Jelena Gligorijevic* – As the Government begins to ease the lockdown, serious questions remain about the lawfulness of these extraordinary measures.
Parliament’s Epidemic Response Committee has indicated it will issue summonses for the production of legal advice about the legal basis of the powers exercised by the Government over the past few weeks. It is possible the Committee wants to find out whether or not the Government refused to follow any legal advice warning it about insufficient legal basis for its lockdown plans.
This advice is covered by legal professional privilege, which can be waived by the Government, or altogether lifted by Parliament. The Attorney-General has said it would be “dangerous” for Parliament to do that.
In fact, at a time when the Government has exercised sweeping coercive powers suspending New Zealanders’ basic rights and liberties, it would be dangerous for Parliament to shy away from holding it to account – from interrogating whether the Government acted according to law.
Did The Government Break the Law?
Did the Government break the law in removing New Zealanders’ fundamental rights and liberties, and taking fine-grained control over the country and its individuals? Senior law academics say it is likely, and I agree with them.
To summarise the legal landscape: the Government used national epidemic and emergency legislation to activate emergency powers, including those conferred to medical officers under the Health Act 1956. Under section 70, the Director-General of Health issued notices ordering that coercive and enforceable measures be taken, significantly restricting civil liberties, including measures to isolate or quarantine any individuals.
The problem is that it is not entirely clear the Health Act provides a legal basis for this country-wide lockdown. Were the notices issued beyond that which section 70 actually permits? Although a High Court Judge has recently opined that they were not, (A v Ardern), as Professors Geddis and Geiringer argue, the motivations, context and specific arguments of those applications meant that particular legal challenge was “doomed to fail”. In any event, Justice Peters’s opinion on this matter is obiter (not binding in law) – the case was not argued on those grounds, and was dismissed on different grounds.
What about the New Zealand Bill of Rights Act 1990? My senior colleagues are right to doubt that the Health Act notices were “demonstrably justified”, or proportionate, limitations on protected rights and liberties, as required by section 5. Aspects of the section 70 notices and concomitant measures suggest a disproportionality between means (the degree of interference with liberties) and ends (response to the global pandemic). These matters were not raised or addressed in A v Ardern.
Since A v Ardern, the Police Commissioner has had to respond to concerns raised about the legal basis for police powers to enforce lockdown orders. The Deputy Police Commissioner had expressed such concerns in the initial stages of the lockdown, and governmental legal advisors had also warned there was little or no legal basis for police powers of enforcement, at least at the beginning of the lockdown and before subsequent section 70 notices were issued.
The Epidemic Response Committee
It is in this context that Parliament’s Epidemic Response Committee is planning to issue summonses to the Solicitor-General, the Director-General of Health, and the Police Commissioner, to produce the legal advice given to the Government for these extraordinary measures.
This Committee is a parliamentary select committee, set up on 25 March to continue scrutiny of executive government during the lockdown, when ordinary operation of the House of Representatives was effectively disabled. Its responsibility is to consider matters relating to the Government’s management of COVID-19, and to report to the House on these matters.
The power of a select committee to issue summonses that a person appear or documents be produced is set out in the Standing Orders of the House of Representatives. Such a summons must be signed by the Speaker of the House, and is served at the Speaker’s direction.
On 30 April the Epidemic Response Committee asked the Director-General of Health and the Police Commissioner to provide the date, subjects and source of all legal advice they received regarding the relevant Health Act powers. Both responded on 5 May with the details required, but not the substantive advice, which was not sought. Provided that the Speaker’s signature is obtained for the summonses, the Committee could now, as it has said it intends to, order that legal advice to be revealed.
Crown Law advice
The legal advice – as legal advice – is subject to solicitor-client privilege, exempting it from ordinary disclosure obligations, including under the Official Information Act 1982, and Privacy Act 1993, and Evidence Act 2006.
However, the privilege is not absolute, and can be lifted by the courts and by Parliament. This privilege can also be waived by the client: here, the Director-General of Health and the Police Commissioner.
