Meeting of the Parliament 24 March 2020
I will reflect in my remarks on the nature of emergency power and human rights.
Ruth Davidson spoke about John Stuart Mill; I will go even further back and start with Cicero. In times of emergency, necessity becomes the only test against which we judge the laws. Our usual standards of reasonableness or proportionality do not apply. If there really is an emergency, we do what is necessary to defeat its causes and to manage its consequences. When I say “we”, I do not mean only the Government; I mean all of us. Every citizen has a duty to do what is needed—in the old language, in defence of the realm. In short, all of us do what we need to do for the public good.
All that applies only if there is a genuine emergency. Unfortunately, we are all too familiar with Governments claiming the need for emergency powers when there is no emergency at all, but just an opportunity. That is emphatically not the case now. There is no doubt that we face the gravest threat to public health, and to our economic health and wellbeing, that we have seen in our lifetimes.
There is, of course, concern about the scope of the extraordinary powers in the bill. Powers to ban events and public gatherings will impede our freedom of movement, and powers to detain people who are suspected of being infectious represent significant interference with our right to liberty. Freedom of movement, freedom of public assembly and the right to liberty are modern human rights.
Are our ancient conventions that come from Cicero, about necessity and emergency powers, negated by modern human rights law? No, they are not; they are accommodated in our modern human rights law. If they are properly understood, there need be no conflict between emergency powers and human rights.
For example, one of our most fundamental human rights is the right to life. It is in article 2 of the European convention on human rights, and it is enshrined in the United Kingdom’s Human Rights Act 1998. It is a powerful right, because it imposes broad-ranging and wide-sweeping duties on Governments and public authorities—duties to protect life. In an emergency such as we are in, if it is necessary to detain infectious persons in order to protect life, so be it. Likewise, if it is necessary to ban events or public gatherings in order to protect life, so be it. In a public health emergency, those are best understood not as interferences with human rights, but as steps that are necessary in order to preserve the fundamental right to life itself.
None of that means that there is no more rule of law or that we should throw our critical faculties out the window and stop scrutinising Government. None of it means that ministers, or anyone else, have licence to act arbitrarily. However, it does mean that the standard against which we must judge the legality, the prudence or the propriety of Government actions and decisions changes. In a crisis—in an emergency such as this—that standard is strict necessity. The questions is not whether this is a reasonable thing for a Government ordinarily to do. The question is this: does the Government need this power?
Seen in that light, the issue of how long the extraordinary powers should last becomes somewhat axiomatic. They will last for as long as they are needed. If they are necessary, they will persist, but as soon as they cease to be necessary, they must lapse and be repealed. None of us knows how long the coronavirus crisis will last, so let us not get overly fixated on sunset provisions or arbitrary time limits on the statutory powers. The powers are necessary now, and they are necessary for the time being. They will continue to be necessary for as long as the crisis endures. For all those reasons, we should all back the bill today.