Coronavirus and the Rule of Law: A Warning From History

Ian McDougall | EVP & General Counsel | LexisNexis L&P

From time to time, every nation has an emergency of one kind or another to face. It tests all aspects of that nation -- the people, the facilities, the finances -- and very occasionally it also tests a commitment to the Rule of Law.

Let us remember that the Rule of Law is the crucial building block for any society to be stable and prosper. Without the Rule of Law there is no prosperity; the vulnerable in society are left behind or oppressed. Without the Rule of Law a nation’s prosperity declines, human rights are abandoned and social order eventually breaks down. It is as inevitable a consequence of the lack of the Rule of Law as is the certainty that the sun will rise tomorrow.

And speaking of the sun rising tomorrow, let us also remember that a crisis passes. The terror of the moment recedes into history. So it will be for this latest crisis. When it does pass, it is crucial that the Rule of Law remains strong in its wake. Society is built on the foundations of the Rule of Law and if, following this crisis, we are still left with a strong commitment to the Rule of Law we will have strong foundations upon which to recover and build prosperity for all members of the community.

History has taught us lessons. Are we prepared to learn from them?

During the Second World War the democratic governments implemented drastic measures to limit the freedom of those it considered to be a risk to its war efforts. In the United States, for example, people of “Japanese origin” were interred in camps without trial. Following 9/11 people were (and still are) held by the US without trial because of the threat those people are said to pose to it.

In ordinary times such things may be considered unconstitutional. Crises are not ordinary times. In the UK, during WW2, the press was heavily censored and public information closely controlled by the government under an Orwellian sounding “Ministry of Information.” Food was rationed. Emergency powers were taken by the government and, in particular, Ministers given extraordinary levels of discretion.

One legal case during that time (that eventually made it to the ultimate UK appeal court of the day, the House of Lords), Liversidge v Anderson [1942] AC 206, demonstrated how easy it is for even the most experienced of judges to be blindsided from the Rule of Law by the emergencies of the hour. The situation could not have been graver: At the time the case was heard, France had been defeated, as had the British army in France. A German invasion of the UK was expected at any moment and paranoia about the risk of German spies -- “5th Columnists” as they were called -- was at its height.

So the government passed a regulation that gave a minister “discretionary” power to detain someone if she was satisfied (the only requirement) that such person’s detention was necessary for “the defence of the Realm.” But what about the rights of an innocent person? Who protects them without the strength of, and adherence to, the Rule of Law?

In a decision that became infamous as a nadir of the judiciary’s relationship to the Rule of Law, a majority of the judges found that the minister had a wide discretion which wasn’t challengeable in a court. Yes, that judgement came from what many might consider to be a home of the Rule of Law! In the crisis, instead of subjecting a politician to the review of the Rule of Law, they tried to give a politician absolute power to detain someone.

But the true and lasting lesson of that case came from the dissenting judge, Lord Atkin. In a speech that should serve as a lesson to us all he said, “…Amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

I apply those words to the principles of the Rule of Law. (See the LexisNexis definition at https://www.lexisnexisrolfoundation.org). We must be careful that we do everything we can to deal with emergencies but, in doing so, we must not sacrifice the Rule of Law. That is the path to tyranny and when rights are lost they are difficult to recover.

The LexisNexis definition of Rule of Law.

Ultimately and thankfully for the Rule of Law, Lord Atkin’s view, namely that even governments are subject to the review of the law, prevailed and became the approach of much of the global legal world.

We are now living through unprecedented times of a different but no less serious kind. The European Commission is planning to ban all non-essential travel throughout Europe's Schengen free-travel zone. More countries are implementing lockdowns of various kinds and closing their borders to try to limit the spread of Coronavirus. Spain and Italy are isolating whole towns and cities. The United States has banned travel between the European Union and the US.

We are witnessing an unparalleled crisis in public health. There is no clear way to see when the pandemic will end or what further restrictions may become necessary. Further restrictions may become necessary that in normal times would be considered an infringement of civil liberties. Indeed, this blog may be out of date at the moment of publication!

The latest idea suggested by a number of people is that jury trials should be suspended (not abandoned I presume). I am sure other impacts will be felt: access to the justice system will be slowed down, maybe emergency health legislation passed, and who knows yet what more may be needed.

But let us remember the lessons of history: Even in the midst of the most serious of crises there is no need to abandon the Rule of Law. Society is not benefited in the long run by removing the foundations upon which it is built. The taking of extraordinary powers should be a mechanism to bypass bureaucracy not the Rule of Law!

We should remember that in a crisis, the people who are affected most by the abandonment of the Rule of Law are the most vulnerable. Sticking to important principles is not always easy but they are the foundation of civilized society and a crisis should not take away our civilization.

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