Comment

Government should lift lid on lockdown legal advice

The Covid committee's efforts to force the release of legal advice related to the Government's lockdown have led to criticism from some - but the unprecedented powers being granted to the state deserve unprecedented levels of scrutiny, Sam Sachdeva argues

It was a constitutional cat amongst the parliamentary pigeons.

National leader Simon Bridges’ announcement that the epidemic response committee he chairs would issue summonses to the Solicitor-General, the Director-General of Health and Police Commissioner, seeking the legal advice behind the lockdown, created an outcry in some quarters.

The request, cried Labour MP Kiritapu Allan during Parliament’s general debate, was “a disgraceful use of a coercive power” and undermined the separation of powers.

The basis for the committee’s request was repeated, stymied requests to view the legal advice guiding the police and government ministries in their actions during lockdown, as well as the NZ Herald revealing leaked emails suggesting NZ Police was itself unconvinced about the extent of its powers during the early days of Level 4.

Asked about the committee’s summons, Prime Minister Jacinda Ardern argued the legal underpinnings for the lockdown and its enforcement were “all in the public domain”, citing the epidemic notices, declarations of states of emergency and the Cabinet papers that underpinned them.

But the health notices and emergency declarations only go so far in providing legal justification for the Government’s actions to date, while the Cabinet papers Ardern cites have plenty of redactions on the grounds of “legal professional privilege” - precisely what the Opposition is arguing we should see.

Just because the Crown can assert legal privilege does not mean it automatically should, or that it has always chosen to do so.

Jacinda Ardern has already waived legal privilege on the Solicitor General's legal advice at least once this term, in the case of Deputy Police Commissioner Wally Haumaha. Photo: Pool.

Indeed, in late 2018 Ardern released legal advice from the Solicitor-General to support the Prime Minister’s assertion she lacked the grounds to lawfully remove Deputy Police Commissioner Wally Haumaha from office over bullying allegations.

She must have judged then that the public interest in waiving privilege outweighed any arguments for holding to it. That is a judgment the Government is perfectly capable of making now, with an even stronger case to be made that the public has a right to know about the tremendous restrictions being placed on their daily activities (although to be fair, there is also a stronger withholding argument based on the numerous prosecutions for lockdown breaches which could be put at risk).

Some legal experts have expressed unease with Parliament seeking to force the Government’s hand on asserting privilege, suggesting such a move constitutes one branch of government, the legislature, interfering with the powers of another, the executive.

But Parliament’s role is to act as a check on executive power, and we face an executive perhaps as powerful as it has ever been. 

Would forcing the Government to release legal advice be unprecedented? Maybe - but then again, we are living in unprecedented times, as Bridges noted.

“This is a situation like nothing we’ve seen in a century or more. It’s a country in complete lockdown with more restrictions on civil liberties, people’s movements and so on, than ever.

“Now I’m not arguing with that fundamentally. The first four weeks at least, it’s been the right thing to do, but we do need to make sure these things are done legally- that’s very important.”

When the Epidemic Response Committee was established, Speaker Trevor Mallard made a point of highlighting its “unusual powers” to summon people and receive documents, akin to Parliament’s privileges committee.

Sloppiness in the drafting or interpretation of law has very real consequences. Just ask the 24 people who were denied access to visit dying family members during Level 4 restrictions.

Government members of the business committee presumably agreed to that decision - so it seems somewhat rich for them to take offence at the Opposition seeking to use the full extent of those powers.

In any case, the Government should be proactively providing access to the advice, even on a restricted or partial basis, rather than having its arm forced on the matter.

Some have argued this is merely academic; one commentator on social media facetiously accused the Government of “illegally saving lives”.

It is true both that any legal shortcomings could be fixed through retrospective legislation, and that any finding of illegality regarding the lockdown would not mean it was not the right thing to do.

But sloppiness in the drafting or interpretation of law has very real consequences. Just ask the 24 people who were denied access to visit dying family members during Level 4 restrictions - a situation that is only now being reviewed after a High Court judge ruled the Ministry of Health had not properly applied the powers granted to it.

New Zealanders are a largely compliant people, an attitude towards authority which has helped immensely during the lockdown.

But that easy going nature is already being stretched, and a failure to properly answer legitimate questions about whether the state’s powers are being exercised properly risks some reaching breaking point.

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