We are somewhat lucky that in the legal blogosphere debates tend to remain calm and rational. Unlike politics or sports which are more subjective than people would like to admit, everyone is starting with the same source material (the law) and developing their analysis from there. This means that while there is a divergence of opinion it is relatively easy to see where someone else is coming from.

That decorum took something of a blow this week as important questions were raised about the lawfulness of the lockdown.

Whereas my own podcast focused on the broader Coronavirus Act 2020, debate raged about the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 that were passed without being put before Parliament. The justification for enacting legislation in this way was the urgency of the situation but the actual legal powers derived from the Public Health (Control of Disease) Act 1984.

It is worth reading both the original piece by Jeff King as well as the response by Robert Craig in full but essentially the question comes down to whether you think what we are going through at the moment amounts to ‘special restrictions’ or ‘quarantine’. In my view the arguments by King that the regulations are proportional is just not as convincing as the concerns raised by Craig regarding the excesses of government power and the importance of liberty built into the statute but you can make up your own mind.

Perhaps the more interesting thing is that the original piece by Jeff King was published on the UKCLA blog who then seemed to refuse to publish a rebuttal despite offers from noted legal scholar David Allen Green. The UK Constitutional Law Association (UKCLA) are supposed to be independent but are unwilling to provide a forum for debate on this topic. There are two possible reasons for this: they either support the government on this issue unconditionally or, more likely, are scared of contradicting the restrictions set out in the legislation.

The problem is that the valid critique that we eventually got from Robert Craig on the UK Human Rights Blog does not equate to advocating for people to go outside and flout the law. Indeed there is a caveat in bold at the start of the piece that makes this exact point. I would go further and suggest that while in terms of the science the regulations are the correct response that does not by itself make them legal.

The coronavirus pandemic is (to be quite frank) scary and has led to a huge amount of disruption in our lives whether that is to employment situations, care for ourselves or vulnerable relatives or even to our forms of entertainment. That does not mean, however, that intelligent and robust criticism of the law should fall silent at this time. This crisis presents not only a challenge to society but also to our core values and assessing the quality of our response is a fundamental part of how we will move forward together.