The Cambridge Private Law Centre last week hosted its annual Freshfields lecture.  Lord Sumption addressed us on “Government by decree—Covid-19 and the Constitution”. This lecture has received considerable media attention and already been mentioned on this blog.  (A link to the lecture and a transcript is here.)

One of Lord Sumption’s major claims was that the Covid-19 regulations that have restricted the free movement of the UK population were, in many instances, ultra vires the empowering legislation.  I will not engage with that controversial claim here.  Obviously it is of great constitutional importance and interest.  Assuming that Lord Sumption’s claim is right, could the regulations’ invalidity expose the Government to mass liability—to the entire UK population—for the tort of false imprisonment?  Thus stated, the proposition seems highly unlikely.  It would certainly be unprecedented.  But perhaps that is because a pre-emptive quarantine of the entire population is also unprecedented.  It is worth thinking about a hypothetical claim. 

As everyone learns in their first weeks of constitutional law, for AV Dicey an important aspect of the rule of law was that public officials (e.g. the police) are liable for torts in the same way as anybody else.  While administrative law has developed mightily since Victorian times, so that tort is no longer the only game in town for holding government within the limits of its powers, nevertheless the Diceyan approach remains important.  (And in one respect the role of tort has been strengthened since Dicey wrote: by the removal of the Crown’s immunity from claims in the Crown Proceedings Act 1947.)  For an individual in 2020 who suffers loss as a result of unlawful government action, the possibility of recovering damages is an obvious advantage of tort over judicial review.  And much of what the police (for example) do to members of the public is prima facie tortious—in the absence of demonstrable legal authority.  Stopping, searching, confining, restraining—all involve direct physical intrusion on land, goods or the person, or deprivation of liberty, which prima facie constitutes the torts of trespass (including false imprisonment).  The crucial defence is “legal authority”.  The courts generally insist on the strict demonstration of a legal power to do what would otherwise be tortious.  In its absence the trespassing public official will be liable.  There is no need to show fault.  Even if a prison governor honestly and reasonably believes that he has calculated a prisoner’s release date correctly (i.e. in line with High Court authority), if that calculation should transpire to be incorrect (because the High Court authority in question is overruled!) he is strictly liable for false imprisonment: Regina v Governor of Brockhill Prison, ex parte Evans (No 2).

A major gap in the “pure Diceyan” scheme opens up when the state exceeds its legal authority and yet has not committed a tort.  Accountability through tort becomes a broken reed.  Some notorious examples include Malone v Metropolitan Police Commissioner (police had no legal power to tap the plaintiff’s phone, yet there was no tort of invasion of privacy) and Wainwright v Home Office (prison guards failed to follow correct procedure before requiring visitors to strip to be searched, but (again) invasion of privacy not a tort).  On both occasions the United Kingdom was subsequently condemned in the European Court of Human Rights for breaching Articles 8 and 13 of the ECHR (invasion of privacy and failure to provide an effective remedy for it).  From the perspective of tort, would the Covid-19 regulations (were they indeed found ultra vires) join Malone and Wainwright in the sorry catalogue of damnum absque injuria?

It turns primarily on whether the Covid rules “imprisoned” the hypothetical claimant (who might be any member of the UK population subject to the (first) lockdown from March 2020 who complained of the restrictions on her free movement: let us call her Jane Hampden).  The three main questions are: was Jane Hampden “imprisoned” during the lockdown?  Was her imprisonment “false”?  What remedy would be available were the tort made out?  (I shall use the Regulations that were in force in England as examples.)

(1) “Imprisonment”

The tort does not require incarceration in the everyday sense.  As Baroness Hale recently stated in Regina (Jalloh) v Home Secretary , “The essence of imprisonment is being made to stay in a particular place by another person”. The means of such compulsion can be “many and various”: e.g. threats of legal process, as well as physical restraint by bolts, bars, or burly warders.

Even a transient deprivation of liberty can constitute “imprisonment”.  In Walker v Metropolitan Police Commissioner the police had imprisoned the claimant (without legal authority) when they blocked his escape from a shop doorway for a few seconds, to question him.

