There are a number of legal challenges to state-mandated lockdowns.
In Ireland, an application to challenge some of Ireland’s coronavirus laws has been made by John Waters and Gemma O’Doherty; in the Northern District of Mississippi the Temple Baptist Church is challenging the city of Greenville; and in the UK businessman Simon Dolan is seeking a Judicial Review over the Government’s emergency measures and the English Democrats are also seeking a Judicial Review.
To date, Simon Dolan’s case has received the most publicity. Lawyers acting for him have delivered a ‘Letter Before Action’ on his behalf to the Government, giving it until May 7th to respond. Mr Dolan is seeking to challenge the Government on three main points:
- Whether lockdown is unlawful because the Government implemented regulations under the Public Health Act 1984 instead of the Civil Contingencies Act 2004 or the Coronavirus Act 2020.
- The legality of the continuation of lockdown regulation, and whether the tests are too narrow, failing to take account of the economic and social impacts of lockdown.
- If the restrictions brought in by the Government contravene the European Convention of Human Rights, which cover the right to liberty, family life, education and property.
He’s also seeking to persuade the Government to make three key policy changes that will restore some of our freedoms and get the economy moving again:
- Allow gatherings of up to 100 people.
- Reopen schools.
- Review the lockdown restrictions every two weeks.
In addition, Dolan wants the Government to disclose the scientific evidence that ministers and civil servants have been relying on to make policy decisions. (Does this mean his barrister will have a chance to cross-examine Neil Ferguson about his March 16th modelling?) He’s also seeking clarity over who sits on the Scientific Advisory Group for Emergencies (SAGE) and wants the Government to publish the minutes from SAGE meetings. (You can read the minutes of NERVTAG meetings here.)
Needless to say, Dolan is a lockdown sceptic – and from some of the points he makes in the press release, its sounds like he’s a regular reader of this site.
Dolan is hoping to pay for this challenge via a crowdfunder. Readers who wish to contribute can do so by clicking here.
An economist, who wishes to remain anonymous, has been in touch to tell me why he thinks these legal challenges are important:
Most of the cases being taken to the courts focus on whether the laws that have been rushed into existence – some of them deeply disturbing – align with common law constitutional norms. They probably do not. But there is another component to this that I think needs some attention: what evidence is necessary for a politician to be given the authority to declare an effective state of emergency on public health grounds?
Take the Irish constitution, for example. It clearly states that a state of emergency can be declared in the event of war. That is clear enough criteria. But what about a public health order based on speculative models from, say, Imperial College? These – which seem to have been used to justify the lockdown – are pretty subjective and depend on model assumptions. It is not hard to come up with a doomsday scenario using one of these models, just as it is not hard to come up with a peaceful outcome. Models are like computers: what comes out is only the sum of what you put in.
This raises an important legal question that I think needs to be asked: what criteria need to be established to trust the output of one model over the output of another? This especially so if the models are being used to justify a state of emergency. My feeling is that if you put that ball in the judges’ court they won’t want to play. But it is the best defence of ensuring that this never happens again. Ever.
My feeling is that this angle needs to be explored legally in every country. And the best way to do that is coordinate on experts. There are plenty of experts who will point out how slippery forecasting models are. We just need to get them to say their piece.
Further Reading
‘Join the Legal Challenge to the UK Govt Lockdown‘, CrowdJustice (Simon Dolan’s Fundraiser)
‘A disproportionate interference: the Coronavirus Regulations and the ECHR’ by Francis Hoar, UK Human Rights Blog, April 21st 2020
‘Freedom isn’t just another word‘ by John Waters, First Things, April 30th 2020
Simon Dolan interviewed by James Delingpole, Delingpod, May 12th 2020
Irish High Court’s Judgment in Gemma O’Doherty and John Waters v the Minister for Health, Ireland and the Attorney General, May 13th
‘Sweeping Federal Lawsuit Filed Challenging Cuomo Emergency Powers‘, 2ANYS, May 18th 2020
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