Jamie Bryson: We are drifting blindly towards a new lockdown – and we do so at our peril

It is a scandal that such a drift is taking place without enhanced public, legislative, and judicial scrutiny on the decision-making, coupled with a rational discussion about the hidden cost of enforced lockdown and the draconian infringements on liberty that it, by necessity, imposes.

The initial lockdown restrictions across the UK are subject to two judicial review proceedings. In England, a case brought by Simon Dolan is currently before the Court of Appeal, and here in Northern Ireland I have brought a specific challenge to the Northern Ireland Regulations on the grounds that they were unlawful and that the PSNI’s implementation of the regulations were wrong in law.

In the Court of Appeal’s order listing the Dolan case, it stated that the challenged regulations “impose the most restrictive regime on the public life of persons and businesses ever – certainly outside times of war”.

With such an authoritative judicial assessment, it is difficult to see how both cases do not eventually land at the door of the UK Supreme Court.

Many of the regulations were brought into force by statutory instrument, under the delegated powers of the health minister, and therefore were not subject to the kind of robust Assembly scrutiny before coming into effect that such infringements upon personal liberty clearly warrant.

The lingering threat of incrementally re-imposing restrictions, or indeed “full lockdown”, illuminates the need for a reasoned and rational public discussion on the issue of restrictions.

It is easy to adopt the most populist slogans of the day, as many did at the beginning of lockdown, and repeat them ad nauseum.

Indeed, much of such sloganeering was high-minded – people with large spacious gardens and a comfortable lifestyle preaching to the ‘little people’ about how they should stay locked in their flat with no garden, or should not dare travel with their child to exercise, or breathe in fresh country air.

It is a core aspect of personal freedom and liberty that, so long as you do not harm others, each person should be able to live freely within the confines of democratically made laws.

That personal freedom has been curtailed; we are told for the greater good. It is fair therefore that we should be free to question the legal, scientific, and economic basis for the decisions affecting our lives.

We were told by the health minister that we faced up to 15,000 deaths.

At this point in time around 500 people have sadly passed away, and even that number is inflated because it includes people who may not have died of Covid-19, but may merely have tested positive but died of other illnesses.

Most of the community, myself included, took this early assessment from the health minister and willingly supported the restrictions. It has since transpired that the methodology behind that predication appears to have been wildly wrong. Why therefore should we blindly trust such decision making going forward?

Lord Sumption QC, a former Supreme Court Justice, described lockdown as “the greatest interference with personal liberty in our history” before going on to point out that “even in times of war we never confined the entire population to their homes, 24/7, if they did not have some excuse acceptable to a minister”.

I do not think anyone could deny that the legislation imposing the regulations was made in a rather hurried fashion. It was always therefore likely to follow that absurd and unworkable consequences would flow from efforts to enforce it.

Article 8 of the European Convention on Human Rights imposes a ‘quality of law’ test; effectively requiring that laws should be foreseeable as to their effect, to enable citizens to regulate their behaviour accordingly. It’s hard to see how the Covid-19 regulations meet that test, given the mass confusion they have engendered.

The PSNI woefully misinterpreted the law on several occasions, effectively at times enforcing laws which did not in fact exist. That some would suggest such errors, however well-intentioned, should go without challenge strikes me as wholly illogical.

If you are willing to tolerate the enforcement of laws which do not exist on one occasion, then from where do you suppose you will derive the moral legitimacy to object on the next occasion?

Whilst politically unpalatable I am sure, it is also worth pointing out that the imposition of any new lockdown would struggle to have any legitimacy, given Sinn Fein’s flagrant breaches of lockdown guidelines when it suited them.

All of the aforementioned reasons, and many more beyond the scope of the space available in this article – including well-founded concerns around human rights and the rule of law – illuminates the need for a reasoned, rational, and robust public debate in relation to suggestions that we may start incrementally creeping back towards lockdown.

– Jamie Bryson is a prolific loyalist blogger and commentator

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