Emergency powers can’t last forever
THE iron law of emergency powers is that they last longer than the emergencies which spawned them. The Scott Inquiry into arms-to-iraq discovered in the 1990s that the UK’S export controls dated from emergency laws passed at the beginning of the Second World War. More recently, but no less perniciously, Tony Blair’s control orders remained in force against people suspected (but never convicted) of involvement with terrorism for years after 9/11.
Not all emergencies are caused by war or terrorism. The public health emergency from which we are struggling to emerge has seen a raft of emergency powers conferred on ministers, with barely a moment’s pause for reflection.
In the heat of the panic and fear that swept the country as coronavirus first lapped at our shores in early 2020, this was understandable.
Our TV news was dominated by horrific pictures from Italy of a health service already appearing to fall over. Patients without ventilators. Doctors having to make life-ordeath decisions about who gets life-saving treatment and who is left to die on a trolley in a hospital corridor.
I do not believe lockdown was a mistake. It was a necessary step to take to protect our own NHS from the traumas we – rightly – feared would otherwise overtake it.
But I also believe lockdown was extraordinary and that time must be taken to reflect on what we have learnt before law-makers simply hit the repeat button and allow these emergency powers to roll on for another six, twelve, or eighteen months.
The threat is not over. But there is no reason to panic any more. Coronavirus has not gone away. But even as infections are rising again the link in the chain of causation from infection to hospitalisation to intensive care has been weakened – if not yet fully broken – by the immense success of the vaccination programme. This is a time to proceed with caution, not rush to judgement or legislate in haste.
Whilst lockdown was no mistake – there is no question that it saved lives and protected the NHS – it has, at the same time, come with desperately high costs.
That cancer detection rates have fallen through the floor is not because cancer has retreated but because screening programmes were suspended and referrals were slashed.
Yet we all know how direct the link is between early detection, swift treatment and positive outcomes in cancer cases. Be in no doubt: Scots who would otherwise have beaten cancer will die of the disease because of lockdown. Not because of Covid. Because of lockdown.
Those who argue that lockdown should be extended need to remember this. They may be right to make that argument but, in doing so, they are choosing to save lives from Covid at the expense of those who will die from other causes and who, without lockdown, would have been saved. This is the brutal reality of tragic choices.
Lockdown has caused harms not only to our health but also to our livelihoods. Whilst most aspects of the economy have now reopened, albeit subject to social distancing and capacity restrictions, some parts remain firmly closed. Nightclubs, soft play centres and music venues have been required by force of law to keep their doors locked and to keep the public out for fifteen months, with no break and, it would appear, no end in sight.
At a time when the NHS was at real risk of being overrun, unprecedented restrictions such as these were justified in the public interest. But let us not lose sight of just how extraordinary they are. These are restrictions imposed not on unhealthy people who risk infecting others.
These are requirements imposed on perfectly lawful businesses to lock out of their premises not only the sick but also the healthy.
It does not matter if you test negative for Covid – you still cannot go to a nightclub, or an indoor gig. It does not matter that you have been double-jabbed, you still cannot take your grandchildren for an hour’s run-around at a soft play.
It is increasingly hard to argue that these restrictions are necessary, which is why business organisations representing these sectors are contemplating legal action. The law has two key tests it applies to determine whether something is necessary. There must be a rational connection between ends and means. And the means used must be the least restrictive available means.
The rationality of ongoing restrictions is certainly questionable – how can it be reasonable to allow football fans to gather in large numbers but not to allow parents to attend so-called graduation ceremonies of young children leaving nurseries? Such objections may have political purchase, but they are unlikely, I think, to compel a judge to rule that restrictions are unlawful.
Of greater legal weight is the contention that our rights and freedoms are now being impaired more restrictively than is necessary. The blanket ban on nightclubs, soft play centres and the like, cannot be justified when more carefully tailored options are available.
This is the argument the churches successfully ran in the Court of Session earlier this year when it was ruled that the ban on opening places of worship was disproportionate and, for that reason, unlawful.
It does not surprise me that the courts are now being invited to step in to end emergency powers that have already started to be exercised for too long. Parliaments are much better at conferring extraordinary powers on ministers when panicked by a new emergency than they are at bringing those powers to an end when, truth be told, the emergency is over.
Coronavirus has not gone away, but the risks it poses are no longer the same as the dangers we faced in early 2020. We need to adjust our emergency powers accordingly. If legislators refuse to do that, the courts soon will. Living with coronavirus will be part of the new normal.
Living with never-ending emergency powers, however, should not be.
The blanket ban on nightclubs, soft play centres and the like, cannot be justified when more carefully tailored options are available