The prime minister’s orders on Monday night are a remarkable example. The Coronavirus Bill had only just been introduced into parliament. It would, when passed, confer draconian powers on ministers to control the “gathering” of any two or more people anywhere and to restrict a person’s right to enter of leave any “premises”, including that person’s home or car . . . or tent. However, in his press conference Boris Johnson purported to place most citizens under virtual house arrest through the terms of a press conference and a statement on the government website said to have “immediate effect”. These pronouncements are no doubt valuable as “advice”, even “strong advice”. But under our constitution neither has the slightest legal effect without statutory authority.
At the time of writing (Wednesday morning), it is unclear what power the prime minister thought that he was exercising. The relevant powers of the government are contained in the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004. But it is doubtful whether either authorise the prime minister’s orders, which is presumably why the Coronavirus Bill has been introduced.
The ordinary rule is that a person may not be detained or deprived of his liberty without specific statutory authority. The 1984 act contains powers to restrict movement, but they are exercised by magistrates and apply only to particular people or groups who have been infected or whom they may have infected. The Civil Contingencies Act confers a temporary power of legislation on ministers that is exercised in a national emergency, but no specific power to detain people at home.
In the present national mood the prime minister’s orders will probably have strong public support and people will be inclined to comply whether they are binding or not. Yet we are entitled to wonder what kind of society we have become when an official can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary…
These are not just technicalities. There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something even in the face of a pandemic.