As fully discussed by the Supreme Court in Jalloh, “imprisonment” is ultimately fact-sensitive.  How would it apply to Jane Hampden, required not to “leave the place where they are living without reasonable excuse” by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, Reg 6(1), with “reasonable excuse” being defined to “include” the matters listed Reg 6(2)?  First we should note that Reg 6 could be enforced both by direct physical coercion and criminal sanction.  Police constables were empowered to use “reasonable force, if necessary” in order “to remove a person to the place where they are living” (Reg 8(4)).  Breach of Reg 6(1) was also an offence “punishable on summary conviction by a fine” (Reg 9) or fixed penalty notice (Reg 10).

Jalloh suggests that such a degree of compulsion would be sufficient.  The claimant there was subjected to an (ultra vires) curfew order that he not leave his home from 11pm until 7am.  The Supreme Court rejected the Home Secretary’s argument that Mr Jalloh was not imprisoned because he had not been physically prevented from leaving his house during the curfew (and had in fact left on several occasions).  For breaching the curfew would trigger criminal sanctions, and it was:

“backed up by the full authority of the state, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal”.

(Jalloh at [27])

Could Jalloh be distinguished in Jane Hampden’s claim?  Mr Jalloh had had to wear an electronic tag.  If he left his address it would automatically be detected and “The monitoring company would then telephone him to find out where he was” (ibid).  Such surveillance was not imposed upon Jane Hampden in lockdown.  Notwithstanding the absence of population-wide tagging, however, anyone appearing in a public place during the lockdown would manifestly stand out as having left their home and be an obvious target for police attention.  There would be a real, rather than notional, risk of bodily removal to one’s home and a fine for anyone breaking Reg 6, even without electronic tagging. 

But was Jane Hampden “being made to stay in a particular place” (her home) by Reg 6?  She was, note, permitted to leave it for “reasonable excuse”.  Some of the examples given in Reg 6(2) are very specific (to attend the funeral of a close relative, or (for children) to travel to the house of a co-parent, or to donate blood, etc).  But at least two listed excuses would apply to most of the population on most days.  Many still had to go to the shops regularly for “basic necessities” (since not everything could be delivered)—deemed “reasonable” under Reg 6(2)(a). The greatest exception was perhaps in Reg 6(2)(b)—leaving one’s home “to take exercise”.  Since Jane Hampden could leave her home for all these (and any other unlisted) “reasonable excuses”, was she confined to her home at all?  

Note that Reg 6(2) states exceptions or excuses.  Despite their potential width these exceptions could not be unlimited (or the entire point of Reg 6 would be undermined).  Was it not (as in Jalloh) “completely unreal” to suggest that Jane Hampden “was a free agent, able to come and go as [she] pleased”?   In the absence of an excuse the prohibition in Reg 6(1) still applied.  For at least some significant part of each day, therefore, Jane Hampden surely was confined to her home.  It was irrelevant in the Jalloh case that the curfew applied only overnight.  The fact that the claimant could move as he wished from 7 in the morning until 11 at night did not mean he was not imprisoned during the hours when the curfew did operate.  It would be curious if the fleeting detention in Walker v MPC was imprisonment but Jane Hampden’s confinement were not.  It is difficult to say precisely how much of each day during lockdown was not covered by “reasonable excuses” to leave the home.  But the period must clearly be measured in hours—resembling the Jalloh curfew, and a fortiori the few seconds’ confinement in Walker.

(2) “False”

Note: ‘”False” does not necessarily signify “mendacious” or “fallacious”’—detention without legal authority is ipso facto “false” (see Jalloh in the Court of Appeal, [43]-[44], per Lord Justice Davis).  Were the relevant Covid regulations found ultra vires and were imprisonment made out too (see above), liability for false imprisonment would follow.  (The regulations’ invalidity is being assumed here arguendo, in line with Lord Sumption’s thesis, but it is obviously contestable.  For discussion and links to the current Dolan judicial review, see Robert Craig’s recent post on this blog.)

