful when the impact on a common law right is reasonably justified.  The Court in Miller endorses that proposition, using it as the foundation for its ruling about the scope of the prerogative power.

Emergencies and the current lockdowns

Returning to the current issue concerning the Covid-19 lockdown measures, the emergency context does raise the stakes on both sides of this argument.

On the one hand, there is the argument I touched on earlier: the more severe the limit on fundamental rights of liberty, the more highly desirable it is that it should be imposed only pursuant to specific statutory authority.  It is not enough that such a severe limit is reasonable in the circumstances – we should require Parliament to make that judgment, and to be accountable for it.  Given the unprecedented nature of the lockdown restrictions on liberty, if there is ever a case for insisting on such specific authority, this would have to be it.

But on the other hand, an emergency context also supports at least two similarly strong arguments to the opposite effect.  First, where the objective being pursued by the limit (saving thousands of lives) is not only extremely important but also extremely pressing and urgent, that provides an additional argument in favour of accepting general or ambiguous words as sufficient to authorise limits on rights that are necessary, reasonable or proportionate means for serving that objective.

Secondly, the more draconian the limits on liberty that are required by an emergency, the less likely it is that lawmakers would feel comfortable to specifically authorise such limits in advance of the particular emergency, lest they be used for nefarious purposes (see Janet McLean in a forthcoming piece in the August 2020 issue of the Policy Quarterly).  In other words, the very same rights-protecting instincts that lead courts to require clear and express words to authorise limits on rights are also likely to lead Parliaments to decline providing such authority in advance – even assuming that the need for the particular limits is anticipated.

Arguably, all of these points apply in the present context.  And an approach based on them may allow courts to uphold the legality of lockdown measures, provided that those measures are proportionate to the crisis being addressed, and that they serve the purpose of the empowering provisions and fall within one of the plausible readings of those provisions.

The obvious counter argument is that the needs of an emergency can be addressed after it arises by urgent bespoke legislation conferring the powers that have turned out to be necessary. I agree that this option needs to be taken into account in judging each situation. However, it may not always be a good answer.  First, there may indeed be cases where urgency and circumstances make emergency legislation impracticable (for a sense that this may arguably have been the case in New Zealand at the start of the lockdown, see here and here).  Even where it is practicable, it may not necessarily be much better than making delegated legislation under existing more general powers. Urgent legislation involves at least a risk of conferring excessive powers subject to inadequate safeguards, which may actually compromise the courts’ ability to subsequently judge the reasonableness and justification for measures adopted pursuant to those powers.

Everything may depend, then, on a balancing exercise: not just how important is the right and how severe the limit, but also how serious and how urgent was the emergency.  The point I would emphasise is simply that we should not automatically assume that justified limits on liberty rights can never be authorised by general or ambiguous words.

Hanna Wilberg, Associate Professor of Law, University of Auckland.

Many thanks to Claudia Geiringer, Janet McLean and to both of the editors of this blog for helpful comments on a draft of this note, with the usual caveat of course.

(Suggested citation: H. Wilberg, ‘Lockdowns, the principle of legality, and reasonable limits on liberty.’, U.K. Const. L. Blog (23rd July 2020) (available at https://ukconstitutionallaw.org/))