How Covid Killed the Rule of Law

When I was a teenager, my headmaster successfully encouraged me to read Correlli Barnett’s The Audit of War. Barnett is a historian, and The Audit of War is about how fighting Germany in World War II exposed fundamental weaknesses in the UK’s educational system, industrial capacity and technological capabilities. The subtitle of the book is The Illusion and Reality of Britain as a Great Nation.

From about the middle of 2020, I started thinking that a good follow-up to Barnett’s book would be The Audit of COVID-19, where each chapter would deal with a different aspect of British society and how its response to COVID-19 had shown it to be deeply flawed, if not completely bankrupt. The chapter on ‘Law’ would be no exception: the legal response to COVID-19 showed that our much-vaunted attachment to the ideal of the rule of law was and is only tissue-thin, and that, when push came to shove, that ideal was trashed in favour of arbitrary rule by diktat, with hardly any protest from the legal profession or academia.

A lecture given by Lord Bingham at my university in 2006 on ‘The Rule of Law’, followed by a best-selling book of the same title in 2010, is generally regarded as providing a canonical statement of what has to be true for us to be able to say that our country lives under the rule of law. By the yardsticks laid down by him, the UK could not have been said to have been living under the rule of law during the period of lockdowns.

Bingham argued that the first requirement of the rule of law ideal is that “the law must be accessible and, so far as possible, intelligible, clear, and predictable”. This was certainly not the case during the period of Covid lockdowns, where the Government ended up creating over four hundred sets of regulations to micromanage the implementation of lockdowns. Many of those regulations inserted amendments into earlier regulations, which in turn inserted amendments into still earlier regulations and so on. The result was that it became virtually impossible to tell what the law actually said. People were forced to rely instead on government guidelines published in newspapers and on the internet to find out what they were legally allowed to do, and no one could be sure that those guidelines faithfully reflected the actual legal position.

Bingham’s third requirement for the rule of law to obtain in a given country “is that the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”. Again, this was not true under the COVID-19 lockdowns. For example, the rule of six – instituted in September 2020 and making it unlawful for more than six people to gather together in public or private – had an exception for a “gathering that takes place outdoors… for the purpose of a relevant outdoor activity”, which activity was defined as “a physical activity which is carried on outdoors and for which a licence… issued by a public body… to carry on the activity must be held by… the gathering organiser”. In his book Emergency State, the barrister Adam Wagner reports that this exception was completely unprincipled: it was intended to protect Conservative MPs’ abilities to go grouse shooting and hunting, with the then Prime Minister explaining to Dominic Cummings that “we gotta exempt grouse hunting or the [Members of Parliament] will go crackers…”.

Bingham’s sixth aspect of the rule of law ideal expressed, he said, “what many would, with reason, regard as the core of the rule of law principle. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred, and without exceeding the limits of such powers”. I would add that this aspect of the rule of law ideal demands that the courts stand ready, willing and able to intervene to ensure that ministers and public officers act within their powers.

This core aspect of the rule of law was also rendered largely irrelevant during the COVID-19 lockdowns. The regulations imposing these lockdowns were created under the Public Health (Control of Disease) Act 1984. That Act empowered an “appropriate Minister” to create legislation – known as delegated or secondary legislation – that makes “provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England or Wales”.

It is more than strongly arguable that ministers acted unlawfully by using the 1984 Act to create lockdown regulations. This is because it had never been contemplated, when the 1984 Act was passed and then amended in 2008, that it might be used for that purpose. This argument was bolstered by what is called “the principle of legality”, which roughly says that a public official cannot claim to have the power to interfere with a constitutionally fundamental right or value, such as the freedom to leave one’s home, unless that power was expressly conferred on the public official by Parliament. That principle was invoked by the UK Supreme Court in the Miller 2 case to find that the Prime Minister had no power to advise the Queen to prorogue Parliament for five weeks because his doing so curtailed the important democratic rights of Parliament to assemble and discuss the public business in a way that had not been expressly authorised by Parliament.

But when the businessman Simon Dolan attempted to make this argument in court, the courts at first instance and in the Court of Appeal dismissed his arguments as so meritless that he could not even get permission to make his case properly, with the benefit of discovery of materials on the Government’s side that might have shed more light on why it decided to use the 1984 Act to impose lockdowns. And when Dolan attempted to appeal to the UK Supreme Court, they refused even to hear his case, effectively declining to stand up for Bingham’s core of the rule of law principle.

So the way lockdowns were implemented demonstrated a complete collapse in regard for the ideal of the rule of law, and as a lawyer, I am bound to say that was a mistake. But why was the rule of law ideal shoved aside so easily? It’s not because it had to be disregarded. Regulations implementing lockdowns could have been created in a much clearer, more readable and stable fashion, and free from any unprincipled exceptions. Lockdown regulations could have been passed under the Civil Contingencies Act 2004, which expressly gave the government extensive powers to interfere with people’s liberties in an emergency. So when the Government could have dealt with COVID-19 and respected the rule of law, why didn’t it?

I think the reason is that the Government just didn’t understand the importance of respecting the rule of law ideal. The Government’s mentality was most graphically demonstrated by Dominic Cummings’ advice to Kate Bingham – ironically, Lord Bingham’s daughter – when she was appointed chair of the UK Vaccine Taskforce. His advice was: “Treat this like a wartime thing. Ignore rules. If lawyers get in your way, come to us and we’ll find ways of bulldozing them out of the way.”

The ideal of the rule of law is built on the following simple proposition: you do not belong to the state. As a result, there is and must be a limit to how much the state can require you to do to contribute to the common good. That is because the common good is only an instrumental good: it is only good because of the contribution it makes to the absolute good that is our flourishing as human beings. And to flourish as human beings we have to be allowed the space and freedom to grow as individuals; in Virginia Woolf’s phrase, to flourish everyone needs a room of their own. If we are not allowed that space and freedom, then the common good is no good to anyone.

It is that space and freedom that observance of the rule of law ideal gives us, and that is what was taken away from us during the COVID-19 lockdowns and beyond, when nothing was allowed to us that might have gotten in the way of the ruthless promotion and protection of the public interest. In the end, not even our own bodies were sacrosanct from the state’s demands. The fact that from 2020 onwards so many people enthusiastically co-operated in being deprived of their abilities to flourish as human beings is immensely disturbing, and suggests that it is not just the rule of law ideal that we have lost touch with; we do not even understand what authentic human flourishing consists in.

Nicholas J. McBride is a legal academic and author of Letters to a Law Student and The Humanity of Private Law.