Decisions to waive this privilege must be approved by the Crown Law Office (headed by the Solicitor-General) and the Attorney-General. The Solicitor-General in New Zealand is not the deputy of the Attorney-General; she is entirely apolitical, being neither a member of Parliament nor a member of Government. However, in matters of waiving privilege, it is the Attorney-General, that is, the Government, who will ultimately decide. As clause 4.70(c) of the Cabinet Manual provides, there is a need to ensure that no single release will create an undesirable precedent.
Solicitor-client privilege is an ancient common law privilege. It is underpinned, in great part, by the concern to protect liberty, through the maintenance of a fair and accessible justice system: it serves to ensure all persons can receive and act upon legal advice without fear of interference, self-incrimination and forfeiting their liberties and entitlements. It is central to the administration of justice (B v Auckland District Law Society).
When the Crown is client, as in this case, privilege serves not only to uphold the proper administration of justice, but also to protect the Government from improper interference by the other branches of government: the courts and Parliament.
In the constitutional context, the privilege also is a component of the doctrine of separation of powers. Routine judicial or parliamentary insight into legal advice provided to executive government would undermine the separation of powers, and could thereby impede the efficient and proper administration of government. It could also undermine the comity between the three branches, and the respect and restraint practised as part of the separation of powers in Westminster governments, where the division of powers is not entrenched, and not as strictly observed, as in other constitutional arrangements (for example, in the US and Australia).
Nevertheless, if the Government declines to waive privilege over this legal advice, Parliament can lift that privilege, through any summons issued on behalf of the Epidemic Response Committee and at the Speaker’s direction.
The power to issue summonses is, as with all powers of Parliament, governed by the law of Parliament, and covered by Parliament’s privilege of exclusive cognisance: it cannot be challenged in the courts. Once the Speaker directs that such a summons be issued, the Government would be forced to disclose the legal advice provided.
If it refuses to comply, the Government may be held in contempt of Parliament. Failing to obey a summons issued by order of the Speaker is a specific example of contempt set out in the Standing Orders.
Many will remember that in 2018 in the UK, Theresa May’s Government was held in contempt of Parliament for Attorney-General Geoffrey Cox’s initial refusal to disclose in full Cabinet legal advice on the Brexit deal.
The principles underpinning Crown legal professional privilege (proper administration of justice, and separation of powers) are important for the reasons stated above, and the Epidemic Response Committee should advert to them before issuing any summonses.
However, these are not absolute principles, just as legal professional privilege is not absolute. There can be more important, more pressing, reasons for lifting privilege covering Crown Law’s advice to the Government.
Having set out why the Government’s actions are likely unlawful, Professor Geddis has now urged the Committee to “back off” from holding the Government to account in this instance. Here is why I think the Committee has a constitutional mandate to hold the Government to account, even in asking for the Crown Law advice. It is up to the Committee itself to exercise its political judgment on how it proceeds.
Separation of powers is not the only, and certainly not the primary, constitutional principle in New Zealand’s Westminster system: the sovereignty (and supremacy) of Parliament, and the rule of law (as legal accountability of executive action), are pillars of the constitution, upholding the liberal democratic order, in the absence of a codified and entrenched constitution.
Whereas elsewhere the separation of powers rigidly divides governmental power in large part to protect individual liberty from the concentration of power in one entity, in New Zealand it is not so rigid, and not the primary means of controlling governmental power and protecting liberty.
Parliamentary sovereignty and the rule of law serve instead as the primary mechanisms for such protection. Above all, the separation of powers, itself a means of tempering the excesses of governmental power, should not be deployed to undermine Parliament’s attempts to hold the Government to account.
This is why the Attorney-General’s statement about the “dangers” of parliamentary scrutiny is itself dangerous in a liberal democracy.
In New Zealand’s liberal democracy, parliamentary sovereignty importantly ensures the political accountability and democratic legitimacy of governmental action.
New Zealand’s Parliament is the provider and scrutiniser of Government.
