Delighted to see that the brilliant @jeff_a_king has joined the debate on the legal vires of the lockdown. /1
We take the same legal route and agree that the courts have a plausible legal basis for holding the lockdown to be within the powers of the enabling Act. Jeff is slightly less troubled than me by the counter-arguments. /2
Moving on (and noting that Jeff has another instalment still to come), I'll mention a point that is currently largely hypothetical but which Government lawyers will need to consider as they look at the future evolution of lockdown restrictions. /3
Section 45G (on which the legal basis for the lockdown depends via s45C) requires that (a) P is or may be infected or contaminated, (b) there is a risk P may infect or contaminate others, (d) it is necessary to make the order to remove or reduce that risk. /4
Suppose it to be established that people who have had the virus are no longer infectious, and that their status as such can be reliably verified by an antibody test. Could the application of 45G-type restrictions (even much lighter ones) to such people be justified in law? /5
This raises serious questions of necessity and proportionality but also (given current reliance on s45G via s45C) of legal basis under the 1984 Act. /6
If continued restrictions on those who have had the disease would be unjustified for either of both of these reasons, the law would presumably require us to go down the German route of "immunity certificates" ... businessinsider.com/coronavirus-ge… /7
… which might be a very good thing (though some might criticise it as divisive, or as creating a perverse incentive to get infected so as to win back basic freedoms). /8
Just a reminder that what can look like policy questions are often legal questions too. Thanks to Robert Simons for putting this point to me, and if Jeff deals with it, I shall be interested to see what he says. /9
