The Coronavirus Bill and the Emergency Powers (Defence) Act 1939.

When trying to make sense of the Coronavirus Bill – we should keep in mind the dissenting opinion of Lord Atkin in Liversidge v Anderson [1942] AC 206. It was a case heard at the height of the Second World War and concerned the extent of the emergency powers vested in the Executive. Lord Atkin was a lone rational voice in defence of the rule of law. It is an outstanding speech, citing (among much else) Cicero and Lewis Carroll and contains the following memorable lines:

  • In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace:
  • I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive;
  • It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
  • In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.

Lord Atkin was (at the time) castigated for his outspoken condemnation of the misuse of the Emergency powers – in much the same way as Baroness Hale was castigated for her dissenting opinion in R (MacDonald) v. Kensington and Chelsea [2011] UKSC 33. History has however vindicated Lord Atkin as inevitably it must (in time) vindicate Baroness Hale.

Emergency powers may be necessary but their interpretation and their application must be rational and they must – so far as is humanly possible – respect fundamental rights. Severing the rights of disabled people and their carers to basic services – cutting them adrift from vital support for such needs as washing, hygiene, feeding, social contact and the like – is something that none of us should tolerate, and not simply because it makes no economic sense and will inevitably put yet further strain on our front line emergency services.

Posted 20 March 2020

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