Victoria University of Wellington’s Dr Dean Knight was at the High Court case that examined the legality of our lockdown – a hearing that told us something about the rule of law 

The legality of our Covid-19 lockdown was challenged in the High Court last week, with three judges considering a judicial review brought by an interested citizen, Andrew Borrowdale, against Director-General of Health Dr Ashley Bloomfield and Prime Minister Jacinda Ardern.

It will be some time before they rule on the legal basis for the Government’s actions. But the hearing tells us something about the rule of law: its importance and what it demands of government.

Concerns about the legal foundation of the lockdown emerged in April and May, although the Government insisted its actions were legally sound. In our system of constitutional law, a judicial review allows the courts to rule on the legality of government action, without second-guessing the wisdom of the policy choices made by ministers and officials. That’s entirely proper. The Government’s obligation to use power lawfully, especially when it affects the rights and interests of citizens, is a fundamental one. The dangers of our governors abandoning the constraints of law – even if done with good motives and outcomes – are obvious. Among other things, the rule of law helps allocate power to ensure it is democratically legitimate and fuels accountability processes to ensure power is not abused.

After listening to nearly three days of argument in the case, it became striking that Borrowdale and the Government have very different stories about the role of law in the lockdown. The question of whether the Government’s actions during the pandemic were lawful is not an easy one – and one that perhaps turns on different views about what is law and how the different tools of the state can be used to change the behaviour of citizens.

Borrowdale sees law as obligatory state commands – and he was worried about the absence of clear, appropriate and legal command(s) mandating the lockdown.

He argued that, in the first nine days of lockdown, the Government hadn’t issued adequate commands – precise, enforceable rules – backing up Ardern’s statements from the Beehive podium to stay home to beat the virus. There was a troubling gap between what was being asked of us and the legal rules actually in play. This risked, he argued, the Prime Minister usurping Parliament, effectively legislating in her daily briefings and suspending important laws protecting our rights.

And, when commands were issued, he says they weren’t the types of commands Parliament intended could be issued by the Director-General, even in an emergency. The health order issued nine days into the lockdown formally requiring us to isolate in our bubbles, he argued, couldn’t have been given to everyone. The command could only be given on a case-by-case to individuals suspected of being infected. In addition, the health order closing all premises except those essential businesses should have been a command to designated types of premises, without leaving matters to be worked out by ministry officials. Ultimately, as our rights were at stake, the power to issue these commands should be read narrowly to preserve our freedoms.

In contrast, the Government spoke of law as a network of various legal and other tools – tools that shouldn’t be blunted or else they wouldn’t deliver on their essential emergency purpose.

So, the Government argued, the lockdown was not effected by one single legal command. Numerous measures were engaged and engaged incrementally as things evolved – a bit of a messy rolling maul. At its heart was public health advice to people to do the right thing: initially to wash our hands and ultimately to stay at home. That was backed up by different legal powers that could, and were, used as and when necessary: on-the-ground public health and civil defence powers of medical officers of health, civil defence controllers and police. There was no gap in the early days between Ardern’s urging from the podium and the complex network of legal powers (and, if there were any problematic gap, that urging could be taken as the implicit exercise of Bloomfield’s powers to issue a command to stay at home).

And when formal commands to stay at home and close premises were issued, these were exactly the type of commands, the Government argued, that Parliament contemplated the Director-General could issue when allowed to do so by ministers. The purpose of emergency public health powers is to give the Government the power to liberally, swiftly and decisively respond to dangers – in ways that cannot be known until the risk of a particular emergency arises. Rights concerns shouldn’t restrict the availability of these tools; rights consistency was only relevant to their exercise in practice and whether the measures were justified and proportionate (a question not squarely in issue in the judicial review). Nor had Bloomfield delegated the heavy lifting on what should be treated as an essential business to officials: the reference to “businesses that are essential to the provision of the necessities of life” in the health order was enough and the ministry website was merely advice about what met that definition.

The New Zealand Law Society also chimed in, invited by the court to provide its take on the questions from a neutral and independent position. The society shared the concerns about the early days of lockdown being a bit messy and argued the rule of law expects greater certainty, especially clarity about what obligations come with legal weight and enforcement. But it wasn’t sure this translated into an actionable legal error. Also, like the Government, the society was worried reading the power to issue health orders too narrowly would hamper the Government’s ability to protect us in these types of emergencies.

Much, then, depends on the perspective one takes to legal tools and the rule of law. We will find out in due course what the court makes of the various arguments. And, given my poor history of picking winning horses, I refrain from making any predictions (although, for what it’s worth, my own analysis has always aligned more with the legal network of emergency tools point of view).

It might seem a little odd this is all being debated now – months after the lockdown was lifted and after Parliament has now passed a new law giving ministers more direct and precise powers to do the same if that proves necessary. Perhaps so.

But this judicial review is only one story, and only a partial story, of the propriety of the lockdown. It didn’t address the overall wisdom of our move to isolate in our bubbles and the Government’s overall emergency response. Nor did it unpick why the lockdown was so effective in changing our behaviour (why did we stay at home?) – or why our lockdown was so effective in eradicating the virus. Nor did it dive into the vexed question of enforcement on the ground by the police and others.

This judicial review was more a question of ensuring the right people used the right tools during the lockdown (and, if the necessary tools did not exist, to seek them from Parliament). During the lockdown, our day-to-day liberties were traded for our health and wellbeing – a trade-off that over 90 percent of New Zealanders believed was wise and justified. But, when our governors require such a trade-off, the rule of law demands it is made with care and in ways that allow us to hold them to account for that decision. All those before the court accepted the Government’s actions needed to be done in accordance with law – and the court will ultimately decide whether that has been so, by sorting out what law was in play and what it all meant.

Leave a comment