(3) Remedy

If Jane Hampden could succeed on the two grounds above the Government would doubtless raise the “Lumba principle” to argue that damages should only be nominal: Lumba v Home Secretary.  The Supreme Court there held that if the claimant had not been held unlawfully detained under an unpublished Home Office policy he would still have been detained lawfully, under the properly published policy.  His unlawful detention had caused him no loss when he would inevitably have lost his liberty anyway.  Hence damages were nominal.  For this argument to succeed in Jane Hampden’s case, the Government would have to show that had the ultra vires regulations not been made, the Government would nevertheless have imposed identical restrictions using other powers available to it (either in existing statutes (see e.g. Civil Contingencies Act 2004) or if none provided a sufficient basis, by obtaining parliamentary consent to new primary legislation to confer the relevant powers).

To decide whether this would have happened, one must play the historian’s favourite parlour-game of counterfactual history.  If the Government (and its legal advisers) had realised that the statutory basis for the Covid regulations was inadequate, what would they have done instead?  Could they have used different extant statutory powers?  And would they have done so (given the different procedural requirements under those statutes)?  And if no extant statute could have authorised Reg 6, could the Government have obtained a new Act of Parliament to authorise the lockdown?

We are obviously deep into the hypothetical realm.  In his lecture, Lord Sumption suggests that the (inadequate) basis for the Covid regulations was chosen by the Government precisely to avoid parliamentary scrutiny.  That implies Government concern that if it had asked for parliamentary consent, this might have been withheld (else why fear Parliament’s opinion?).  But some of Lord Sumption’s other observations point the other way.  As he notes, in each House the Coronavirus Act 2020 passed all its legislative stages in a single day (despite its size and significance).  That scarcely suggests a likely revolt had Reg 6 (or legislation specifically authorising Reg 6) been put before Parliament.  Moreover, Lord Sumption also notes that to the extent the Official Opposition actually opposed anything during the first lockdown (and since), it has been to call for even greater restrictions on liberty.  It is hard to imagine that with this opposition support, Parliament would have refused to approve Reg 6.  Still, this is by its nature a highly speculative exercise.

Lumba is a controversial principle.  Some judges have noted its corrosive effect on tort law’s ability to keep the government within the limits of its powers.  It seems unsatisfactory that compensation is precluded because the government may say “although we violated your rights unlawfully, had we realised we’d have violated them lawfully instead”!  Thus for Mr Justice Stuart-Smith in Parker v Essex Constabulary (Michael Barrymore’s wrongful arrest claim), it was not enough that a lawful arrest could have been made.  The police had to show that they actually would have acted within their powers.  Less helpfully for Jane Hampden’s claim however, the Court of Appeal reformulated this as “what would have happened had it been appreciated what the law required” and dismissed Mr Parker’s claim (see [2018] EWCA Civ 2788, [104] (emphasis added)). 

More useful for Jane Hampen is Regina (Hemmati) v Home Secretary .  The Supreme Court held that for Lumba to apply the defendant must show that it would have acted lawfully under the law as it then stood.  The Home Secretary was not permitted to argue that had the unlawfulness of the legislation at issue been appreciated, it would have been amended to comply with the law.  According to Lord Kitchin at [112], this took Lumba “well beyond [its] proper limits”—i.e. cases where the claimant would anyway have been detained “under the existing legal and policy framework”.  “It can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different.”

The analysis in Hemmati suggests that where legislation is held unlawful, meaning that (once quashed) there was simply no legal basis for confining Jane Hampden to her home, Lumba would not be available to limit recovery to nominal damages (especially not if primary legislation would have been needed). 

If this argument succeeded the claimant could obtain substantial damages for deprivation of liberty (it matters not whether she was upset by it, let alone physically or mentally harmed by it—although these would be aggravating factors; and Lord Sumption’s account suggests the potential for exemplary damages too).  There is no easy way to quantify loss of liberty in money.  We could note, for example, that in Jalloh the claimant recovered £4,000 damages having endured an unlawful nocturnal curfew over 2 ½ years.  So Jane Hampden’s damages for false imprisonment, if her claim crossed the three formidable doctrinal obstacles considered above, would probably not be life-changing in magnitude.  Yet if a test case established that the entire population were entitled to similar payments, the financial consequences for the government of having acted ultra vires on the scale that Lord Sumption alleges would be astonishing.

Jonathan Morgan, University of Cambridge

(Suggested citation: J. Morgan, ‘Covid-19 and False Imprisonment’, U.K. Const. L. Blog (3rd Nov. 2020) (available at https://ukconstitutionallaw.org/))