1/9 True to form the Gov digs in its heals on vires of #Covid19UK regs. I will explain why I think this is a mistake and should be rethought. 
2/9 Every lawyer that has published an opinion on the issue (bar one) has thought the regs are probably ultra vires. See ukconstitutionallaw.org/2020/04/16/tom…
3/9 In any event, powers of such magnitude plainly should have an express basis in primary legislation.
4/9 It would be relatively easy for the Gov through Parl to put the regs on a proper statutory basis. Retrospective authority for the regs could also be given legally and consistently with Strasbourg case law (similar legislation was passed following the Poundland litigation).
5/9 instead, for reasons apparently including a substantial measure of stubborness (and who knows, loyalty to their legal advisers?), the Gov will not accept that it is at least prudent to shore up the regulations.
6/9 And here's the rub: since a judicial review has been announced the consequence of this stubborness is to - once again (see Miller No 1) - pass the issue to the judges, who I am quite sure would much rather not be involved.
7/9 It puts the courts in an impossible position. If they *uphold* the regs they will be accused of generously interpretting legal powers in an emergency (aka bending the rules). Previous examples (Liversidge; Halliday; Korematsu(US)) have damaged the very institution of judging
8/9 Yet if they *denounce* the regs they will be accused of interfering in politics, blocking necessary measures and beingo out of touch with the public (pace the Miller litigation).
9/9 Cynics might say that it suits the government for the courts to be thrust into a political quagmire yet again. But now is not the time for unnecessary constitutional squabbles. The Gov should accept there is a legal risk of its making, fix the problem and shield the courts.
