Emergency powers and coronavirus -saving lives whilst protecting freedoms

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There have been two significant decisions this week concerning the pandemic. The first took place in a Scottish court where the closure of churches in Scotland during the latest lockdown was ruled unlawful.  The second was the vote at Parliament to renew emergency powers for another 6 months.

Now, both decisions have elicited a range of views.  There are die hard libertarians who see the Scottish court decision as a victory and the vote in parliament a bitter defeat. From that standpoint, as far as possible, Governments should not be allowed to restrict individual freedoms.  However, there are of course others that are breathing a sigh of relief that the Government will if necessary be able to pause or even reverse measures on the roadmap to ease us out of lockdown (the powers enacted mean that the Government can introduce a range of lockdown type measures, not that they necessarily will).

From that latter viewpoint, the Scottish court decision is a defeat.  The last thing we want if we are to fight coronavirus is for some people and groups to declare themselves exempt from restrictions. Often that sentiment has been accompanied by the question “what makes churches so special?” and the conclusion “they should suffer the same as the rest of us.”

Regular readers of Faithroots will be familiar with my position by now.  I believe that restrictions are necessary in order to combat the pandemic.  This will mean some temporary constraints on individual liberty. I am however not convinced of the necessity of all measures proposed or taken. I also believe there need to be safeguards against such restrictions becoming a long-term thing. 

I have also argued that churches should not pursue exceptional rights and privileges but  rather should stand with their communities. I argued in the Autumn that any second or third lockdown measures should not include the closure of churches, not just because public gatherings for worship are an essential aspect of life but because they, along with other sectors had demonstrated the ability to open and function safely with minimal risk of viral transmission due to the restrictions already in place. It was therefore:

  • Encouraging that the third English lockdown exempted churches
  • Discouraging that the 2nd Welsh and English lockdowns asd well as the current Scottish lockdown did include churches.
  • Disappointing that current restrictions include a whole range of activities which should be able to happen in a COVID-19 secure manner.

So, I welcome the Scottish court decision. However, I cannot help but conclude that it came far too late, after the event. It is a rather hollow victory given that churches are permitted to re-open in Scotland soon and we are all hoping that there won’t be a need for further lockdowns. Even int erms of future decision making, different crises will bring different needs.

It is therefore my view that what would have been better and what would be helpful for future potential national emergencies such as another pandemic would be to look at how measures are introduced in a way that enables appropriate controls to be brought in but ensures appropriate and rigorous accountability.

My suggestion is that emergency powers should be subject to regular renewal votes in parliament as is now the case in this situation.  However, there should be stronger provisions for judicial scrutiny and review. It simply takes far too long for cases like the Scottish churches one to get to court.  The process depends upon individuals and/or organisations being able to put together a case, find resources to bring it and then prove locus standi.  By the time a judge reviews things, the damage is already done.

So, what I believe should happen is that any regulations, measures and guidance introduced under emergency powers should automatically be submitted to the Supreme Court with a requirement for them to be considered immediately.  This would prevent delay, remove the possibility of  costly appeals process and also cut out the possibility of frivolous cases. The Judges should be looking to see whether the measures are proportionate, reasonable, have followed due process and do not breach human rights. If on review of the measures, it is determined by the Government that they need to be kept in place for a longer period, then once again the Supreme Court should be asked to review them.

I believe such an approach would keep the balance between protecting freedoms and protection from danger.