The Barrister Shining a Legal Light on The Government’s Lockdown

Barrister Warren Pyke has pointed out some important issues with the current Lockdown and the wide-ranging lockdown ‘laws’ that mimic the anti-picnic nonsense that has been seen in the UK.

Arguing that an approach more similar to Australia, permitting some ongoing business activity and acknowledging that any attempt to eliminate a disease that is here for ever will be doomed to failure, particularly when the experience of other such pandemics is that there will be ‘waves’ that continue, as indeed is already being experienced in places like Singapore and Wuhan, where the wet market-derived pandemic first arose.

A frequent adviser to the Law Society on disciplinary and other matters, Warren Pyke (pictured above) has expressed some grave doubts regarding the current lockdown – including the recent powers passed by an empty parliament.

He has written previously for the ADLS newsletter expressing reservations over the scope and legality of the lockdown prior to the enhanced legal powers recently provided to the now familiar face of Dr Ashley Bloomfield, Medical Director of Health.

Police Powers

The Health Act 1956 provides powers to medical functionaries, including the current Medical Director of Health, Dr Ashley Bloomfield, that is enforceable with the full force of the law. The Police can arrest and even imprison offenders.

Pyke commented on LinkedIn that we cannot definitively correlate the rate of occurrence of the disease to the measures so far taken, “despite how comforting this may be.”

“Which also suggests we may need to consider a long term economically sustainable set of less restrictive measures, including more testing.”

I argue that some quarantine regime is justified, just not this one. I will put forward points which are tied to the legal validity of the orders. There are no doubt contrary arguments or scientific conjectures (based on modelling or otherwise), some of which I have tried to address.
Warren Pyke

. ;the 3 April order is contrary to parliamentary sovereignty and democracy alike, particularly as it has been issued while Parliament was adjourned
Warren Pyke

He noted that “. . the 3 April order is contrary to parliamentary sovereignty and democracy alike, particularly as it has been issued while Parliament was adjourned (therefore it is beyond parliament’s immediate oversight – the mere activity of a special oversight committee is not enough to answer this point).”

“I argue that some quarantine regime is justified, just not this one. I will put forward points which are tied to the legal validity of the orders. There are no doubt contrary arguments or scientific conjectures (based on modelling or otherwise), some of which I have tried to address.

“If this offends those who think science or doctors are to be deified, so be it. My focus is on the law. I have recited some legal provisions and points that would not favour an argument advanced by an advocate, and I have done so consciously. I consider the effects of the health orders to be an issue of public importance, which needs to be aired.

“Section 70 of the Health Act was amended when the Epidemic Preparedness Act 2006 was passed. Parliament can therefore be taken to have considered and adjusted the scope of the powers under s 70 of the Health Act, to conform to the design of the later Act.

“It is doubtful that s 70(1)(f) authorises the director-general to make an order quarantining the whole population of the country. Section 70(1)(f) must be read together with its surrounding provisions and in the context of the Act as a whole, along with the triggering event which was the issuing of an epidemic notice. “

The Pyke article continues later . .

“Part 3A focusses on individuals in relation to the control of infectious diseases, of which COVID-19 is one.

“Looking first at the text of s 70(1)(f), the last four words do not enact an unfettered discretion. What the medical officer “thinks fit” is controlled by the preceding words, including the surrounding text. Directions under section 70 must be purposed to prevent the “spread of any infectious disease”: there must be some empirical foundation for such a wide-reaching measure. So little testing of the population has been done so far that it cannot be empirically established that widespread public infection presently exists.

“That “persons” is a reference to identifiable infected or possibly infected persons is indicated by attending to another word in section 70(1)(f) – ie, that is not included in the wording of the 3 April order: namely, that persons may be required to be “disinfected”.

“It would be arbitrary if a medical officer required a whole population to be disinfected, without regard to empirical facts, or individual medical conditions or circumstances. The 3 April quarantine order is similarly arbitrary. For example, it means that elderly or infirm people are often unable to access essential services (the people that concerned the Hon. Gerry Brownlee when he made his statement in the House), and that uninfected and low risk people’s lives and businesses are being damaged if not wrecked by such a draconian restriction.”

The powers granted to Dr Bloomfield since the article was published place enormous powers in the hands of the Medical director of Health. Controlling the virus may be one thing, but creating a fatally stabbed economy is another.