Thread by @GeorgePeretzQC

This is fascinating: and also provides a case-book example of the potential value of judicial review. Thread.

https://twitter.com/tortoise/status/1328657139154481152

Preliminary and important observation: I cannot speak for the accuracy of Matthew’s story - and like any journalistic account, it doubtless leaves out much of relevance. In particular, the case for a lockdown probably didn’t really depend wholly on the 4,000 deaths/day estimate.

So let’s make this a bit abstract (but as the story shows, a realistic abstraction).

A government takes a measure with huge impact on many people (including on fundamental aspects of life such as the right to assemble, to spend time with family, to travel, to attend public worship) on the basis of flawed data that it fails properly to interrogate.

That is bad government, on any view.

Can you rely on the political system to correct it? Well, perhaps not. MPs are under pressure in a crisis - and depend on what government tells them. And in this case (as so often) the powers could be used without involving MPs at all.

Where does judicial review come in? Well, in general terms, public law requires decisions taken under public law powers to be rational. In very crude terms the argument for them must “stack up”.

If a decision is based solely on data that are on any view flawed, then the decision can’t stand.

And the process of JR - which requires govt to explain and disclose the relevant facts and documents; the duty of candour - tends to expose cases where the pillars of reasoning supporting a decision are built on quicksand.

Moreover, where human rights are in play (assembly/family life/exercise of religion etc) as they are here, then govt has to provide (to sum up complex law heroically) pretty solid reasoning in support based on pretty solid evidence.

So JR provides a valuable forum where a bad government decision, based on flawed evidence and affecting many people severely, can be scrutinised.

Note: I am *not* saying that a court would strike down the lockdown decision in this case. There are very likely to be - I happen to think there are - a host of further reasons that support it in addition to the forecast at issue (which may have been sounder than appears here).

But if you consider that what Matthew sets out is a realistic account of how a decision like this could be taken, then you see the force of an argument that judicial scrutiny of the adequacy of the reasoning behind it might be a valuable safeguard we should be slow to cut back.

FAO lockdown sceptics such as @toadmeister.