It provides executive government according to representative democracy by recognising as Head of Government the leader of that party of elected members which commands control of the House. It scrutinises executive government by requiring Ministers answer to the House for their actions, and by conducting select committee inquiries into matters of government (amongst other matters). Parliament’s sovereignty is reflected in the exclusive cognisance it has over its proceedings: the power of select committees to issue summonses is not restricted either by judicial or executive limitations, and it is regulated solely and directly by an elected House of Representatives.
It is with that democratic mandate that Parliament’s select committees can choose to compel the Government to reveal information, including its legal advice, even if it may test the separation of powers.
In a state of emergency, where the Government has activated extraordinary powers restricting liberties, a select committee set up exclusively for the purpose of scrutinising the Government’s actions in that emergency ought to prioritise its democratic responsibility, as a function of a sovereign Parliament, to hold the Government to account.
Where the Government’s actions are of doubted legality, as they are here, a sovereign Parliament’s responsibility to its electors must take precedence over its concern not to interfere with the executive’s administration of government. A crucial part of Parliament’s responsibility in scrutinising a Government exercising extraordinary coercive and liberty-diminishing powers is to ascertain whether the Government chose to follow legal advice about the limits of its powers.
Would Parliament’s lifting of legal professional privilege set a precedent? It would in any event not create a binding rule or duty on future parliamentary committees to lift legal professional privilege whenever it might arise. Parliament’s lifting this privilege in one instances does not eliminate the privilege altogether.
But what about creating an instance which can be invoked by later parliamentary committees considering whether to lift such privilege, and in particular that covering Crown Law advice? I do not think it would, or that it should. The circumstances facing the Epidemic Response Committee at present are patently exceptional: a Government that is suspected of acting outside the law, possibly against legal advice, so that it might use coercive measures to address a global pandemic, which have diminished basic rights and liberties to an extraordinary degree.
Whatever Parliament does at present to hold the Government to account must, in future, be contextualised; and this exceptional context and circumstances should prevent future parliamentary committees, in different and non-exceptional circumstances, from invoking this present instance as a precedent that lifting legal professional privilege should be done lightly or routinely.
Dubious legality of governmental powers implicates the rule of law, and straightforwardly so. In New Zealand’s liberal democracy, it is the rule of law, and not any individual or group of individuals in power, that is a sacrosanct.
Where the particular governmental action has had an immediate, immense and all-encompassing effect on individuals’ liberties, the need intensifies for Parliament, alongside the courts, to assess the legality of that action. It may be that another, more appropriately framed, judicial review is brought before the High Court; until then, there is a pressing demand that the parliamentary committee specifically responsible for monitoring the Government’s actions at this time be able to ascertain whether and how the Government has been acting in accordance with law. Legal accountability of governmental action is not the exclusive domain of the courts, and especially not in such extraordinary circumstances.
The Epidemic Response Committee is not obliged to make public any legal advice it receives. Select Committees are empowered to receive private or secret evidence, to conduct confidential proceedings, and to produce confidential or redacted reports. If appropriate, this could moderate the effects of lifting privilege. And these effects – testing the separation of powers and the importance of solicitor-client privilege – should be assessed in the context of the state of emergency currently in place in New Zealand.
Parliamentary sovereignty and the rule of law, after all, are not suspended in states of emergency.
On the contrary, it becomes all the more imperative that executive government be held accountable for its actions. New Zealand has not entered Carl Schmitt’s Ausnahmezustand, or ‘State of Exception’ – yet. So much is clear from the very establishment of the Epidemic Response Committee, which should discharge its democratic responsibilities to scrutinise and hold Government to account.
If there is ever a time for Parliament to take unprecedented steps to hold the Government accountable for the legality of its actions, it is when the Government has exercised unprecedented powers with profound effects on individuals’ lives, livelihoods and liberties.
*Jelena Gligorijevic, AFHEA, is a Lecturer in Law at the Australian National University. She is a PhD graduand in Law at Trinity College, Cambridge, and holds degrees from the University of Canterbury and the University of Cambridge. This article was first published by the UK Constitutional Law Association.
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