During the Covid-19 pandemic, the British state has exercised coercive powers over its citizens on a scale never previously attempted.
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I do not doubt the seriousness of the epidemic, but I believe that history will look back on the measures taken to contain it as a monument of collective hysteria and governmental folly.
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The courts will I suspect be tempted to give the government more leeway than they are entitled to. But on well established legal principles, the powers under the Public Health Act were not intended to authorise measures as drastic as those which have been imposed.
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The police’s powers of summary arrest are regulated by primary legislation, the Police and Criminal Evidence Act 1984. Under Regulation 9(7) of the original lockdown regulations, the government purported to amend that Act by enlarging their powers of arrest so that they extended to any case in which a policeman reasonably believed that it was necessary to arrest a citizen to maintain public health. I need hardly say that the Public Health Act confers no power on ministers to amend other primary legislation in this way.
In fact, the police substantially exceeded even the vast powers that they received.
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The Public Health Act requires any exercise of its regulation-making powers to be proportionate. The government has included in every regulation to date a formulaic statement that it is. But its actions speak differently.
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The British public has not even begun to understand the seriousness of what is happening to our country. Many, perhaps most of them don’t care, and won’t care until it is too late. They instinctively feel that the end justifies the means, the motto of every totalitarian government which has ever been.