Man Taking Legal Action Over Prison-Like Conditions at Government-Approved Quarantine Hotel

Without a deeply accepted protection of inalienable rights, this danger always exists, and plenty of countries ignored constitutional protections

Constitutional protections in the form of rules saying the government can’t do x, y or z will never be much good. The flaws I’m talking about are (primarily) the ones which prevent the public properly holding politicians to account, which concentrate power centrally and which force the courts to uphold incoherent and unjust laws.

Obviously, if the underlying problem is with the public, and they are in fact getting the government they deserve, then no constitution will prevent abuse. But as long as we go along with constitutional arrangements that are glaringly inadequate we can’t reasonably expect to be well-governed.

A law preventing government from brainwashing the public would be useful

I totally agree. As I wrote in a blog post last year, “When government ministers justify the suspension of fundamental liberties with a misleading narrative that they themselves have fed us, they usurp our sovereignty as surely as if they were keeping a medieval king ignorant and isolated, so that they could rule in his place. The courts should judge them accordingly.”

It’s clearly the lack of restraint on infringements of essential individual rights. […] If we depend simply upon the gullible ‘holding politicians to account’ on basic ethical issues, we are, as seen, truly f.ed.

Yes, indeed. That’s why I included as one of the primary flaws the fact that the courts are obliged to uphold incoherent and unjust laws, and it’s why I’ve been arguing for years for a legal principle that laws must be coherent.

That’s an issue that the courts face with all kinds of words in all kinds of situations so they routinely interpret words according to normal usage.

Well, that’s not quite how it works. In a legal context, it would mean coherent and just when all aspects of it have been examined forensically, not just according to fashionable prejudice. And coherent means, among other things, that laws should be consistent with uncontroversial, generally accepted principles – including, for example, the principle that officials should act with due care and attention. I don’t see how any court could find that the Government has done that.

Do you really think that Judges are immune from cowardice, gullibility, groupthink and protecting their own careers?

No, I don’t think that and I’m well aware that they might fail to live up to the high standards we’d like them to hold to. In my experience, though, most people try to live up to high expectations but find it quite easy to live down to low ones. So I’m inclined to regard them as innocent until proven guilty: the arguments that have been presented to them so far simply haven’t given them a reasonable opportunity to declare the governments actions unlawful.

I think every court would have found that the government acted with due care and attention.

That’s your prejudice. You may well be right, but until there’s a case putting that argument I see no reason for believing they would reject it.

It’s not so much optimism as scepticism: I’m reserving judgement on judicial integrity until I see clear evidence one way or the other. My position stems, in part, from a belief that how we act now will affect how easily we can establish a system fit for a mature society. Twenty years ago I assumed that some kind of revolution was going to be necessary and worried about how it could be legitimate. Eventually I came up with a definition of Lawful Rebellion which effectively requires that every reasonable attempt must have been made to get grievances addressed through established avenues, whether we expect those attempts to work or not. Basically, my position on lockdown etc is that the kind of arguments that should compel the courts to declare the government’s policy unlawful have not yet been put to them. As to whether I believe they would accept those arguments … I’m not sure I have a belief on it, one way or the other. And, since I’ve been railing against the old abnormal for years, I have no great wish to see it restored; from that perspective, I’d probably be happy for the judiciary to prove themselves as corrupt… Read more »

Didn’t the Dolan case present some of those arguments, and other cases?

I think the Dolan case came closest but, as I said in my original comment here, it didn’t attempt to address the constitutional angle which (for the very reason you point out in your second paragraph) is the only way the courts could rule against what the Government has been doing. This is essentially a political issue, and the only way the courts can legitimately intervene is if there are clear grounds for saying that our political processes are working against the public interest.

Dolan’s team argued that the Government was breaking the law within the existing rules. The courts found (quite reasonably, in my view) that an action which is lawful under one law is not rendered unlawful by the fact that the perpetrator is mistakenly justifying it by reference to a different law.

Yes, it is. But then, although the Supreme Court is generally regarded as a purely legal entity, it is fundamentally a political body; a body whose primary function is to define the legal framework – including the constitutional laws which govern how the political sphere works – in ways which support social stability. (Operationally, most of its activity might take place within the framework of law but it does not, in fact, operate within the legal system, it sits on top of it.)

The political sphere can’t operate peacefully without a functioning legal framework and, if political processes become corrupt, the courts have the political power to demand constitutional change. Failing that, the country will have to fall back on force majeure.